The basics of the Hashim Thaçi et al. Trial
The war crimes trial of the former Prime Minister and President of Kosovo, Hashim Thaçi, began on 3 April 2023 at the Kosovo Specialist Chambers in The Hague, Netherlands. The former politician, who served as the President of Kosovo from 2016 until his resignation in November 2020, was indicted in June 2020 for war crimes, crimes against humanity, and other offenses allegedly committed during the Kosovo armed conflict in the late 1990s. The conflict was fought between Kosovo Liberation Army (KLA), comprised of ethnic Albanian separatists on the one side, and the Yugoslav army and Serbian police on the other. Thaçi was a senior KLA commander who fought against Serbian forces in the war.
The Kosovo Specialist Chambers
Source: KSC website
The motion to establish Kosovo Specialist Chambers stems from a 2011 Council of Europe report by Swiss Senator Dick Marty, covering serious crimes during and after the conflict allegedly committed by some KLA members, including Thaçi. The European Union created a Special Investigative Task Force to examine these allegations, which concluded in 2014 that there were grounds for indictment. The EU worked to form specialist chambers. The United States government has supported the effort, and the chief prosecutors, to date, have been US nationals. The so-called “Special Court” is part of Kosovo’s judicial system after the Kosovo Assembly passed a new law and changed its Constitution. Still, it is based in the Netherlands due to threats and violence against witnesses and employs international staff, exclusively non-Kosovars.
It was set up in 2015 by the Kosovo parliament, allegedly due to pressure from the country’s allies, who believe Kosovo’s justice system is not robust enough to try the KLA cases. Such claims are based on the experience of previous trials at the ICTY, including witness tampering.
The Court is unpopular in Kosovo and seen as unfairly targeting Kosovo Albanian freedom fighters rather than the Serbian perpetrators of most war crimes committed in 1998-1999.
How does the KSC function?
Source: the KSC website
The Kosovo Specialist Chambers functions as a hybrid tribunal, more precisely, an “internationalized” domestic jurisdiction. It comprises domestic features, the Court’s inclusion in the Kosovo judicial system, and international features, the Court’s international legal personality, and powers in its relationship with other States. It is divided into three main organs:
The Office of the Special Prosecutor is responsible for conducting investigations and prosecuting cases before the KSC. The KSC appoints the Prosecutor and ensures that the charges against the defendants are based on sufficient evidence.
The Specialist Chambers is the judicial body of the KSC. It consists of It is responsible for conducting trials and rendering judgments. It consists of a Trial Panel of judges, and a separate body of judges, the Court Appeals Panel.
The Registry is responsible for managing the administrative and support functions of the KSC, such as the KSC budget, facilities, and personnel.
The KSC and the SPO are two entirely distinct and independent institutions. The SPO is responsible for conducting investigations and prosecutions of persons who are allegedly responsible for the crimes and offences falling within the jurisdiction of the Specialist Chambers. The SPO are comprised of two organs, the Chambers and the Registry. The Registry manages all of the essential judicial support functions such as detention, court management, legal aid, victims’ participation and interpretation and translations, while the Chambers encompasses the President, the Vice-President and the Judges on the Roster of International Judges. In the selection process, the Law requires that the Judges be persons of high moral character, impartiality and integrity. In addition, they must have the qualifications required in their respective States for appointment to the highest judicial offices. The Specialist Chambers mirror each level of the court system in Kosovo and therefore include a Basic Court Chamber, a Court of Appeals Chamber, a Supreme Court Chamber and a Constitutional Court Chamber.
The Kosovo Specialist Chambers can impose sentences of up to life imprisonment for those found guilty of war crimes, crimes against humanity, and other offenses committed during the Kosovo armed conflict. It also has the power to order reparations for the victims of the crimes under its jurisdiction, including restitution, compensation, and rehabilitation.
What are the steps of a trial before the KSC?
A trial under the Kosovo Specialist Chambers follows a process similar to other international criminal tribunals regarding the criminal procedures followed and upholding international human rights law standards.
The general steps involved in such a trial are the following:
Investigation and indictment: The Office of the Specialist Prosecutor investigates alleged war crimes committed during the Kosovo armed conflict. If there is sufficient evidence, the prosecutor will issue an indictment, which sets out the charges against the accused.
Pre-trial proceedings: Before the trial begins, there may be a series of pre-trial proceedings, including preliminary hearings, motions, and disclosure of evidence. The defense may also file challenges to the indictment or other aspects of the case.
Trial: The trial itself typically takes place in front of a panel of three judges, who will hear testimony from witnesses, examine the evidence, and make rulings on procedural matters. The prosecutor presents its case first, followed by the defense, which may call its witnesses and present evidence. The judges may ask questions of the witnesses and other parties.
Closing arguments: Once all evidence has been presented, the prosecutor and defense present their closing arguments, summarizing their case and highlighting key points.
Judgment: The judges then deliberate and render a judgment, which may include findings of guilt or innocence and any applicable sentences. The judgment is typically read aloud in open Court.
Appeal: The accused or the prosecutor may appeal the judgments to the Kosovo Specialist Chambers Appeals Panel, which may uphold, reverse, or modify the judgment.
The indictment of Hashim Thaçi
The indictment alleges that Thaçi and other members of the KLA - Kadri Veseli, former head of the KLA’s intelligence service, Rexhep Selimi, head of the KLA’s operational directorate, and Jakup Krasniqi, member of the KLA’s political directorate formed part of a joint criminal enterprise, a mode of criminal responsibility recognized by the KSC. According to the indictment, they “shared the common purpose to gain and exercise control over all of Kosovo by means including unlawfully intimidating, mistreating, committing violence against, and removing those deemed to be opponents”.
The defendants were arrested and transferred to The Hague on November 4 and 5, 2020, and were scheduled for trial in September 2021. Nonetheless, the trial was postponed due to the lead prosecutor’s resignation and issues related to COVID-19. As mentioned above and as enshrined in IHRL, the defendants are entitled to a range of fair trial guarantees, such as the presumption of innocence, the right to present evidence, the right to counsel, the right to an appeal, and the right to confront witnesses.
Trial unfolding
The trial of Hashim Thaçi, Kadri Veseli, Rexhep Selimi, and Jakup Krasniqi opened before the Kosovo Specialist Chambers (KSC) on 3 April 2023. It was dedicated to procedural issues and lasted for only a few hours, with the defendants pleading not guilty to all charges.
As a hybrid international and national court, the Kosovo Specialist Chambers was established to prosecute war crimes, crimes against humanity, and other crimes committed in the context of the Kosovo conflict. While there are different modes of criminal responsibility before the KSC for crimes committed in the context of non-international armed conflict, Hashim Thaçi and three other defendants are all accused of participating in a joint criminal enterprise to commit crimes against non-Serb civilians during the conflict. In addition to the charges related to JCE, each defendant also faces specific charges related to their alleged individual criminal responsibility for specific crimes committed during the conflict.
The trial is expected to be complex and lengthy and could take several years to complete. While 25 years passing by does not make that process any less complex, there is no doubt about the future significance of these proceedings from the standpoint of the development of international criminal law.
