The Conflict and the Crimes: Part II

As explained in Part I of this Blog, the Hashim Thaçi et al. case before the KSC includes six counts of crimes against humanity and four counts of war crimes. Part II will explain those crimes and their elements, in theory (of international criminal law) and in practice (of Hashim Thaçi et al. trial).

Theory

Actus reus and mens rea are two fundamental concepts in criminal law. They refer to different aspects of criminal liability. Actus reus refers to the physical act or conduct that constitutes a crime, while mens rea refers to the mental state or intention of the perpetrator when committing the criminal act. Both elements are essential in determining criminal liability in war crimes and crimes against humanity.

For a war crime to be committed, there must be:

1. Actus reus:

a. An underlying act considered criminal under international law (physical element), which

b. took place in the context of and was associated with an international/non-international armed conflict as part of a broader criminal plan or policy (contextual element), and

2. Mens rea: the conscious desire or purpose to commit a particular act that constitutes a war crime (mental element). This includes intent and knowledge and, in some cases, recklessness. The latter is somewhat lower than intent and means a person consciously disregards a substantial and unjustifiable risk that an act will constitute a war crime.

For a crime against humanity to be committed, there must be:

1.  Actus reus:

a.  an underlying act considered criminal under international law (physical element),

b. committed as part of a widespread and systematic attack directed against any civilian population (contextual element),

2. Mens rea: with knowledge of the attack (mental element), meaning that the perpetrator must know about the widespread or systematic attack directed against a civilian population, thereby being aware of the crimes' context and nature.

While crimes against humanity and war crimes can share some underlying acts, such as murder, torture, or prosecution, the key difference lies in the contextual element. In crimes against humanity, the focus is on the widespread or systematic nature of the acts as part of an attack against a civilian population, whether in times of peace or armed conflict. In contrast, war crimes focus on the act's nexus to the armed conflict. Therefore, it enables differentiating these crimes from isolated criminal acts when they have no nexus to armed conflict (in case of war crimes) or are not done as part of widespread or systematic nature (in case of crimes against humanity). By considering the broader context, it becomes possible to identify the systematic or organizational nature of the crimes, therefore attributing responsibility to higher-level individuals or entities.

On the other hand, the mental element ensures that liability is not solely based on the commission of a prohibited act but also considers the perpetrator's state of mind.

This blog will focus on the actus reus of these crimes and endeavor into mens rea as the trial develops.

Practice

Persecution

Intentional and severe deprivation of fundamental rights based on political, ethnic, racial, or religious grounds as part of a widespread or systematic attack against a civilian population. It can manifest in various forms, such as discriminatory laws, policies, or practices that result in the denial of fundamental rights, restrictions on freedoms, or acts of violence and intimidation.

In the Hashim Thaçi et al. trial, it must be shown that the alleged persecutory acts were committed as part of a widespread or systematic attack directed against a civilian population for these to be qualified as crimes against humanity. This means the illegal or arbitrary arrests and detentions, inhumane conditions at detention sites, enforced disappearances, physical and psychological abuse, torture, killings, and other acts were not isolated incidents but rather part of a broader pattern of similar acts carried out with a certain level of organization or coordination.

Torture

One of the most heinous human rights violations strictly prohibited under international law. It aims to extract information, punish, intimidate, or coerce individuals, often resulting in long-lasting physical and psychological damage or even death. Depending on the previously discussed context and nexus to the armed conflict, it can be actus reus of crimes against humanity and war crimes.

The accused in the Hashim Thaçi et al. trial allegedly inflicted severe pain or suffering to obtain information or confessions. They punished, intimidated, coerced or discriminated, including on political and ethnic grounds, against the victim or third person. They questioned the victims, coerced and forced them to sign confessions and provide information, and accused them of being opponents, punishing, assaulting, and treating them inhumanely.

Murder

A significant actus reus element of crimes against humanity and war crimes. It is considered a grave violation of human dignity, the right to life, and the principles of justice.

Through their acts and omissions, the accused allegedly caused the death of persons in Kosovo and northern Albania, including arrests or abductions at or in connection with detention sites. This includes killings committed during, and deaths resulting from, inhumane treatment at detention sites.

Imprisonment

Imprisonment refers to individuals' intentional and unlawful confinement, typically in detention facilities or prisons, without proper legal authority or justification. To be considered crimes against humanity, these acts cannot be isolated incidents but rather part of a broader pattern or policy targeting a specific group or community.

Hashim Thaçi and others are accused of depriving persons of their liberty without due process of law at short-term and long-term detention sites in Kosovo and northern Albania. Detainees were restrained, held under guard, in locked quarters, and coercive circumstances, and subjected to inhumane acts, cruel treatment, and torture. These persons were arrested and detained without legal basis, were not informed of the reason for their arrest or detention or had no opportunity to challenge the basis for their detention.

Other inhumane acts

Intentionally broad and flexible actus reus of crimes against humanity. It encompasses various actions that cause severe physical or mental harm or seriously attack human dignity, even if they are not explicitly defined as separate crimes. The indictment of Hashim Thaçi alleges that the accused established and maintained inhumane conditions at detention sites, routinely assaulted persons, thereby inflicting severe bodily and psychological harm, and refused to provide information to family members of those arrested, abducted, or detained.

What of responsibility?

Modes of criminal liability for war crimes and crimes against humanity include individual criminal responsibility, command responsibility, and joint criminal enterprise (JCE). Paragraph 33 of the indictment states that the accused shared the intent for commissioning each crime charged with other members of the joint criminal enterprise. As a mode of criminal liability, JCE allows for one member's actions and mental state to be attributed to others involved in the enterprise if it can be shown that they were aware of the criminal plan and its objectives and knowingly participated in it. However, it is essential to note that the burden of proof rests with the prosecution. Sufficient evidence will need to be presented to convince the judges beyond a reasonable doubt of Hashim Thaçi's actus reus and mens rea in relation to the charges.