More than 21 years have passed since Mehmet (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, Mehmet’s sin had apparently been to support the guerrillas’ political rivals, the LDK, during the turbulent years of 1998-99 when Kosovo Albanians took up arms to resist Slobodan Milosevic’s regime in their quest for independence.

BIRN cannot describe Mehmet’s appearance or reveal his whereabouts for the sake of his security.

He has already been interviewed twice by the Hague-based Kosovo Specialist Prosecutor’s Office about his torturers, who he says were members of Kosovo Liberation Army, KLA, whose armed struggle for freedom succeeded when it got decisive military backing from NATO forces in 1999.

He also agreed to testify as a protected witness in court at the Kosovo Specialist Chambers in The Hague, which was set up to try former KLA fighters for wratime and post-war crimes committed from 1998 to 2000, but he didn’t want to be relocated outside Kosovo for his safety.

But since the KLA War Veterans’ Organisation announced that it had got hold of more than 4,000 case documents from the Hague prosecutors, including a list of witnesses, which it said were delivered anonymously to its offices in Pristina, Mehmet has been worried.

“I explained to the investigators what has happened to me and others. It has been hell, and now, for the sake of my family, I don’t want to be mentioned and have any further trouble. But I am afraid they know my name now,” he said.

Mehmet’s case epitomises the challenge of protecting witnesses in Kosovo, a small, close-knit country where identities are hard to keep secret and the ties of family and home are strong.

Witness protection has been one of the key issues facing the Kosovo Specialist Chambers after witnesses were intimidated in previous Kosovo war-related trials at the International Criminal Tribunal for the Former Yugoslavia and at domestic courts in the country.

The Specialist Chambers reacted quickly after the documents were leaked. EU security police arrested the leaders of the KLA War Veterans’ Organisation, Hysni Gucati and Nasim Haradinaj, and transferred them to The Hague to face charges.

Gucati and Haradinaj had called on Kosovo media to publish the leaked war crimes case documents. They claimed that the documents prove that the Hague court is anti-Kosovo Albanian.

The court is legally part of Kosovo’s justice system even though it is lcated in the Netherlands, but it is resented by many Kosovo Albanians who see it as an insult to the KLA’s war for liberation from Slobodan Milosevic’s repression. It was only established under pressure from Kosovo’s Western allies.

But no Kosovo media outlet has answered the veterans’ call to publish the documents, although Albanian TV station Top Channel did publish what it claimed were extracts from the war crimes case against Kosovo President Hashim Thaci.

‘This leak has shaken witnesses’ trust’

The Kosovo Specialist Chambers building in The Hague. Photo: EPA-EFE/Phil Njihuis.

Frank Höpfel, a professor at the University of Vienna who also worked at the UN tribunal in The Hague, said that the Kosovo Specialist Chambers should now take additional measures to protect witnesses.

“What happened to the Kosovo Specialist Chambers is a disaster and lawyers are not supposed to leak such an amount of files,” Höpfel told BIRN.

He said the court’s Victims and Witnesses Unit needs to “work out measures to prepare witnesses psychologically and make understandable what the offence team knows”.

Protected witnesses should also be well-informed about the procedures that lie ahead when cases come to trial, Höpfel added.

“It is important to make it clear to them in advance they usually will be in the same room as the accused, and that also a closed session only prevents the public from seeing them. I experienced witnesses who were surprised by that fact and would react completely devastated,” he explained.

The Kosovo Specialist Prosector’s Office said it will take action against all those involved in leaking the documents.

“The SPO [Specialist Prosector’s Office] is committed to vigorously investigating and prosecuting individuals who commit any such crimes, including the disclosure of the identity of individuals who may be called before the court or any information that could lead to their identification,” spokesperson Angela Griep told BIRN.

Griep said that witness protection is of the highest priority for the Kosovo Specialist Chambers.

“A specialised unit is dealing with witness protection and support. Violations and breaches of court-ordered protective measures and other offences against the administration of justice are severely punished under provisions of the Kosovo Criminal Code applicable before the KSC,” she added.

Due to the time that has elapsed since the crimes and the paucity of material evidence, prosecutors will rely heavily on eyewitnesses at upcoming trials. Many are believed to have already been relocated outside of Kosovo and some will have been given new identities.

Bekim Blakaj, head of the Pristina-based Humanitarian Law Centre NGO, which monitors war crimes cases, pointed out that strict security measures should be imposed to protect witnesses from threats and prevent cases from collapsing.

“In [past] war crimes trials, especially in two cases against [KLA fighters turned politicians] Ramush Haradinaj and Fatmir Limaj at the International Criminal Tribunal Penal for the Former Yugoslavia [ICTY], the weakest point was the protection of witnesses,” Blakaj told BIRN.

“This speaks about the widespread practice of influencing witnesses. As a result, the epilogue of many war crimes trials was the release of the accused,” he added.

Blakaj said that prosecutors face big challenges in getting testimonies from witnesses. Very often, witnesses have changed or withdrawn their initial testimonies during subsequent phases of war crimes investigations.

“Since the [Kosovo Specialist Chambers] was established, it has created a perception that the court is paying much attention to the protection of witnesses and it has learned from previous failures by the ICTY and local courts. However it didn’t last long. This [document leak] has shaken the trust of witnesses on this court,” he pointed out.

‘I hope the witnesses have pseudonyms’

Kosovo Albanians hold a ceremony to mark the 22nd anniversary of KLA commander Adem Jashari’s death. EPA-EFE/VALDRIN XHEMAJ.

David Tolbert, the director of the International Center for Transitional Justice, who was deputy chief prosecutor at the ICTY from 2004 to 2008, said that the leak was a brazen attempt to undermine legitimate investigations into very serious crimes and to influence witnesses.

“This attempt may be a setback for the Specialist Prosecutor’s Office in the short term, but the more pernicious element of this deed is that it may retraumatise victims/witnesses,” Tolbert told BIRN.

“This theft of confidential documents is a very serious matter, as it violates legal norms and laws and has the potential to hamper the important investigations and prosecutions that were agreed to by the Kosovo authorities and thus potentially undermining the rule of law that the people of Kosovo have so desperately called for,” he added.

Following the leak, an atmosphere of fear now prevails in Kosovo, where it has been alleged in the past that witnesses to war crimes have been threatened and intimidated into changing their initial testimonies, or even killed.

“Now it is a real possibility that the Specialist Prosecutor’s Office will fail to prove the guilt of the accused,” Blakaj warned.

Craig Lang, a former US diplomat and who is now a visting fellow on transitional justice at Franklin & Marshall College in the US and has worked on rule-of-law issues in Kosovo since 2002 said that leaking of the documents is another attempt to undermine the validity of the Specialist Chambers – and that it “threatens the lives of those trying to do the right thing”.

Countries that support the court must now help to enhance its witness protection programme, Lang urged.

“Despite what Kosovars may think of the Specialist Chambers, there is no room in a country governed by the law for any intimidation or murder of any witness,” he said.

The legacy of previous failures to secure convictions in Kosovo war crimes cases that were plagued by problems of intimidation looms over the Kosovo Specials Chambers.

The Specialist Chambers and Specialist Prosecutor’s Office have said however that judges can order a variety of additional protective measures for witnesses, such using voice or face distortion or assigning pseudonyms.

Höpfel expressed hope that these had not already been compromised: “I hope the witnesses have pseudonyms which are not included in the leaked documents,” he said.