14.02.2017.
Hiding in plain sight – Kosovo’s protected witnesses
trials, war criminals, witnesses
Halil opened the metal door and instinctively placed his right hand on the Austrian-made Glock pistol in a holster on his belt. A camera kept watch above the entrance to the house, which was set back from the road. The precautions have become ritual.
Seventeen years have passed since Halil (not his real name) says he was detained and tortured by Kosovo Albanian guerrillas in a secret prison in the mountains of northern Albania.
A Kosovo Albanian, Halil’s crime had been to support the guerrillas’ rivals for post-war power.
BIRN cannot identify Halil by his real name or describe his appearance or whereabouts for the sake of his security, other than to say that he lives in his native Kosovo in the midst of those who would have him silenced.
Within months, he expects to take the stand against his torturers as part of a potentially explosive bid to shed light on the darker side of Kosovo’s fight for freedom from Serbian repression, a fight that won the decisive backing of NATO bombers in 1999.
A newly-created court, based in the Netherlands, is expected to issue its first indictments within weeks or months.
The court’s success will rest on Halil and other Kosovo Albanians ready to testify against politically powerful former guerrillas, heroes to many of their kin.
The stakes are high, both for Kosovo’s stability and its consolidation as an independent state, and for the witnesses who have come forward.
Others before them have paid with their lives, victims of the kind of systematic intimidation that has dogged efforts to bring to justice those guerrillas suspected of war crimes.
“They tortured and killed us,” Halil said. “I live to bear witness.”
The court, which is funded by the European Union, declined to provide any details for this story of the kind of measures it is taking to ensure the safety of witnesses, saying only that work was under way “with everyone making sure that adequate measures are in place to protect witnesses before, during, and after the trial”.
Clint Williamson, the American investigator whose preliminary probe provided the basis for the court, warned in 2014 of “ongoing” efforts to undermine his work through interference with witnesses. But indictments, he said, would follow.
“I live to bear witness”– anonymous Kosovo Albanian witness against former guerrilla fighters. –
Due to the time that has elapsed and the paucity of material evidence, prosecutors will rely heavily on eyewitnesses. Many are believed to have already relocated outside of Kosovo and some will have been given new identities. But others, like Halil, refuse to leave.
“It’s difficult to hide in Kosovo,” said Robert Dean, a former senior prosecutor with the United Nations mission that took over the running of Kosovo after the 1998-99 war.
But, he reasoned, “I don’t think they would agree to go forward with this chamber unless they had the mechanisms in place [to protect witnesses].
‘Dark cloud over the country’
The new court – known as the Specialist Chambers and Specialist Prosecutor’s Office – has been set up to try ex-KLA figures behind what Williamson described as a “campaign of persecution” against Serbs and Roma after Kosovo’s 1998-99 war, and the “extrajudicial killings, illegal detentions and inhumane treatment” of Kosovo Albanians deemed to be political rivals.
Williamson was appointed by the EU to look into accusations made against the former guerrillas in an explosive 2010 report by Council of Europe investigator Dick Marty, which included the claim that the KLA had removed organs from Serb detainees in northern Albania for sale abroad.
The EU announced the creation of a special court to pursue Williamson’s findings and Kosovo, after much hand-wringing and anger, endorsed the move in a parliamentary vote in August 2015.
Williamson, however, warned that sabotage tactics were already under way.
“As long as a few powerful people continue to thwart investigations into their own criminality, the people of Kosovo as a whole pay the price as this leaves a dark cloud over the country,” he said.
Halil has already testified twice in local trials of ex-guerrillas, brought by a European Union mission, EULEX, that took over the handling of sensitive war crimes and corruption cases in Kosovo when it declared independence from Serbia in 2008.
He is under no illusion that his identity remains a secret.
“They promised us that we will not be known,” he said of European prosecutors during the first trials. “But I think they (the ex-KLA) know us well.”
Halil’s protection amounts to the Glock pistol, a bullet-proof vest and self-imposed restrictions on his movement.
He said he was offered relocation outside of Kosovo, but declined.
“I am not young. I have children with their families here. We are a big family and can’t all move,” he said.
Investigation shrouded in secrecy
Halil’s family was targeted by the KLA for its affiliation with the party of Ibrahim Rugova, who led a decade of passive resistance to Serbian rule only to be eclipsed by the guerrilla fighters in the late 1990s.
Political assassinations, detention camps and a wave of revenge attacks on Serbs and Roma after the war left a stain on the guerrilla insurgency, which had won the support of Western powers as they tried together to halt the expulsion and massacre of Kosovo Albanian civilians by forces under late Serbian strongman Slobodan Milosevic.
The guerrillas took political power after the war, and critics say that for a number of years Kosovo’s Western backers shied away from holding them to account in the interests of stability.
More recently, several trials held in Kosovo have convicted a number of guerrillas, but the process has long been hampered by the nature of Kosovo’s close-knit society of 1.8 million people, where testifying against KLA fighters is seen by many as treason.
In a country barely half the size of Wales, the former guerrillas hold sway in politics and the security structures.
Witnesses against the ex-KLA “are at risk and are in really serious danger”, said Natasa Kandic, founder of the Belgrade-based Humanitarian Law Centre and a dogged advocate for victims of war crimes in Kosovo and elsewhere in the former Yugoslavia.
Kandic, however, said she saw cause for optimism.
“There are some expectations that it will be different,” she said of the new court, speaking in English.
Kandic said the investigative work of the new court had been “very secret until the end”.
“Nobody succeeded in discovering who would be accused, who are the defendants, the witnesses.”
“It is important to see that people are safe,” Kandic said. “If witnesses are not safe, it will produce the feeling in Kosovo that nobody is free to… speak out.”
Stefan Trechsel, a Swiss judge who took part in the trial of Milosevic in The Hague, said it was of vital importance that the list of witnesses remained secret.
“That is a task, of course, for the investigating authorities in the first place. They will be on the terrain, they will have to speak to many, many people and they must do this in a way that does not show whom they regard as witnesses and whom they do not regard as witnesses.”
Years spent in hiding
The past is littered with lessons.
In March 2011, this reporter interviewed a former KLA prison guard who was due to testify later that year in the trial of 10 former KLA fighters, including Fatmir Limaj, an ex-guerrilla commander, former government minister and then close confidant of Hashim Thaci, Kosovo’s current president.
The 10 (Limaj, Nexhmi Krasniqi, Naser Krasniqi, Naser Shala, Behlul Limaj, Refki Mazreku, Sabit Shaba, Shaban Shala, Arben Krasniqi and Besim Shurdhaj) were accused of war crimes against civilians and prisoners of war at a KLA detention camp in the central Kosovo village of Klecka in 1999.
The identity of the witness, Agim Zogaj, had been declared secret by European prosecutors and he was known only as Witness X. Six months after the interview, however, Zogaj was found hanging from a tree in a park in the western German city of Duisburg, a month before the so-called Klecka trial was due to start. German authorities ruled the death suicide, but Zogaj’s family maintains he was killed.
‘We thought he was going to the US’
“We thought he was going [to be relocated] to the US,” she said. But he was back two weeks later. She said the UN mission in Kosovo had told him “they could only send him to Montenegro, and he refused to go there”, likely given Montenegro’s close proximity and large ethnic Albanian community.
Two months later, in April 2003, Ilir was shot dead at the wheel of his car near the family home in the western Pec/Peja region of Kosovo. An aunt of his, five months pregnant with twins, also died in the vehicle. Kosovo police launched an investigation but no one has ever been charged with Selimaj’s killing.
“This case had high stakes, politically,” the UN prosecutor in the case, Kamudoni Nyasulu, told BIRN.
Nyasulu said some witnesses in the case had some form of police security but were “not exactly under a witness protection program.” Selimaj was one of them.
“This involved a variety of safety/security actions that were taken at various points of the trial process,” he said. “This did not guarantee 24-hour protection and may not have involved restriction to… movement or communication.”
The Selimaj family never submitted a formal complaint to the UN over the killing and a spokesman for the mission said it had no record of the case.
Nyasulu recalled having lunch, accompanied by bodyguards, over the road from the court during hearings before the investigating judge, when a suspect who Nyasulu said was running for political office sat at his table. “Do you know that right here I can kill you and nothing will happen,” Nyasulu quoted the man, whom he did not identify, as saying.
Zogaj spoke of years spent in hiding, of attempts on his life, attempted bribery and of pressure from associates of Limaj for him not to testify.
Zogaj said he had been offered, by people close to Limaj, 50,000-60,000 euros to withdraw from the case but that if money was the solution he would seek 600,000 instead to compensate for the years of distress caused to his family. In another instance, he said he was offered a monthly payment of 500 euros and told to open a bank account in his wife’s name, which he did.
But in both cases he said he received nothing. The father of his daughter’s husband put pressure on him to withdraw, Zogaj said. “They have been using him as a tool, so that he can be involved instead of them,” he said.
Eventually, Zogaj said he had sought a meeting with Limaj, in the presence of close relatives, in order to ‘reconcile’ and lay the matter to rest. He said it took place in the village of Lladrovc, close to Klecka, on March 2, 2011, two days before the interview. Limaj, however, refused to stand to shake his hand, Zogaj said, arguing he had done nothing wrong to the Zogaj family.
At the time of the interview, Zogaj was unsure whether to testify and was unclear over the extent to which he had the protection of EULEX. He was considering leaving Kosovo but that he had turned down an offer by EULEX to move him to Bulgaria.
“Neither our own police nor EULEX can guarantee for me. I am with God only, just with God,” he said. “I hope that my blood will be the last that is spilled.”
Zogaj had kept a diary of his time in the detention camp that was central to the prosecution case. But after his death, judges ruled his evidence inadmissible and Limaj and his co-defendants were acquitted. In late 2012, the decision on the diary was reversed and a retrial ordered. In September 2013, all 10 were again acquitted, with the presiding judge declaring Zogaj’s evidence inconsistent, contradictory and “wholly unreliable”.
Limaj, at the time a senior member of Thaci’s ruling Democratic Party of Kosovo (PDK), had already been acquitted in 2005 of crimes against humanity and violations of the laws or customs of war by the UN war crimes court in The Hague over the mistreatment, torture and murder of Serbs and Albanians at another KLA detention camp. Co-defendant Isak Musliu was also acquitted, while a third accused, Haradin Bala, was convicted and sentenced to 13 years in jail.
Zogaj said he had first been approached by Hague investigators in connection with their pursuit of Limaj and that was when his ordeal began. In the end he was not called to testify in that trial.
Limaj returned to a hero’s welcome, but in October last year he was charged with war crimes again, this time by Kosovo’s own Special Prosecution, over the killing of two Kosovo Albanian civilians in 1998. Relatives of one of the victims have spoken publicly about what they know of the killing. His lawyer said the charges were unfounded. The trial began in January this year.
BIRN submitted questions to Limaj via his party cabinet regarding Zogaj’s account.
Endrit Shala, Limaj’s chief of staff, replied: “As you are aware as you (BIRN) have monitored the entire process, the court has treated all the evidence presented to the prosecution and ruled them admissible in court as well as other evidence presented in this case (including the testimonies of Witness X), and based on all these proofs and evidence after treating them, the court ruled that Mr. Limaj is innocent.
“I would like to remind you that for the Kleqka (Klecka) trial, Limaj has been declared innocent twice by EULEX judges of the Basic Court and EULEX judges of the Court of Appeals.”
“I would also like to emphasise that there were no allegations presented in front of the court during this trial about any interference or influence of the witnesses, as if such allegations were made, the court and the prosecution would react.”
EULEX has repeatedly declined to discuss Zogaj’s death or whether he was under its protection at the time. A spokeswoman declined to discuss the issue of witness protection.
“The mission cannot discuss the functioning or security issues related to the protection of its witnesses,” the spokeswoman said.
Identity change
Both Zogaj and Halil epitomise the challenge of protecting witnesses in Kosovo, where identities rarely remain secret and the ties of family and home are so tight that the rigours of a full witness protection programme, possibly including a change of identity, often prove too much.
Trechsel, the Swiss judge in the Milosevic trial, compared changing identity to “civil death”.
“Practically all relations are severed, and it is of a doubtful degree of security because those who are after those persons often find out, despite all measures of secrecy,” he said.
Kamudoni Nyasulu, a former UN prosecutor, said that during his time in Kosovo between 2001 and 2003 he knew of only one Kosovar witness who accepted the conditions of full protection.
“The one man that I recall going into protection broke the rules within months,” he told BIRN by email from his native Malawi. “The extended family ties are too strong for a Kosovar [an ethnic Albanian] to keep a man incommunicado for any extended period.”
BIRN interviewed family members of two witnesses who have been relocated out of Kosovo ahead of the new court’s start. They said that new identities are among the options being offered.
It is believed that many of the new court’s witnesses are already outside of Kosovo, either having already emigrated or having been relocated for the purposes of the court.
All have the option of having their faces and voices distorted when they come to give evidence.
“It is impossible to have completely anonymous witnesses” – Frank Hopfel, a former judge at the UN tribunal in The Hague
But none will enjoy total anonymity, given that defendants have the right to know who is testifying against them and to prepare a cross-examination with their defence counsel.
“Therefore, it is impossible to have completely anonymous witnesses,” said Frank Hopfel, an Austrian judge who also worked at the UN tribunal in The Hague.
“We cannot have anonymous witnesses, but only distortion of face and voice towards the public and the possibility to use [written] witness statements.”
Italian model
Witnesses elsewhere in Europe have complained of the price they have to pay in terms of the restrictions of a protection programme.
“Often we don’t know which is the more dangerous enemy – the mafia or the state bureaucracy,” said Sicilian Ignazio Cutro, who testified against the Italian mafia and now heads an association of protected witnesses. Cutro has bodyguards, but can make public appearances.
A beefy man with greying hair at the temples, Cutro said the red tape and restrictions involved in being a protected witness were suffocating. Twice he cancelled interviews with this reporter because of security concerns voiced by his bodyguards.
“I choose to remain in my land, because I am convinced that it should be the mobsters who leave from here, not me,” he said.
“But one thing is certain – sooner or later the state will forget us… unlike the mobsters, who do not forget.”
Italian High Prosecutor Maurizio De Lucia, however, is proud of the state’s achievements in protecting witnesses and tackling the Sicilian Cosa Nostra.
He spoke to BIRN in his office at the Court of Palermo, in the week that marked the 24th anniversary of the mafia murder of Giovanni Falcone, the respected Palermo prosecutor whose death galvanised the anti-mafia movement. Italy threw money and men at the fight, going after in particular the mafia heads in an effort to disrupt their organisation.
While the mafia remains a potent force, the country has come a long way from the blood-soaked eighties and nineties.
“In 25 years, no witness has been murdered,” said De Lucia.
One of a number of officials involved in selecting witnesses for official protection, De Lucia said Kosovo would do well to follow the Italian model by which the work of protecting witnesses and gathering testimony is split between two distinct administrative bodies.
“An administrative authority should take care of the security of the witnesses, if possible, one that is neutral,” he said. Protection involves relocation, new identities, physical and financial security. It has an operating budget of 40 million euros per year.
The European Council in June 2016 approved a budget of 29.1 million euros for the running of the new Kosovo court up to June 2017.
Procedural issues
In an interview with BIRN in November, the new court’s chief prosecutor, American David Schwendiman, said witness protection was a “big challenge”.
Declining to discuss specifics, he said: “Protecting those who we estimate are vulnerable or who become vulnerable because of participation in this process is absolutely vital. I have the authority to do that, I got assurances of the assistance to help me do that”.
One issue he will want to overcome is the legal confusion that marred previous efforts, experts say.
Local war crimes cases brought first by the UN mission, UNMIK, and then EULEX were plagued by problems of intimidation.
The cases were tried by a mixture of local and foreign prosecutors and judges, working according to a legal framework that was partly a hangover of the Yugoslav era and partly imposed by the UN. Court rules were inconsistently applied, jeopardising witnesses, while foreign staff members sometimes did not stay long enough to get to grips with Kosovo’s specific environment and the dangers witnesses faced.
In one instance, Nyasulu, the former UN prosecutor in Kosovo, said a case he was involved in was split into two, meaning one group of suspects was tried first and another immediately after. The witnesses were the same.
“Obviously this heightened the danger against the witnesses and myself,” he said. “I was living in a military… barracks to augment my security 24 hours. The witnesses were in their homes.”
In another case, under EULEX, a protected witness told BIRN that his identity was leaked, he believes by the defendant or the defendant’s lawyers. He was relocated outside of Kosovo, but said relatives who stayed behind became the target of intimidation. A relative eventually took the stand to dispute the man’s evidence. “I did it for the sake of those who are alive,” the relative, who cannot be identified, told BIRN.
Dean, the former prosecutor who worked both under UNMIK and EULEX between 2005 and 2009 and also served as head of UNMIK’s justice department, said: “The consistent application of the law was a big obstacle for everybody.”
Speaking of the new court, he said: “I know that they will certainly address those issues and I think that the procedural law as they develop it for the special chamber will take into consideration how to deal with that.”
Nevertheless, the court, which was established under Kosovo law, will have to rely to a degree on the cooperation of Kosovo’s government, which includes the main party to emerge from the KLA ranks, the PDK.
“An essential element of mutual trust and good will between Kosovar institutions and the Specialist Chamber is necessarily assumed,” Dean said.
Hopfel said the new court would have to make very clear to the government that “any interference with the administration of justice will be subject to sanctions”.
Courage
Kosovo took over responsibility for war crimes cases in late 2014 and is in the process of developing a witness protection programme. Trust, however, is in short supply, said Besim Kelmendi, a prosecutor with Kosovo’s Special Prosecution.
“Due to the political and historical context, and a tradition of not believing in justice, witnesses still do not believe in Kosovo courts,” Kelmendi told BIRN.
“Under the Hague tribunal, UNMIK and EULEX, there were systematic failures in the protection of witnesses.”
BIRN wrote to the press office of the UN tribunal in The Hague about complaints regarding its system of witness protection but received no reply. BIRN also contacted Helena Vranov Schoorl, head of victim and witness support at the tribunal, who said that a study of witness experiences with the court suggested more should be done to develop and standardise support mechanisms.
An UNMIK spokesman also declined to discuss the mission’s record in witness protection.
Hopfel, the judge in the UN tribunal, said the new court’s options were limited and that much would come down to simple reassurance.
“To strengthen their courage,” he said, “it is the only way.”
Halil, the witness BIRN spoke to, said that European investigators had told him to call them if he had the slightest concern. “I live from day to day,” he said. “Life with such limitations is hard.”
In the valley, gunshots rang out, likely from a family celebration. Halil said he felt increasingly under threat. “I am afraid for my family, not for myself,” he said.
“They should be in graves,” he said of his tormentors. “Only then will we be equal.”
(Published on Balkan Insight, 14.02.2017.)
