The Kosovo Specialist Chambers have, at first instance, sentenced former Kosovo President Hashim Thaci and three other former leaders of the Kosovo Liberation Army – Kadri Veseli, Rexhep Selimi and Jakup Krasniqi – to lengthy prison terms for war crimes.
Thaci and Krasniqi were each sentenced to 25 years in prison, Veseli to 18 years, and Selimi to 13 years. The court found them responsible for the arbitrary arrest and detention of at least 385 people, cruel treatment of 49, torture of 303 and the killing of 96 people. At the same time, they were acquitted on six counts of crimes against humanity, as the prosecution, in the court’s assessment, failed to prove that the crimes formed part of a widespread or systematic attack against the civilian population.
The verdict is not final and an appeal process will follow. The defence teams have already announced that they will challenge it. Reactions from virtually the entire political spectrum in Kosovo have, as expected, been highly critical. Protests were held both in Pristina and The Hague, where demonstrators also clashed with police. At the same time, schools in Gracanica and other areas of central Kosovo operating under Serbia’s education system switched to online classes due to a security assessment and planned gatherings.
The answer to the question of whether Thaci is a war criminal in the final legal sense will come once the proceedings have been concluded with a final judgment. This is not mere hair-splitting.
Let us remember Montenegro. Andrija Mandic and Milan Knezevic were convicted at first instance for an attempted coup. That verdict was later overturned, they were acquitted in the retrial, and the Court of Appeal confirmed the acquittal in February this year. Today, if you write that one of those acquitted acted in collusion with Russian intelligence services, you risk being sued and penalised.
But let us return to Kosovo.
It is important first to clarify the difference between these proceedings and the trial of Ratko Mladic and others before the International Criminal Tribunal for the former Yugoslavia (ICTY), commonly known as the Hague Tribunal. There is also the International Criminal Court (ICC) in The Hague, which has nothing to do with the ICTY and prosecutes individuals for the most serious international crimes. Among other things, that court has issued arrest warrants for Vladimir Putin and Benjamin Netanyahu.
Thaci was tried by neither court.
Ramush Haradinaj was tried before the ICTY. That story, incidentally, is somewhat different from how it is often recounted. Haradinaj was acquitted in 2008. The Appeals Chamber subsequently partially overturned that decision and ordered a retrial on part of the indictment, among other reasons because of serious problems involving witness intimidation. Following the retrial, Haradinaj was acquitted again in 2012. He later returned to the position of Prime Minister of Kosovo.
The court now trying Thaci is not an international tribunal in the same sense as the ICTY or ICC. The Specialist Chambers were established through a constitutional amendment and legislation adopted by Kosovo and are formally part of its judicial system. At the same time, they are based in The Hague, while the judges, prosecutors and staff are international. This structure was intended to make it possible to prosecute highly politically sensitive cases and reduce problems of political pressure and witness intimidation.
Their mandate is linked to the 2011 report of the Parliamentary Assembly of the Council of Europe, the so-called Marty Report, prepared by Swiss senator and former prosecutor Dick Marty. The report became particularly known for allegations of abductions, secret detention sites and the removal and trafficking of human organs. You may remember the story of the Yellow House.
Thaci and the others in these proceedings were not charged with organ trafficking, and this verdict therefore could neither confirm nor reject that part of Marty’s allegations. The EU Special Investigative Task Force stated as early as 2014 that there were compelling indications that organ removal had taken place in a very limited number of cases, but that it did not have sufficient evidence at the time to bring charges for that offence.
The Specialist Chambers were established under strong pressure from the United States and the European Union following the Marty Report. Politically, their existence was also intended to address long-standing criticism that crimes committed by KLA members were not being prosecuted with the same determination as crimes committed by other sides in the wars of the former Yugoslavia. Although this was not explicitly formulated, the court and prosecution effectively have a mandate to prosecute only Albanians, that is, members of the KLA.
It seems to me that in Serbia and among Serbs, this signal has generally not been interpreted as a form of justice being served. Claims can already be heard that “the Hague Tribunal convicted Thaci”, even though the ICTY has absolutely nothing to do with this verdict. More importantly, the verdict is being used as an opportunity to try to redefine the entire character of the war in Kosovo and, more broadly, the Yugoslav wars.
The Thaci verdict does not alter the facts about crimes committed by Serbian and then-Yugoslav forces against Kosovo Albanians that have already been established by the courts. In final judgments, the ICTY established that in 1999 Serbian and Yugoslav forces carried out a campaign of violence and forced displacement of the Albanian population from Kosovo, involving killings, persecution and other crimes.
Likewise, this verdict does not imply the collective guilt of Albanians, just as the verdict against Ratko Mladic does not imply the collective guilt of Serbs. The presiding judge in this case himself stressed that the court was not judging the legitimacy of the KLA or the goal of an independent Kosovo, but rather specific crimes and the individual criminal responsibility of the accused.
Serbs and Albanians are not war criminals. Individual Serbs, Albanians, Montenegrins or anyone else can be war criminals. A victim is neither less nor more worthy because they are Serbian, Albanian or a member of any other nation. The only serious approach to remembering the past is one in which the same rules apply to everyone.
That is why Mladic and Thaçi should not be compared. Their cases are legally different. Mladic was finally convicted of genocide, crimes against humanity and war crimes. Thaci currently has a first-instance conviction for war crimes, together with an acquittal on the charges of crimes against humanity, and an appeal process lies ahead.
Nor is the way a state responds to such verdicts unimportant. Ratko Mladic was buried in Belgrade this month with state and military honours, in the presence of government officials. This says a great deal about how the legacy of war crimes is treated in Serbia today.
The International Court of Justice found that Serbia had failed to fulfil its obligation to prevent genocide and punish its perpetrators. At the same time, final judgments against senior officials of Serbia’s State Security Service, Jovica Stanisic and Franko Simatovic, established their participation in a joint criminal enterprise linked to crimes committed in Bosnia and Herzegovina and Croatia.
These are facts. Just as it is a fact that Montenegro must confront its own role in the war campaign against Dubrovnik.
(Columnists’ opinions and views do not necessarily reflect those of the CdM editorial team)
