WHY PROSECUTION FAILED TO PROVE WHAT 'EVERYBODY KNOWS' - PART THREE

OBVIOUS NEED NOT BE TRUE

The Hague, 09.04.2008.

In the judgment in the Haradinaj, Balaj and Brahimaj case, the Trial Chamber used the murder of Sanije Balaj to show that things that are 'obvious' and that 'everybody knows' need not be true

Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, three former KLA commanders, were charged with dozens of murder. The prosecution called the most evidence and most witnesses to prove the murder of a Kosovo Albanian woman, Sanije Balaj. A total of thirteen witnesses took the stand to testify about her murder. This is one of the reasons why the Trial Chamber dealt with her case most comprehensively in the judgment acquitting Haradinaj and Balaj and convicting Brahimaj, who was sentenced to six years in prison, on two out of thirty-seven counts in the indictment. Another reason for this focus was because the Trial Chamber wanted to show that things that are "obvious' or that 'everybody knows' need not be true.

The judges acknowledge that it might have seemed 'obvious' to them too that Sanije Balaj was killed while she was detained by the KLA, under its authority. All the elements pointed to that: she was arrested by the KLA, her name was on the list of 'Serbian collaborators' kept by the KLA soldiers, she was taken to the KLA headquarters where she was questioned, and her body was found in the Radonjic Lake canal. The forensic analysis showed that she died a violent death. Had the prosecution stopped there and not called any more evidence, the judges admit they would likely have reached the obvious conclusion about Sanije Balaj's fate.

The prosecution, however, continued calling more and more evidence, and the Trial Chamber, giving carefully examined it, found that 'the obvious conclusion would be the wrong conclusion'.

Sanije Balaj was arrested at a KLA check point near the village of Barani on 12 August 1998. She was taken to the makeshift barracks in Barani where she was questioned by Cuf Krasniqi, local KLA commander. Numerous prosecution witnesses described what went on afterwards in different terms.

Cuf Krasniqi claims that after the questioning he ordered her to be released and she was taken home, escorted by Avni Krasniqi. In his evidence before the Trial Chamber, Avni Krasniqi claimed that Idriz Gashi, the commander of Podrimlje, ordered him to take Sanije Balaj to the headquarters in Glodjani. In the words of Avni Krasniqi, Gashi, who had been appointed commander by Haradinaj, took her out of the car and killed her in the forest along the way. A couple of days later, he said, Idriz Balaj came to collect her body and took it away. In September 1998, the body of Sanije Balaj was discovered in the Radonjic Lake canal together with bodies of thirty other Albanian, Serbs and Roma victims.

The Trial Chamber concluded that Idriz Gashi killed Sanije Balaj after she was released from the KLA headquarters. In its opinion, Gashi was not a commander but a mere KLA 'soldier', as he was described by Haradinaj in one of his orders. Despite the fact that the evidence was called showing Sanije Balaj was arrested under suspicion of collaboration with Serbian authorities, the Trial Chamber found it could not conclude that this was the reason why she was murdered. There are 'reasonable alternatives' to this conclusion, one of them being that Sanije Balaj was killed because she carried a large amount of money - some DM 2,700.

The Trial Chamber found that the prosecution failed to prove the existence of the joint criminal enterprise aimed at the expulsion of Serbs and the suppression of actual or alleged collaboration of Kosovo Albanians. Consequently, none of the three accused could be found guilty of the crimes committed by other KLA members, such as Gashi. The Trial Chamber found that Avni Krasniqi's testimony about the involvement of Idriz Balaj in the removal of Sanije Balaj's body was 'not corroborated enough' and inconsistent with the testimonies of other witnesses and other physical evidence.