Kosovo Guerrilla Chiefs’ Landmark Trial: What are the Charges?

More than two years after Hashim Thaci was arrested and sent to The Hague, the landmark trial of the former Kosovo president and his three co-defendants on war crimes and crimes against humanity charges finally starts on April 3.

It is the most high-profile case related to the Kosovo war since the trial of Yugoslav President Slobodan Milosevic, and is expected for last for several years. Developments are being followed closely in Kosovo, where Thaçi was head of state until he resigned just before he was detained in November 2020.

All four indictees were senior figures in the Kosovo Liberation Army, KLA guerrilla organisation during the war and were involved in leading the fight against Serbian forces. All four then became senior politicians in the post-war period.

On trial alongside Thaçi will be Kadri Veseli, a former Kosovo parliamentary speaker and leader of Kosovo Democratic Party, PDK, Jakup Krasniqi, the chairman of the national council of the Social Democratic Initiative, NISMA party, and Rexhep Selimi, who was the head of the Vetevendosje party’s parliamentary group of MPs at the time of his arrest.

The four former comrades-in-arms turned politicians are charged with the crimes against humanity of persecution, imprisonment, other inhumane acts, torture, murder and enforced disappearances, and the war crimes of unlawful or arbitrary arrest and detention, cruel treatment, torture and murder.

They are accused of being responsible for the crimes individually as members of a ‘joint criminal enterprise’, of bearing superior responsibility for the offences as leaders of the KLA, and of aiding and abetting the crimes.

The purpose of the joint criminal enterprise is described in the indictment as including “the crimes of persecution, imprisonment, illegal or arbitrary arrest and detention, other inhumane acts, cruel treatment, torture, murder, and enforced disappearance of persons”.

These crimes, allegedly committed between at least March 1998 and September 1999, mainly against prisoners held at a series of detention facilities set up by the KLA in Kosovo and Albania, include criminal responsibility for nearly 100 murders.

The latest version of the indictment, filed by the prosecution in February, disclosed the names of some of the ethnic Albanian, Serb and Roma victims in the case, as well as details of alleged threats and pressure that the defendants exerted against the KLA’s political rivals. It also revealed that the bodies of 12 Serb victims were found in a mass grave in 2005.

The indictment claims that the defendants sought to stamp their control over Kosovo “by means including unlawfully intimidating, mistreating, committing violence against, and removing those deemed to be opponents”.

It also alleges that as senior figures in the KLA, the four men had “superior responsibility”, which makes them complicit to war crimes and crimes against humanity due to allegedly being aware of violations and not taking actions to prevent criminal acts, not punishing alleged perpetrators, or directly participating or giving orders themselves.

All four men have pleaded not guilty.

Ethnic and political opponents

According to the indictment, the members of the joint criminal enterprise “conducted a campaign of persecution against opponents in multiple municipalities in Kosovo and the districts of Kukes and Has in northern Albania” between at least March 1998 and September 1999. Crimes were committed at a total of 39 locations, it is alleged.

‘Opponents’ are defined by the prosecution as people who were perceived by the KLA as “collaborating or associating” with Yugoslav forces, officials or state institutions. This includes Serbian police.

But the prosecution said that the KLA also considered as opponents people who did not support the aims and methods of the guerrillas or the Provisional Government of Kosovo, which was headed by Thaci from March 1999, at the same time as he was also the KLA’s commander-in-chief.

These ‘opponents’ included people associated with the Dehttps://datawrapper.dwcdn.net/XTl54/2/mocratic League of Kosovo, LDK, a rival political party, and “persons of Serb, Roma, and other ethnicities”, according to the prosecution.

The prosecution told a pretrial status conference in January that Serb civilian, as well as Serbian troops and police officers, were perceived as opponents by the KLA and “attacked on the basis of their ethnicity”.

But Thaci’s lawyer Gregory Kehoe told the court that some of these Serbs could have been detained for participating in the fighting or because they were perceived as a threat for collaborating with Serbian armed forces.

“What is not clear is how will the SPO prove [whether someone was a civilian or an active participant in the conflict] based on the charges presented in the indictment,” Kehoe said.

The defence also argued that in previous war crimes trials of KLA officers such as Fatmir Limaj and Ramush Haradinaj at the International Criminal Tribunal for the Former Yugoslavia, ICTY, it was concluded that KLA did not carry out a “widespread or systematic attack” against civilian opponents, as the Thaci indictment alleges.

“The civilian population has not been attacked, there have not been systematic or widespread attacks,” Ben Emmerson, the defence lawyer for Kadri Veseli, told the court in January, adding that “two judges’ panels [at the ICTY] reached the conclusion that KLA did not have a policy of attacking the civilian population”.

Both Limaj and Haradinaj were found not guilty by the ICTY.

Defence claims unfair treatment

The four men’s defence lawyers have repeatedly claimed that their legal rights have been violated during the pre-trial phase.

The defence has insisted that it has been put in an unfavourable position compared to the prosecution because of the delayed disclosure of evidence, the reluctance by the prosecution to hand over potentially exculpatory evidence, and the lack of translations in the native language of the accused.

A July 2022 monitoring report by the Kosovo Law Institute NGO concluded that numerous problematic issues affected the pre-trial phase of the case, including “redactions in indictments, delays in obtaining evidence, the disclosure of multiple [pieces of] evidence at once, allegations of non-disclosure of exculpatory evidence and delays in translations”.

The Kosovo Law Institute said in its report that one of the basic legal principles to ensure a fair trial for a defendant is “the right of access to the case files at any stage of the criminal proceedings” in order to ensure a fair balance between the opportunities given to the prosecution and defence.

It also said that another basic right for defendants is for them to have “all the case files that will be used by the prosecution in a language that they understand and speak”.

At a status conference in November, the pre-trial judge ordered the prosecution either hand over all the evidential material or give reasons who it was holding some of it back.

The evidence was transferred to the judges around a month later. At a public hearing in January, the prosecution finally confirmed that it had disclosed all potentially exculpatory items in its possession.

In February, the panel of judges found that the prosecution “failed to fully comply with its disclosure obligations” which “resulted in a limited prejudice to the defence”.

The judges said that as more than two years had passed since the accused were arrested and the trial was due to start soon, because of the amount of evidence that the defence still had to review, there was no longer any justification for “the delayed disclosure of exculpatory evidence to the defence”.

The Kosovo Law Institute argued meanwhile that the fact that the accused did not have all the case records in their language language, Albanian, was “a blatant violation” of their rights.

It said that this “limits them from preparing to oppose the claims of the prosecuting authority” and from effectively preparing the defence they will use in court.

Long-running trial expected

The pre-trial process in the case against Thaci and his co-defendants lasted for more than two years.

“The preliminary procedure before the [Specialist Chambers] in the case against Thaci and the others, compared to other court procedures related to war crimes in Kosovo, including trials at the ICTY and trials at local courts, was considerably longer,” said Amer Alija, legal analyst at the Humanitarian Law Centre Kosovo.

It is estimated that the trial could go on for much longer. At a status conference on March 20, presiding judge Charles Smith III said that the presentation of the prosecution’s evidence could take as long as six-and-a-half years, although the prosecution has said it will complete it case by April 2025. Smith urged the prosecution and defence to find ways to reduce the length of the trial.

The Specialist Chambers also face a lack of trust among Kosovo’s Albanian majority, which is problematic because they are part of Kosovo’s judicial system. The so-called special court is located in the Netherlands and staffed by internationals, and was established under pressure from the country’s Western allies, who believe Kosovo’s own justice system is not robust enough to try KLA cases and protect witnesses from intimidation.

Many Kosovo Albanians believe that the court is ethnically biased and denigrates the KLA’s just war against Serbian repression.

A 2022 report by Sara L. Ochs and Kirbi Walters, published in the Duke Journal of Comparative and International Law, argued that indicting Thaci while he was in office as president has even further alienated Kosovo’s political class.

“By indicting sitting leaders, the prosecutor and the court have rendered the chances of receiving any type of political cooperation in their investigations unlikely,” the report said.

With several years of hearings ahead, the prolonged nature of the proceedings is unlikely to make the trial of people seen by many Kosovo Albanians as wartime heroes any more popular.