First Indictment Announced at the Kosovo Specialist Chambers

Introduction

On June 24, 2020, the Kosovo Specialist Prosecutor's Office for the first time publicly disclosed details regarding an indictment, which charged Kosovo President Hashim Thaçi, former Chairman of the National Assembly Kadri Veseli, and other former members of the Kosovo Liberation Army (KLA) with war crimes and crimes against humanity. This is the first known indictment by the Kosovo Specialist Chambers and Specialist Prosecutor's Office (KSC & SPO).

The KSC & SPO was the subject of an ASIL Insight when it was first established; its structure, mandate, and nature as a "hybrid court" are treated in greater detail there.[1] The genesis of the KSC & SPO were allegations contained in the memoir of the former Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Carla Del Ponte, who alleged that members of the KLA had been implicated in a number of crimes. The most salacious accusation was that they had engaged in organ trafficking.[2]

In light of those allegations, the Council of Europe (CoE) commissioned a report by Dick Marty, a former Swiss politician and prosecutor. That report, titled Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo (2010) (Marty Report), found evidence of serious crimes committed during the conflict in Kosovo.[3] The CoE then passed a resolution, calling on the EU to investigate, and noting with dismay that the ICTY had dropped its own investigation into the allegations.[4]  

In its resolution, the CoE expressed its concerns that "[t]he ICTY, which had started to conduct an initial on-site examination to establish the existence of traces of possible organ trafficking, dropped the investigation."[5] Moreover, the CoE was particularly concerned that evidence of crimes obtained by the ICTY from Albania was destroyed,[6] and that "[n]o subsequent investigation has been carried out into a case nevertheless considered sufficiently serious by the former Prosecutor of the ICTY for her to see the need to bring it to public attention through her book."[7] Subsequently, the European Union launched its own investigation into the allegations contained in the report.[8]

In response to pressure from European states, on August 3, 2015, two-thirds of the Assembly of Kosovo voted to amend its Constitution to permit the establishment of the KSC & SPO. Article 162, as amended, established new judicial chambers, including a new chamber of the constitutional court, and a new prosecutor's office based outside of Kosovo. The legal foundation was augmented by the Law on the Specialist Chambers and the Specialist Prosecutor's Office.[9]

The KSC & SPO is unusual in several respects. Although formally part of the Kosovar legal system and an organ of the Kosovo government, it is based in The Hague. The KSC enjoys primacy over other courts in Kosovo, which, in turn, must notify the KSC & SPO if they investigate cases potentially falling with its jurisdiction. It has jurisdiction over crimes against humanity, war crimes, and other crimes under Kosovo law related to allegations made in the 2010 Council of Europe report or other crimes which occurred between January 1, 1998 and December 31, 2000.

A First Taste of Action

Both the KSC & the SPO have had to deal with political and legal challenges to their authority. Those suspected of crimes have adopted various approaches to undermine the legitimacy of the tribunal or to otherwise prevent investigations. The tribunal has the power, under the amendments to the Constitution of Kosovo and under Article 45 of Law No. 05/L-053, to summon individuals for interviews by the Prosecutor in The Hague. Over 100 members of the KLA have been summoned to The Hague for questioning by the prosecution,[10] including President Hashim Thaçi, Kadri Veseli, former Prime Minister Ramush Haradinaj, and former commander of the KLA, Azem Syla.[11] While the summons are not generally made public, those summoned have posted on social media when they have received a summons from the court, as a means of proclaiming their innocence and criticizing the workings of the KSC & SPO.

While most have been willing to attend, not all have complied. On December 20, 2018, the SPO summoned former KLA commander Mahir Hasani to The Hague and also issued a production order for specific documents in his possession. Instead of complying, Hasani referred the issue to the Specialist Chamber of the Constitutional Court, which had also been established by Article 162.[12] The Specialist Chamber of the Constitutional Court, which is composed of three international judges, has the power to decide any constitutional referrals relating to the actions of the KSC & SPO. Article 162 is particularly unusual amongst all the hybrid tribunals, insofar as it allows foreign judges to determine questions of national constitutional law.

Hasani argued that the order violated rights guaranteed under Articles 30(6) and 31(5) of the Constitution of Kosovo (the right against self-incrimination and the presumption of innocence, respectively) and which were additionally enshrined in Article 6 of the European Convention on Human Rights (ECHR). Article 162 specifically requires that the KSO & SPO "shall uphold the protections enshrined within Chapter II [Articles 21-56] of the Constitution, and in particular shall act in compliance with the international human rights standards guaranteed by Article 22 and subject to Article 55."[13] Article 22 provides for the direct effect of international human rights treaties, including the ECHR. 

Prior to the hearing, the court stayed the production order for documents in Hasani's possession. The prosecutor subsequently withdrew the summons. In the hearing on the merits, the court found that the summons violated Article 6(1) of the ECHR, insofar as it "consisted of a warning that if the Applicant had failed to produce the specified documents, such failure would be considered 'contempt'."[14] The threat of a contempt finding, it found, amounted to compelled self-incrimination.[15] However, given that the SPO had withdrawn the order (perhaps sensing the likely outcome) before the hearing, the Constitutional Chamber declared the referral inadmissible.[16]

A Next Stage: A First Indictment

The practice of the KSC & SPO has not been to publicly disclose details regarding potential or actual indictments. To date, it appears that the SPO has requested two separate indictments. The SPO announced on February 24, 2020, that the Prosecutor had filed a formal notice to initiate proceedings and to file an indictment.[17] The Prosecutor filed a formal notice to initiate further proceedings in April 2020.[18] Under the rules, the Pre-Trial Judge has six months to confirm the indictment.[19]

The indictment made public on June 24, 2020, was the indictment filed on April 24, 2020.[20] It covers ten counts of crimes against humanity and war crimes, including murder, enforced disappearances, persecution, and torture,[21]alleging that President Thaçi, Kadri Veseli, another former KLA commander, and unknown "others" are "criminally responsible for nearly 100 murders."[22] The victims of these alleged crimes include Kosovo Albanians, Serbs, Roma, and people of other ethnicities, as well as political opponents. 

Institutional Challenges

Not surprisingly, given the likely targets of the investigation and their role in Kosovo's struggle for independence, the operation of the tribunal has been controversial. In announcing the indictment, the Prosecutor stated that it was necessary to publicize the allegations in the face of repeated efforts by President Thaçi and Veseli "to obstruct and undermine" the court's work, including "a secret campaign to overturn the law creating the Court and otherwise obstruct the work of the Court in an attempt to ensure that they do not face justice."[23] If true, this would be part of a long line of challenges faced not just by the KSC & SPO, but also by the ICTY, the International Criminal Tribunal for Rwanda, and the International Criminal Court.[24] The ICTY, in particular, has faced continuous challenges to its legitimacy amid allegations that it was biased against members of the former Serb militias.[25]

In 2017, a group of KLA veterans initiated a petition to amend the law establishing the tribunal to permit the prosecution of Serbs for crimes committed in the territory of Kosovo.[26] Members of the Assembly of Kosovo also attempted to backtrack on the commitment to allow prosecutions in The Hague, but backed down in the face of resistance from the EU and the so-called Quint Member States—the United States, United Kingdom, Germany, France, and Italy. On January 4, 2018, the U.S. Embassy released a statement that international states were "deeply concerned by ongoing efforts to undermine the work of the Specialist Chambers."[27]

In November 2019, President Thaçi wrote to U.S. Secretary of State Mike Pompeo asking the U.S. to change the tribunal's mandate and location. In a leaked response, Pompeo signaled the United States' support for the tribunal. Using similar language to the 2018 statement, in the leaked statement, Pompeo reportedly wrote that: "The abolishment or undermining the work, structure or locations of [the] Kosovo Specialist Chambers and Specialist Prosecutor's Office in any way would seriously infringe [on] Kosovo's credibility in the world. Any such claim would leave a permanent spot on Kosovo, its commitment to the rule of law would be under question, justice for victims would be denied and Kosovo's future would be blurred."[28]

In April 2020 when the indictment was announced, the Kosovo delegation withdrew from the Serb-Kosovo peace talks.[29] In July, former members of the KLA held a protest in Pristina condemning the indictment, calling it the work of Serbia.[30]

The next steps will be critical for the functioning and legitimacy of the court. If the indictment is confirmed, Thaçi has promised to resign to face trial. The key question will be whether he follows through or if the government of Kosovo ratchets up its resistance.[31]

About the Author:

Kevin W. Gray, JD, PhD is a recent graduate of Osgoode Hall Law School and will be articling at the Government of Ontario. The opinions expressed are his own.