The prosecution case in the retrial of former Kosovo Prime Minister Ramush Haradinaj before the International Criminal Tribunal for the former Yugoslavia (ICTY) got off to a rocky start, hours into the proceedings last week, after its key witness refused to testify.

By Radosa Milutinovic in The Hague

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Shefquet Kabashi - whose testimony was central to the retrial - not only repeatedly refused to answer the prosecutor's questions, but also cast doubt on the truth of his previous statements to the investigators. Those statements, he even suggested, were elicited by the investigators “who draw your blood slowly [through a] straw”.

Haradinaj was the leader of the ethnic Albanian Kosovo Liberation Army (KLA) which was fighting a war for Kosovo's independence against Serbian security forces in 1998. He and his subordinates Idriz Bala and Lahi Brahimaj are accused of crimes against Roma, Albanian and Serb civilians at the KLA's detention center in Jablanica in western Kosovo.

No prison?
Kabashi was a KLA prison guard at Jablanica. The ICTY said, "his  testimony  relates to the defendants’ alleged  responsibility for crimes committed at the KLA headquarters and the prison in Jablanica”.

Kabashi has, however, denied even the existence of a prison and prisoners in Jablanica, despite his own earlier signed statements to the contrary.

“There was no prison in Jablanica, I can swear about that...I saw no prisoners, people could easily go in and out...I don't know that anything forbidden happened there”, Kabashi said.

Faced with prosecutor Paul Rogers' persistent questions, Kabashi was consistently defiant, offering “I don't know”, “I can't remember” or long anti-Tribunal ramblings, instead of answers. Looking tormented and confused at moments, he was particularly evasive about the reasons which prevented him from testifying.

Witness intimidation problem
The problem of alleged or perceived witness intimidation in Kosovo was a regular feature of the first trial of Haradinaj et al. In 2008, the court acquitted Haradinaj and Bala of 37 war crimes charges and sentenced Brahimaj to six years in prison. The Trial Chamber said that “many witnesses cited fear as a prominent reason for not wishing to appear...to give evidence” and that, as a result, judges “gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe.”

It was precisely in this atmosphere, in June 2007, that Kabashi twice refused to testify at the first trial, claiming that witness protection measures are effective “only inside the courtroom”. Faced with contempt of court charges, Kabashi fled to the US, where he is a citizen, in violation of the judge's order to stay in The Hague.

The Trial Chamber's refusal to allow prosecutors more time to obtain critical testimonies from Kabashi and another protected witness has been the sole ground of the prosecution's appeal against the acquittal of Haradinaj and Bala and inadequate sentencing of Brahimaj in 2008.

In 2010, the Appeals Chamber granted the prosecution's appeal, ordering the partial retrial of Haradinaj on charges connected to Jablanica. According to the ruling, the trial judges "had erred in failing to secure Kabashi's testimony and that of one other witness, thereby depriving the prosecution of vital support for its case."

Reappearance & arrest
On August 17, the day before the beginning of Haradinaj's retrial, Kabashi suddenly reappeared in the Netherlands from the US and was immediately arrested at the airport, under an ICTY warrant.

As it turned out, his mere presence in the courtroom was anything but helpful to the prosecution case. In the absence of his testimony, prosecutor Rogers, however, managed to bring into evidence a transcript of Kabashi's testimony given in 2005. This was at yet another trial of a KLA commander named Fatmir Limaj, who was later acquitted.

Haradinaj's defence lawyer Ben Emmerson immediately requested the exclusion of that testimony on the basis that the defence had been “deprived” of its right to cross-examine Kabashi because of his refusal to answer their questions. The Trial Chamber still has to rule on this.

Bearing in mind that Haradinaj's retrial had been ordered for the purpose of hearing Kabashi and another witness, known only as X, it appears now that the prosecution's failure or success hinges on the testimony of Witness X. Whether or when will he testify is still unclear.

In another twist to this peculiar case, Kabashi last Friday pleaded guilty to contempt of court charges. He faces a fine of up to 100,000 euros, a prison sentence of up to seven years or both. In the meantime, Kabashi will remain in the Tribunal's custody.