The alleged leak of Kosovo war crimes case documents from the Specialist Prosecutor’s Office in The Hague could compromise witnesses’ safety and hinder the prosecution of heinous crimes
By Dean B. Pineles*
The stunning news that confidential files have recently leaked from the Kosovo Specialist Prosecutor’s Office in The Hague would provide a thrilling plot for a John le Carré spy novel. But this is not a novel; it’s the real thing, it’s a scandal and it’s serious.
The Specialist Prosecutor’s Office’s mandate to prosecute high-ranking Kosovo Liberation Army veterans for serious crimes allegedly committed during and shortly after the war with Serbia, from 1998 to 2000, could be in jeopardy. And the Prosecutor’s Office’s credibility, already tenuous at best with Kosovo Albanians, could now be in tatters.
As is well known by now, what are alleged to be three batches of confidential Prosecutor’s Office files, including the names of protected witnesses and other highly sensitive information, were delivered to the Kosovo Liberation Army War Veterans’ Organisation in Pristina by anonymous couriers during September.
The leader of the War Veterans’ Organisation, Hysni Gucati, and his deputy, Nasim Haradinaj, have held three press conferences about the documents, and Gucati has urged Kosovo journalists to publish the contents. He has been a vociferous opponent of the Prosecutor’s Office, claiming it is biased against the KLA, and he argues that these documents prove his point.
Haradinaj actually mentioned the names of certain potential witnesses and provided information about where they lived and other personal details.
The files – whose authenticity has neither been independently verified nor denied – have been returned to the Prosecutor’s Office, and so far journalists have declined to publish any of them, apparently out of fear of legal liability.
However, 260 pages of confidential Prosecutor’s Office documents have also made their way to the TV station Top Channel in Tirana, Albania, reportedly from a source at The Hague; certainly a disturbing revelation.
Several pages were recently published on the station’s website, and among other things they contain the names of potential defendants and theories of criminal responsibility such as joint criminal enterprise and command responsibility. Reportedly, the station also plans to publish more documents.
For their part, Gucati and Haradinaj have been arrested and delivered to the Kosovo Specialist Chambers in The Hague for allegedly intimidating and retaliating against cooperating prosecution witnesses, and for distributing confidential information about the workings of the Prosecutor’s Office. The War Veterans’ Organisation’s headquarters in Pristina have been raided and searched.
Coincidentally, the first KLA veteran to be indicted and charged by the Specialist Prosecutor’s Office, Salih Mustafa, was also arrested last week in Pristina and delivered to The Hague. He appeared with his assigned attorney in court on Monday, and exercised his right to postpone entering a plea.
The irony of the situation is striking. At the same time as Mustafa stood before the court, Gucati and Haradinaj were in detention for disclosing confidential information that could adversely affect the prosecution of Mustafa and those KLA veterans who follow. Haradinaj had his first court appearance on Tuesday and challenged the legitimacy of the court. Gucati is scheduled to appear on Thursday.
Witnesses may fear to testify
One must assume that the Prosecutor’s Office is feverishly attempting to identify how and by whom the documents were obtained and leaked, and to minimise the damage.
But even if the internal investigation is successful, much damage has already been done; the genie is out of the bottle.
Why is this so?
One of the fundamental reasons why the international community insisted that Kosovo abandon the EU rule-of-law mission EULEX’s justice system and create a special court outside of Kosovo was to protect the integrity of the investigation into these serious KLA crimes, and to protect sensitive witnesses who may be willing to testify against prominent KLA fighters and war heroes.
Now, the integrity of the investigation has been compromised. If leaks like this can happen, no longer can anything be considered secret.
More importantly, the security of cooperating witnesses has been breached. Any witnesses who may have been willing to testify against KLA veterans and whose anonymity has so far been protected, would have to be seriously concerned about harm to themselves and their families by the mere possibility that their names have been leaked. Actual proof of disclosure would hardly be necessary.
These witnesses may now refuse to testify even with special measures to shield their identity, since their names might be known. This would be a significant setback for the Specialist Prosecutor’s Office, adversely affecting the prosecution of heinous crimes.
It is important to understand that the EU spent an astronomical 156,000,000 euros up to June 2020 on the Specialist Prosecutor’s Office and its companion entity, the Kosovo Specialist Chambers, with another 45,000,000 euros allocated for this year, totalling over 200,000,000 euros, a jaw-dropping number by any objective standard.
They both recently moved into a state-of-the-art building in The Hague in 2019, generously funded by Norway, and employ around 200 people.
Thus one would expect that the Specialist Prosecutor’s Office and the Specialist Chambers would possess the skill, experience and security expertise necessary to fulfil one of their primary responsibilities – protecting confidential files, especially those containing the names of witnesses, from being stolen and disseminated. Yet they have failed in this regard.
There’s no way of knowing how widely the files are circulating. One might reasonably assume that there have been other recipients besides the War Veterans’ Organisation and Top Channel. And there’s no way of knowing if and when any additional files might surface in the future at inconvenient times.
This unfortunate scenario stands as a very sad state of affairs for the Specialist Prosecutor’s Office, which has laboured mightily for years to bring prosecutions forward. And it could not have come at a worse time, just as judicial proceedings have finally begun. /BIRN, October 1, 2020
*Judge Dean B. Pineles is a graduate of Brown University, Boston University Law School and the Kennedy School of Government at Harvard University. He served as an international judge with EULEX from 2011-13. In addition to Kosovo, he has extensive rule of law experience in Russia, Kazakhstan and Georgia.
