The Conflict and the Crimes: Part I
Previous Blog, the first of Hashim Thaçi et al. Blog Series, addressed the basics: the functioning of the Kosovo Specialist Chambers (KSC), the steps of a trial, and the indictment of Hashim Thaçi.
The second Blog will be published in two parts. The first part focuses on the nature of the armed conflict in Kosovo and its classification according to international humanitarian law (IHL). Furthermore, this part introduces the concept of war crimes and crimes against humanity through the law applicable in the Hashim Thaçi et al. trial. Part II will then address the specific crimes for which Thaçi, Veseli, Selimi, and Rasniqi are indicted, thereby explaining such crimes in theory and practice.
In the meantime, on Wednesday, 10 May, the fourth witness called by the Specialist Prosecutor’s Office in the Hashim Thaçi et al. case began their testimony, which has so far been conducted in a private session.
NIAC in Kosovo
The Hashim Thaçi et al. indictment alleges that Thaçi, Veseli, Selimi, and Krasniqi (the JCE members) are individually criminally responsible, pursuant to various forms of criminal responsibility for crimes, which were committed in the context of a non-international armed conflict in Kosovo and were part of a widespread and systematic attack against persons suspected of being opposed to the KLA.
While international armed conflict (IAC) refers to an armed conflict between two or more states, non-international armed conflict (NIAC), also known as an internal armed conflict, occurs within the territory of a single state and involves hostilities between the government’s armed forces and one or more organized armed groups, or between such groups themselves. IHL has two criteria to be met for there to be a NIAC: the organization of the group and the level of intensity of armed confrontations. These elements help distinguish between armed conflicts and lesser forms of collective violence, such as civil unrest, to which IHL does not apply.
In 1989, Kosovo’s status as an autonomous province was rescinded in the context of increasing tensions and schisms throughout the former Yugoslavia. After that, Kosovo Albanians overwhelmingly supported a referendum for independence, the adoption of a constitution, and the creation of parallel state institutions, including a government led by the largest political party in Kosovo, the Democratic League of Kosovo (LDK). Throughout the 1990s, groups within the Kosovo Albanian diaspora organized to address the situation in Kosovo in various ways. During this same period, individuals and small groups within Kosovo engaged in armed attacks against the Federal Republic of Yugoslavia (FRY) authorities. The People’s Movement for Kosovo (LPK), a long-extant Albanian nationalist organization, advocated that armed force was necessary to liberate Kosovo from Serbia. In late 1993, the LPK established a special sector to coordinate the activities of armed units in Kosovo. By 1994, the LPK adopted the name UÇK/KLA for the organization under which the armed groups in Kosovo were being unified.
From at least March 1998 through September 1999 (the Indictment Period), an armed conflict existed between the KLA and forces of the FRY and the Republic of Serbia, including units of the Yugoslav Army (VJ), police, and other units of the Ministry of Internal Affairs (MUP), and other groups fighting on behalf of the FRY and Serbia (collectively, ‘FRY forces’). The FRY forces included the regular military of the FRY and the Republic of Serbia. The KLA was an organized armed group with a sufficient degree of organization to control territory.
For a more detailed explanation of the conflict, see the Amended Indictment.
Applicable law
The Kosovo Specialist Chambers (KSC) primarily applies the law explicitly created for its jurisdiction: the Kosovo Law on Specialist Chambers and Specialist Prosecutor’s Office (the Kosovo Law). This law defines the offenses and procedures the KSC follows in investigating and prosecuting crimes committed during and after the Kosovo War.
However, the KSC can apply the Rome Statute of the International Criminal Court (ICC) in certain circumstances. According to Article 3(2) of the Kosovo Law, the KSC may apply provisions of international law, including the Rome Statute, without an express provision in the Kosovo Law on a particular matter. This means that if there is a legal gap or ambiguity in the Kosovo Law, the KSC can refer to the Rome Statute or other relevant international law sources to fill that gap or interpret the law. In such cases, the KSC can draw upon the definitions, principles, and jurisprudence established by the ICC under the Rome Statute.
Therefore, while the KSC primarily operates under the Kosovo Law, it has the authority to utilize the provisions of the Rome Statute when necessary to ensure effective and fair prosecution of war crimes, crimes against humanity, and other offenses falling within its jurisdiction.
War crimes
War crimes are serious violations of the laws and customs of war and are committed during armed conflicts. They encompass acts considered beyond the accepted boundaries of warfare and are regarded as illegal under international law. These crimes can be committed by both state and non-state actors, including military personnel, government officials, and armed groups.
There is no single document in international law that codifies all war crimes. Lists of war crimes can be found in international humanitarian law, international criminal law treaties, and international customary law. Many rules of customary international law are applicable in both IACs and NIACs, expanding in this way the protection afforded in NIACs, which are regulated only by common article 3 of the four Geneva Conventions and Additional Protocol II.
What constitutes a war crime may differ depending on whether an armed conflict is international or non-international. A list of offenses that may be considered war crimes include:
a) Grave breaches of the Geneva Conventions, such as willful killing, torture, and inhumane treatment;
b) Other serious violations of the laws and customs applicable in international armed conflicts, such as attacking civilian objects, attacking protected property, and employing prohibited weapons or tactics;
c) Serious violations of the laws and customs of non-international armed conflicts, such as attacking the civilian population, taking hostages, and subjecting persons to torture or inhumane treatment.
War crimes are stipulated both in Article 8 of the Rome Statute and Article 14 of the Kosovo Law, sharing core elements related to this crime:
The contextual element: “the conduct took place in the context of and was associated with an international/non-international armed conflict”;
The mental element: intent and knowledge both with regards to the individual act and the contextual element.
In contrast to crimes against humanity, war crimes can be committed against a diversity of victims, either combatants or non-combatants, depending on the type of crime. However, it is essential to highlight that different conduct as part of war crimes can also be found in the underlying acts of crimes against humanity but would need to fulfill the contextual element of being committed as part of a widespread or systematic attack directed against any civilian population. In international armed conflicts, victims include wounded and sick members of armed forces in the field and at sea, prisoners of war, and civilians. In the case of non-international armed conflicts, protection is afforded to persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause. In both types of conflicts, protection is also afforded to medical and religious personnel, humanitarian workers, and civil defense staff.
Crimes Against Humanity
Crimes against humanity are a category of grave breaches committed as part of a widespread and systematic attack directed against any civilian population. These crimes are characterized by their gravity and the deliberate targeting of civilians, resulting in severe physical or mental harm or the deprivation of fundamental rights.
It is important to note that crimes against humanity are distinct from war crimes. While war crimes are typically associated with armed conflict, crimes against humanity can occur both in times of war and in peacetime.
Crimes against humanity have not yet been codified in a dedicated international law treaty, although there are efforts in the international community to change that. Despite this, the prohibition of crimes against humanity has been considered jus cogens, a peremptory norm of international law, from which no derogation is permitted and applies to all States.
The definition and elements of the crime can be found both in Article 7 of the Rome Statute and Article 13 of the Kosovo Law, both addressing:
The physical element: includes the omission of acts such as murder, extermination, enslavement, deportation, imprisonment, torture, forms of sexual violence, persecution, enforced disappearances, and other inhumane acts.
The contextual element: indicates that the above-mentioned underlying act is “committed as part of a widespread or systematic attack directed against any civilian population.”
The mental element: “with knowledge of the attack”, meaning that the perpetrator must know about the widespread or systematic attack directed against a civilian population and understand the gravity and scale of the crimes committed.
To be continued
In the Hashim Thaçi et al. trial, Hashim Thaçi, Kadri Veseli, Rexhep Selimi, and Jakup Krasniqi are indicted for the following crimes, which will be discussed in Part II of this Blog:
Persecution,
Imprisonment,
Torture,
Murder,
Enforced disappearance, and
Other inhumane acts
as crimes against humanity; and
Illegal or arbitrary arrest and detention,
Cruel treatment,
Torture, and
Murder,
as war crimes.
