The ethnic Albanian separatist group, the Kosovo Liberation Army (KLA) used "legitimate force" when it fought for independence from Serbia in 1998 and 1999. But it used "illegal means" against those who opposed it, said prosecutor Paul Rogers in his opening statement at the first ever partial re-trial before the International Criminal Tribunal for the Former Yugoslavia (ICTY) on Thursday.

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By Geraldine Coughlan and Richard Walker in The Hague

Former Kosovo Prime Minister Ramush Haradinaj is now back in the dock after being acquitted in 2008 of  crimes against Albanians, Serbs and Roma in 1998. Appeals judges ordered the partial re-trial last year, after they found witnesses were intimidated during his original trial.

Haradinaj is a prominent former KLA leader and the most senior Kosovo figure to stand trial before the tribunal. He is being re-tried along with two other former KLA commanders, Idriz Balaj and Lahi Brahimaj. Wearing dark suits, the three sat passively in court as they listened to new accusations of murder, torture and cruel treatment.

Fresh witnesses
The prosecution opened its case by claiming the three were part of a joint criminal enterprise that murdered and tortured its victims, "regardless of their ethnicity, whether they may be Serbs or Roma." The prosecution argued that the KLA took control of an area in western Kosovo through the "brutal elimination of those perceived to be collaborating with the Serbs or not supporting" the ethnic Albanian forces.           

The partial re-trial focuses on six counts in the indictment referring to the torture and murder of prisoners in the KLA-run camp in Jablanica. According to the Appeals Chamber, the trial ended before any evidence on those crimes was called: two unwilling prosecution witnesses, former prison guard in the camp Shefqet Kabashi and another witness, who was protected, were not heard before the trial ended.   

Haradinaj is still considered to be a hero by many of Kosovo's ethnic Albanian majority. Kosovo, Serbia's southern province, declared independence in 2008 but it has not been recognised by Belgrade.

Imagine there was no first trial
The ICTY's first partial re-trial is set to last for ten months, but already it seems set to be plagued by a host of complexities. The prosecution and the defence became embroiled in a legal tug-of-war within an hour of the trial's beginning over whether a book, mentioned in relation to the previous trial, could be admitted as evidence in the re-trial.

Both counsels repeatedly referred to the first trial despite being explicitly told not to by presiding Judge Bakone Moloto, who had a hard time emphasising that the re-trial is a 'new trial' which would proceed as if 'there had been no previous trial at all'.

Interrupting one bad tempered and personal exchange Judge Bakone Moloto stressed that, “anything that has to be proved is going to be proved here. The ruling of this chamber is not going to depend on the ruling of the previous chamber”, he said.

Known knowns and unknown knowns
Complications of evidence admissability are expected in this trial – some of the evidence on which the prosecution is seeking to rely has already been raised and, for some, discredited in the previous trial. Defending counsel Ben Emmerson described one such piece of evidence, a collection of newspaper interviews with Haradinaj, as “misleading, forensic rubbish (which should be) thrown in the bin”.

Distinguishing between documentary evidence and witness testimony from the first trial will challenge the sharp minds of the lawyers in this case. Their task is to forget what they thought they knew and argue the case for what they hope to become fact. If only Donald Rumsfeld were here.