The defense strategy at the Kosovo Specialist Chambers in The Hague has once again turned into more of a political than a legal debate in Kosovo. The question of who fought and who did not has dominated public discussions after the testimonies of James Rubin, Paul Williams, and John Duncan. However, a similar defense tactic had already been used years earlier at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. Nacionale conducted an interview with Michael O’Reilly, former lawyer of Ramush Haradinaj at the ICTY, who shared key details.
For years, Michael O’Reilly was part of the defense team of Ramush Haradinaj at the Hague Tribunal. At that time, together with renowned international lawyers Benn Emmerson and Rodney Dixon, he faced two main allegations from the ICTY Prosecution. First, that Ramush Haradinaj had full command of the Dukagjin Zone, and second, that only the Kosovo Liberation Army (KLA) was responsible for the killings connected to the “Radoniq Lake” case.
“The Defense strategy was to prove that neither of the Prosecution’s theories was accurate,” O’Reilly told Nacionale.
The tactic used by O’Reilly and his international colleagues was to demonstrate that the Kosovo Liberation Army did not have an effective chain of command. A similar line of defense is being used today by the legal teams of Hashim Thaçi, Kadri Veseli, Rexhep Selimi, and Jakup Krasniqi, with similarly prominent lawyers.
“As for the first theory, without ever calling defense witnesses, the defense demonstrated through cross-examination of prosecution witnesses that the KLA was a voluntary organization without lines of control or effective command, and that Ramush Haradinaj was, in his own words, ‘the commander of all those who wished to obey.’ Moreover, prosecution witnesses confirmed that Haradinaj’s personal conduct was always highly disciplined and protective of the local population. In short, he did not commit crimes, nor did he order, tolerate, or conceal them,” said O’Reilly.
Regarding the second core accusation, O’Reilly emphasized that there was never evidence proving that the KLA had full control of all zones or that it could be held responsible for all alleged crimes.
“As for the second theory – the ‘Total Control Zone’ – military evidence from KFOR and other sources convincingly showed that such a thing never existed. Furthermore, expert evidence established that many of the individuals whose bodies were found in the canal had been in Serbian custody, that many of the bodies were buried elsewhere and later exhumed before being moved to the Radoniq Lake area,” he explained.
Although the case of Thaçi at the Specialist Chambers covers a different period than Haradinaj’s ICTY trial, the main arguments of both prosecutions are tied to the concept of “Joint Criminal Enterprise” (JCE). O’Reilly notes that the Hague Tribunal had already established that the KLA’s General Staff had no authority over Haradinaj as zone commander.
“Nevertheless, the general command and nature of the KLA were scrutinized, and it became clear that the General Staff had no influence or authority over Haradinaj. In fact, it was clear that, in general, he ignored the General Staff. Again, in his own words, the General Staff (which he called the Political Division) might as well have been ‘on the moon,’” O’Reilly said.
But did Haradinaj have full control over the entire Dukagjin Zone, as the Prosecution claimed then, and as the Specialist Chambers now argues against Thaçi, Selimi, Krasniqi, and Veseli? O’Reilly stresses that Haradinaj’s influence stemmed from respect, not from a formal position of command.
“Evidence showed that the control exercised by Haradinaj stemmed from respect for his abilities as a fighter and leader, and that his assessment of his role as a fighter rather than a commander was accurate. The events in Gllogjan on March 24, 1998, were important in generating respect for Haradinaj and his people. Fighters came and went from the KLA: sometimes they had to leave for weeks to care for their families or farms. The concept of ‘desertion’ had no meaning. Evidence showed that the KLA at that time bore little resemblance to a conventional military organization,” said O’Reilly.
Similar to O’Reilly’s statements, the defense of the former KLA leaders at the Specialist Chambers today also aims to prove that there was no clear chain of command—a conclusion already confirmed by the ICTY in The Hague regarding the Kosovo Liberation Army.
This line of argument was also supported by the testimonies of James Rubin, Paul Williams, and John Duncan.
