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Lahi Brahimaj: Pre-Trial Brief

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Lahi Brahimaj: Pre-Trial Brief IT-04-84bis-PT 1853 D1853 - D1838 11 July 2011 MC THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case Number IT-04-84bis-PT IN TRIAL CHAMBER II Before: Judge Bakone Justice Moloto, Presiding Judge Burton Hall Judge Guy Delvoie Registrar: Mr John Hocking Date filed: 11 July 2011 THE PROSECUTOR v. RAMUSH HARADINAJ IDRIZ BALAJ LAHI BRAHIMAJ PUBLIC PRE-TRIAL BRIEF ON BEHALF OF LAHI BRAHIMAJ The Office of the Prosecutor Counsel for Ramush Haradinaj Mr Paul Rogers Mr Ben Emmerson QC Mr Rodney Dixon Counsel for Idriz Balaj Mr Gregor Guy-Smith Ms Colleen M Rohan Counsel for Lahi Brahimaj Mr Richard Harvey Mr Paul Troop 1852 1 I. Introduction...................................................................................................................................1 (i) The Burden and Standard of Proof .....................................................................................1 (ii) Particular evidentiary issues: the Credibility of Witnesses...............................................4 (iii) Particular legal issues: Alibi................................................................................................4 (iv) Particular Legal Issues: Disclosure.....................................................................................6 (v) The Indictment in Context...................................................................................................6 II. The Nature Of Lahi Brahimaj’s Defence..................................................................................10 (i) Lahi Brahimaj and Jabllanicë............................................................................................10 (ii) Lahi Brahimaj and the General Staff of the KLA............................................................12 III. Response To The Prosecution’s Pre-Trial Brief: General Allegations In The Indictment14 (i) Individual Criminal Responsibility...................................................................................14 (iii) “Joint Criminal Enterprise”...............................................................................................14 IV. Conclusion..............................................................................................................................15 I. INTRODUCTION 1. In response to the Prosecution’s Pre-Trial Brief, filed 20 June 2011, (“Prosecution Pre-Trial Brief”),1 Counsel for Lahi Brahimaj respectfully file this Pre-Trial Brief pursuant to Rule 65ter (F) of the Rules of Procedure and Evidence (“the Rules”) of the Tribunal. Our client has not seen the Pre-Trial Briefs filed on behalf of his co- accused. In the event that these raise further issues of law and fact relevant to Lahi Brahimaj’s case, his Defence may apply for leave to make further submissions on such points. (i) The Burden and Standard of Proof 2. Article 21(3) of the Rules places the burden of proof firmly on the prosecutor and reiterates the basic international human rights principle of the presumption of innocence. This burden remains on the prosecutor throughout the entire trial. Rule 87(A) sets the standard by which that proof must be established: “A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.” 1 Prosecutor v. Haradinaj, Balaj and Brahimaj, IT-04-84bis-PT, Prosecution’s Submission Pursuant to Rule 65 ter (E) with Confidential Annexes I, II, and III, 20 June 2011 (hereinafter, “Prosecution Pre-Trial Brief”). Case IT-04-84bis-PT Pre-Trial Brief Filed On Behalf Of Lahi Brahimaj 11 July 2011 1851 2 3. The Office of the Prosecutor (“OTP”) brings the case against Lahi Brahimaj and the OTP must prove beyond a reasonable doubt every element alleged against Lahi Brahimaj in its Revised Fourth Amended Indictment (“the Indictment”) dated 21 January 2011.2 Where more than one inference may reasonably be drawn from evidence presented to the Trial Chamber, it is the duty of the Chamber to consider with care whether any such inference may be inconsistent with the guilt of the accused. If such an inference may reasonably be drawn, then the burden and standard of proof require that an acquittal be entered in respect of that count.3 4. This limited partial re-trial is unique. The OTP failed to discharge their burden of proof in the original trial in relation to all but two of the counts alleged against Lahi Brahimaj. His Defence maintains that, regardless of such additional testimony as the OTP now seek to adduce on the re-trial, they remain incapable of providing evidence of the standard and quality which could prove guilt beyond a reasonable doubt. 5. It is agreed by the parties that there was an armed conflict in existence from 22 April 1998.4 This is not in dispute in this retrial. Thus, in the context of the present indictment, the OTP must prove in respect of each count alleged in the Indictment against Lahi Brahimaj: 5.1. First, that a nexus existed between such armed conflict and each of the alleged violations of the laws and customs of war; 5.2. Secondly, an agreement between Lahi Brahimaj and his co-accused, as well as those who are alleged to have agreed together with them, to consolidate the total control of the KLA over the Dukagjin Operational Zone by the unlawful 2 Prosecutor v. Haradinaj, Balaj and Brahimaj, IT-04-84bis-PT, Submission of Revised Fourth Amended Indictment, 21 January 2011. 3 Prosecutor v. Delalic, Mucić, Delic, and Landžo (“Čelebići case”), IT-96-21-A, Judgement, 2o February 2001, (hereinafter, “Delalic et. al. Appeals Judgement”) paragraph 458. 4 Prosecutor v. Haradinaj, Balaj and Brahimaj, IT-04-84bis-PT, Joint Prosecution and Defence Submission on the Existence of an Armed Conflict in Kosovo with Annex A, 19 November 2010. Case IT-04-84bis-PT Pre-Trial Brief Filed On Behalf Of Lahi Brahimaj 11 July 2011 1850 3 removal and mistreatment of Serb civilians and by the mistreatment of Kosovar Albanian and Kosovar Roma/Egyptian civilians, and other civilians, who were, or were perceived to have been, collaborators with the Serbian Forces or otherwise not supporting the KLA; 5.3. Thirdly, the existence of an unlawful detention camp at Jabllanicë; 5.4. Fourthly, the responsibility of Lahi Brahimaj for such camp; 5.5. Fifthly, the commission in such camp of crimes within the jurisdiction of the Tribunal by Lahi Brahimaj or by those allegedly acting in concert with him; and 5.6. Sixthly, the responsibility of Lahi Brahimaj for planning, instigating, ordering, committing, or otherwise aiding or abetting in the planning, preparation or execution of any crimes as are alleged in the Indictment to have been committed at other times and places by other persons allegedly acting in concert with him. 6. For the purposes of the present Indictment, the Prosecution must prove beyond a reasonable doubt in relation Lahi Brahimaj that a nexus existed between the armed conflict, and each of the crimes alleged in the Indictment. In determining whether or not such a nexus existed, the Chamber may take into account, inter alia, whether the perpetrator is a combatant, whether the victim is a non-combatant, whether the victim is a member of the opposing party, whether the act may be said to serve the ultimate goal of a military campaign, and whether the crime is committed as part of or in the context of the perpetrator’s official duties.5 5 Kuranac, Kovac and Vukovic, IT-96-23 & IT-96-23/1-A, Judgement, paragraph 59; Prosecutor v. Limaj, Musliu and Bala, IT-03-66-T, Judgement, 30 November 2005 (hereinafter, “Limaj Trial Judgement”), paragraph 91. Case IT-04-84bis-PT Pre-Trial Brief Filed On Behalf Of Lahi Brahimaj 11 July 2011 1849 4 7. For the reasons set out below, we will submit that the OTP will not be able to satisfy this Trial Chamber of these threshold requirements to the high standard required under the Statute and Rules. (ii) Particular evidentiary issues: the Credibility of Witnesses 8. The Defence for Lahi Brahimaj respectfully draws the attention of the Trial Chamber to principles of assessing the credibility of witnesses. 9. Particularly in cases of uncorroborated testimony from a witness, it is crucial to exercise caution in whether the witness is deemed to be a credible source of evidence. In Common Law jurisdictions judges have a duty: “to advise a jury to proceed with caution where there is material to suggest that a witness’s evidence may be tainted by an improper motive.”6 Care must be taken in evaluating the evidence of a witness whose evidence may be coloured by motives of jealousy, spite, levelling of an old score, or hope of financial advantage.7 (iii) Particular legal issues: Alibi 10. Lahi Brahimaj has consistently maintained that throughout the indictment period he was a member of the General Staff of the KLA, based in the area of the Berisha Mountains in Drenica. For the majority of that period he was not physically present in Jabllanicë, still less was he able to exert command or control there. He accepts that he visited Jabllanicë and stayed overnight there on more than one occasion during the indictment period. Since the Indictment does not specify precise dates on which individual criminal acts are alleged to have occurred, Mr. Brahimaj is not in a position to provide notice that he was elsewhere when such acts were committed, if indeed they were committed. In these circumstances, Mr. Brahimaj is not in a position to aver that he could not have committed the crimes alleged against him. 6 See, eg, R. v Beck, 74 Cr App R 221, CA (Court of Appeal for England
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