lunedì, Giugno 17, 2024

Time for action at the Kosovo Specialist Chambers

Five years after the establishment of the Kosovo Specialist Chambers and Specialist Prosecutor’s Office (“KSC” and “SPO”), in between June and October 2020 the SPO brought charges of war crimes and crimes against humanity against former members of the Kosovo Liberation Army (“KLA”), including the President of Kosovo Hashim Thaçi – who immediately resigned from office – and former Chairmans of the National Assembly Kadri Veseli and Jakup Krasniqi. All of the Accused have already been arrested and transferred to the detention facilities of the KSC in the Netherlands.[1]They also made their initial appearance before the Pre-Trial Judge, the scope of which is to ensure that the basic procedural rights of the Accused are respected.[2]

Before delving into the specific cases, it is worth recalling why the KSC and SPO were established, and what are the limits of its mandate and jurisdiction, given the unusual set-up and hybrid nature of this court.

  1. The establishment of the KSC and SPO

The inception of the KSC and SPO dates back to 2008, when Carla Del Ponte, former Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY), published a set of memoirs relating to her experiences within the tribunal.[3] The memoirs contained allegations that KLA leading commanders had been implicated in a number of crimes and, among others, trafficking in human organs taken from Serb prisoners.[4] Importantly, those (serious) allegations had not been investigated by the ICTY before.  At that point, the Committee on Legal Affairs and Human Rights of the Council of Europe (“CoE”) took action by commissioning to Dick Marty, former Swiss politician and prosecutor, a report “which demanded a thorough investigation into the acts mentioned by Madam Del Ponte and their consequences, in order to ascertain their veracity, deliver justice to the victims and apprehend the culprits of the crimes”.[5]

The report, issued with the title “Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo” andbetter known as “Marty Report”, confirmed the facts enshrined in the memoirs and found evidence of serious crimes committed during the conflict in Kosovo.[6] Once acknowledged the findings of the Marty Report, the Parliamentary Assembly of the CoE passed a resolution calling on the European Union to conduct further investigations.[7] In the resolution, the CoE did not spare criticism against the ICTY, expressing concerns over the integrity of evidence collected by the ad hoc tribunal during its on-site examination in Albania, before dropping the investigation.[8]

In response to the call of the CoE, the European Union tasked a Special Investigative Task Force (“SIFT”) to conduct an independent criminal investigation into the allegations of the Marty Report, as well as other crimes connected to those allegations. In the summer of 2014, the SITF announced that the evidence investigated was of sufficient weight to file an indictment and that there had to be an adequate institution for proper judicial proceedings.

Following the Exchange of Letters between the President of Kosovo and the High Representative of the European Union for Foreign Affairs and Security Policy in 2014,[9] the Kosovo Assembly amended Article 162 of the Kosovo Constitution in order to allow the establishment of such “adequate institution”, the KSC. Contextually, the “Law on Specialist Chambers and Specialist Prosecutor’s Office” (the “Law”) was adopted by the Kosovo Assembly as well.[10]

According to Article 162 of the Kosovo Constitution, the KSC is attached to each level of the court system in Kosovo – Basic Court, Court of Appeals, Supreme Court and Constitutional Court. This means that the KSC is formally part of the Kosovar legal system and, at the same time, it is an organ of the Kosovo Government. However, it is based in The Hague and enjoys primacy over other courts in Kosovo, which, in turn, must notify the KSC if they investigate cases potentially falling within its jurisdiction.[11] It has material jurisdiction over crimes against humanity, war crimes, and other crimes related to the allegations made in the Marty Report, as well as on a series of crimes set forth under the Kosovo Criminal Code, including crimes against the administration of justice.[12] The jurisdiction is however limited to the crimes committed in the territory of Kosovo, by or against persons with Kosovo/FRY citizenship, between January 1st, 1998 and December 31st, 2000.[13]

Unlike other courts operating within the international criminal law system, the KSC has to rule and operate also in accordance with the Constitution of Kosovo and, notably, with “the international human rights law which sets criminal justice standards including the European Convention on Human Rights and Fundamental Freedoms [(“ECHR”)] and the International Covenant on Civil and Political Rights”, which are given superiority over domestic laws.[14]

It is important to note that the SPO is an independent office responsible for conducting the investigation and prosecution of persons within the KSC’s jurisdiction, a feature that is new if compared to other international criminal tribunals.[15]The KSC also counts with a Registry, a Defence Office, a Victims Participation Office, a Witness Protection and Support Office, a Detention Management Unit, and an Ombudsperson’s Office.[16]

Lastly, pursuant to Article 162(13) of the Kosovo Constitution, the KSC was initially established for an anticipated period of five years, which has now expired. As a consequence, the Kosovo Assembly made a referral to the Constitutional Court Chamber to decide on the proposed amendments of Article 162(13) and (14). [17] The Kosovo Assembly was in fact of the view that Article 162 ought to be amended for the KSC to continue to operate. This position could have implied that the KSC mandate had in fact expired in August 2020 and all actions taken by the KSC and SPO since that time were invalid. On the other hand, the SPO position was that “if investigations and proceedings did not conclude within the initial five-year period, then the mandate would continue until notification in accordance with the Exchange of Letters”.[18] On 26 November 2020, the Constitutional Court Chamber delivered its judgement on the referral of the amendments proposed to Article 162. The referral was thus deemed admissible in that the proposed amendments related to the Specialist Chambers and Specialist Prosecutor’s Office.[19] The Chamber has concluded that the proposed amendments “would diminish the fundamental rights and freedoms of persons involved in the proceedings”.[20]

This composition reveals the picture of an institution tightly connected to the legal system of Kosovo, both for the proceeding stages that mimic the three national instances (plus the Constitutional Court), and for the possibility to employ legal instruments that are part of Kosovo domestic sources, such as the Criminal Code and the Constitution. Despite those ties, the KSC and SPO maintains an international background, being staffed by international judges and prosecutors, as well as international legal and administrative officers and personnel.

  1. From the establishment to the indictments

As mentioned, it took five years for the SPO to file the first indictments, which was supposed to be the (expected) entire lifespan of the tribunal. Even if the factors influencing the progress of the investigations might have been many, from security to procedural concerns, the fact that Kosovo authorities were themselves former key figures within the KLA, and potential suspects, probably did not help. Those prominent persons were openly critical on the legitimacy and independency of the KSC, perceived as an unfair imposition from the International Community rather than a local initiative to see justice done – and they were not the only ones.[21] However, being critical has not been the only tool used to challenge the work and legitimacy of the KSC and SPO. Apart from political manoeuvres inside and outside the country – which triggered a pointed reaction of the United States and EU Member States[22] – quite a few obstructions occurred when former KLA members were summoned to The Hague.[23] Several persons questioned by the SPO made the summon – which is supposed to be confidential – public, while others did not comply with its orders.[24] It is no coincidence that the first substantive decision issued by the Specialist Chamber of the Constitutional Court regarded a petition filed by former KLA commander Mahir Hasani following the SPO order to provide documents and information in his possession.[25] Using the very unique feature of a constitutional referral, Hasani argued that the order violated his right against self-incrimination and presumption of innocence enshrined in the Constitution of Kosovo and the ECHR.[26]The Constitutional Court Chamber ultimately declared the referral inadmissible, having the SPO withdrawn the order.[27]

Given this background, the SPO released early in June a press statement publicizing the intention to bring charges against Thaçi and Veseli, deemed necessary because of repeated efforts by the two suspects “to obstruct and undermine the work of the KSC”.[28] Ultimately, Hysni Gucati and Nasim Haradinaji, respectively Head and Deputy Head of the KLA War Veterans’ Association, were recently arrested for – among others – attempted intimidation of witnesses, distribution to the media of confidential and non-public information and documents relating to the work of the SPO, including name and other information of certain (potential) witnesses.[29]

  1. What is happening now

Given this overview on the brief – and troubled – history of the KSC, it is opportune to proceed with the analysis of the two main proceedings. The first involve Salih Mustafa, aka Commander Cali, who was at the time of the facts the Commander of the BIA Guerrilla, a unit within the KLA. The second proceedings involve Thaçi, Veseli, Selimi, and Kranisqui, all founding members of the KLA – except Kranisqui – and prominent political figures at the time of the facts described in the indictment.

The indictment against Mustafa, confirmed on 12 June 2020,[30] states that crimes of arbitrary detention, cruel treatment, and torture were committed between approximately 1st April 1999 and 19th April 1999 at a detention compound located in Zllash/Zlaš, Kosovo, against at least six persons. It is also stated that one detainee was murdered in that location on a date approximately between 19th April 1999 and around the end of April 1999. Thus, the indictment charges Salih Mustafa with the counts of arbitrary detention, cruel treatment, torture and murder as war crimes committed in the context of and associated with a non-international armed conflict in Kosovo.[31] Mustafa entered a plea of not guilty for all the counts.[32]

The indictment against Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi was instead confirmed on 26 October 2020. The indictment states that the Accused committed war crimes of illegal or arbitrary arrest and detention, cruel treatment, torture, and murder, and the crimes against humanity of imprisonment, other inhumane acts, torture, murder, enforced disappearance of persons, and persecution in a timeframe going from at least March 1998 through September 1999.[33] The alleged crimes took place in Kosovo and in Northern Albania, and were committed by KLA members against hundreds of civilians and persons not taking part in hostilities. The victims included persons suspected of being opposed to the KLA and later the Provisional Government of Kosovo, namely: (i) the Serbian, Roma and Ashkali populations; (ii) Catholics; (iii) civilians allegedly collaborating with Serb authorities or allegedly interacting with Serbs; (iv) Albanians affiliated to or supporting the Democratic League of Kosovo or other parties perceived as anti-KLA; (v) Albanians who did not join or support the KLA; and (vi) individuals with current or former employment perceived as anti-KLA.[34]

The proceedings are still at a very early stage and none of the defense teams has filed on behalf of the Accused a preliminary motion before the Pre-Trial Judge to challenge the KSC jurisdiction or allege defects in the form of the indictment.[35] Nonetheless, a few preliminary observations could be advanced based on the available sources.

First – and unsurprisingly – the Pre-Trial Judge has already confirmed that there is a well-grounded suspicion that “a non-international armed conflict existed within the meaning of Article 14(2) of the Law between the Serbian forces and the KLA” from at least March 1998 through September 1999.[36] In particular, a non-international armed conflict (“NIAC”) takes place “in the territory of a state when there is protracted armed conflict between the organs of authority and organized armed groups or between such groups”.[37] Although simple, if this well-grounded suspicion will be confirmed, it will set the context not only for the cases currently under consideration, but also for future proceedings, since it implies that a NIAC existed basically in the whole period under the KSC temporal jurisdiction.

Secondly, in accordance with Article 15 of the Law, the KSC referred both to the Law and to the Criminal Code of the Socialist Federal Republic of Yugoslavia (“SFRY”) – hence the substantive criminal laws in force under Kosovo law during the KSC temporal jurisdiction – as legal basis for the charges contained in the indictments.[38] If this might appear as some sort of flexibility of the KSC in identifying the legal sources, it also seems a way to guarantee that the criminal (and criminalized) nature of the conducts of the Accused were foreseeable at the time when the facts occurred.

Additionally, with reference to the modes of liability, Article 16(1)(a) has been read as including direct commission, ordering, instigating, aiding and abetting, and joint criminal enterprise (“JCE”).[39] The latter is a mode of liability consolidated under the ICTY case-law which encompasses three forms, namely basic, systemic, and extended.[40] Both the indictments refer to the basic and extended form of JCE, alternatively. This means that the Accused will be responsible either if, by their acts or omissions, they contributed to achieving the common purpose, or if some or all of these individuals were not members of the JCE, but were used by members of the JCE to carry out crimes committed in furtherance of the common purpose (together with the JCE Members).[41]

Last but not least, it is worth mentioning that the KSC opened the victim application process in the case Specialist Prosecutor v. Hashim Thaçi, Kadri Veseli, Rexhep Selimi, Jakup Krasniqi, pursuant to Article 22 of the Law and Rule 113 RPE.[42] Even if other courts have already adhered to this feature proper of the civil law systems, such as the International Criminal Court (“ICC”) and the Extraordinary Chambers in the Courts of Cambodia (“ECCC”), it is the first time that victims of the conflict in the Balkan region have access to this tool. Those who will be granted the right to participate in the proceedings, will have the support of a Victims’ Counsel assigned by the Registry. Technically, the Victims’ Counsel will be assigned for “common representation” to groups of victims, but – looking at a further stage of the proceedings – the KSC foresees the possibility to order both individual and collective reparations.[43] The Pre-Trial Judge has already issued a decision that ought to give some guidance in relation to the collection and the assessment of victims’ applications.[44] It will be particularly interesting to follow the development of victim participation at the KSC, given the critics already moved against the ICC in finding an efficient and effective way to ensure this right.[45]

  1. Conclusions

“Five years and do not hear”, one might say. The KSC and SPO have taken some time, but now they are ready for action. The SPO reaped the fruits of its investigations all together, delivering seven Accused to the KSC, four of which are related to war crimes and crimes against humanity. The KSC, on its side, is working to make the proceedings move with fairness, but also expeditiousness. There are a lot of expectations on what is yet to come and curiosity on how the cases will unravel. To use the words of the Specialist Prosecutor, the hope is that “in the course of seeing that justice is done,” we do not “lose sight of the suffering of the victims”.

[1] See, KSC and SPO, “Indictment Against Hashim Thaçi, Kadri Veseli, Rexhep Selimi And Jakup Krasniqi Confirmed By KSC Pre-Trial Judge”, Press release, 5 November 2020, available here; “Arrest And Transfer Of Nasim Haradinaj “, Press release, 26 September 2020, available here; “Arrest And Transfer Of Hysni Gucati”, Press release, 25 September 2020, available here; “Arrest And Transfer Of Salih Mustafa”, Press release, 24 September 2020, available here.

[2] Article 39(4) and 39(5) of Law on Specialist Chambers and  Specialist Prosecutor Office, No.05/L-053, available here; Rule 92 of the Rules of Procedure and Evidence of the KSC & SPO (“RPE”), available here.

[3] C. Del Ponte, C. Sudetic, “La caccia – Io e i criminali di guerra”, 2008.

[4] There were indications that some Serbians and some Albanian Kosovars were held prisoner in secret places of detention under KLA control in northern Albania and were subjected to inhuman and degrading treatment, before ultimately disappearing. Allegedly, their organs were removed at a clinic in Albanian territory to be taken abroad for transplantation. See, among others, I. Traynor, “Former war crimes prosecutor alleges Kosovan army harvested organs from Serb prisoners”, 12 April 2008, available here.

[5] Council of Europe, Committee on Legal Affairs and Human Rights, “Inhuman treatment of people and illicit trafficking in human organs in Kosovo,” AS/Jur (2010) 46, 12 December 2010, p. 6, available here.

[6] Ibid.

[7] Council of Europe, Parliamentary Assembly, “Resolution on Investigation of Allegations of Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo”, Eur. Parl. Ass. Doc. 1782, 2011, available here.

[8] Ibid., paras 7-8.

[9] Assembly of Republic of Kosovo, “Law on ratification of the international agreement” (“The Exchange of Letters”), No. 04/L-274, 23 April 2014, available here.

[10] Assembly of Republic of Kosovo, “Amendment of the Constitution of the Republic of Kosovo”, No. 05-D-139, 3 August 2015, available here; “Law on Specialist Chambers and  Specialist Prosecutor Office”, No. 05/L-053, 3 August 2015, available here.

[11] Articles 10 and 11 of the Law.

[12] Articles 6, and 12-16 of the Law.

[13] Articles 7-9 of the Law.

[14] Article 3 of the Law and Article 22 of the Constitution of Kosovo.

[15] Article 35 (1) of the Law.

[16] Articles 24(1)(b) of the Law.

[17] Constitutional Court Chamber, KSC-CC-2020-11, “Letter of referral of proposed amendment to the Constitution of Kosovo“, 18 September 2020, available here.

[18] Constitutional Court Chamber, KSC-CC-2020-11, “Prosecution submissions on proposed amendments to the Constitution of Kosovo”, 19 October 2020, para. 9, available here

[19] Both the Head of EULEX Kosovo and the High Representative of the Union for Foreign Affairs and Security Policy submitted that the referral is inadmissible. See, Constitutional Court Chamber, KSC-CC-2020-11, “Written Submission by the High Representative of the Union for Foreign Affairs and Security Policy on the admissibility of the Referral”, 30 October 2020, available here; “Written Submission by the Head of EULEX Kosovo on the Admissibility of Referral KSC-CC-2020-11 on a Proposed Amendment on the Constitution of Kosovo by the President of the Assembly of Kosovo”, 30 October 2020, available here.

[20] Constitutional Court Chamber, KSC-CC-2020-11, “Judgment on the Referral of Proposed Amendments to the Constitution of Kosovo”, 26 November 2020, paras 69 and 76, available here.

[21] See A. Trigoso, “The Kosovo Specialist Chambers: In Need of Local Legitimacy”, in OpinioJuris, June 2020, available here; S. Van Den Berg and A. Zejneli, “Kosovo Specialist Chambers: Gearing Up for Uncomfortable Truths?”, in JusticeInfo, July 2019, available here.

[22] See U.S. Embassy in Kosovo, Quint Member States Statement, 4 January 2018, available here; U.S. Department of State, “Secretary Pompeos Meeting with Kosovo President Thaci”, 26 February 2020, available  here.

[23] Pursuant to Article 35 of the Law. Among the persons summoned there were the (now former) President of Kosovo Thaçi, Veseli, former Prime Minister Ramush Haradinaj, and former commander of the KLA, Azem Syla. See “The Hague-based Special court summons more former KLA fighters”, 12 November 2019, available here.

[24] See, among others, M. Lekaj, D. Morina, “Kosovo Ex-Commander Refuses Hague Prosecution Interview”, 12 December 2018, available here.

[25] Constitutional Court Chamber, KSC-CC-2019-05, Decision on the Referral of Mahir Hasani Concerning Prosecution Order of 20 December 2018, 20 February 2019, available here.

[26] Articles 30(6) and 31(5) of the Constitution of Kosovo; Article 6 ECHR. See Constitutional Court Chamber, KSC-CC-2019-05, “Petition By Mr. Mahir Hasani On The Violation Of His Fundamental Rights By The Specialist Prosecutor’s Office Through The Issuance Of Order VIY689, Dated 20 December 2018, To Produce Documents And Records And Request For Interim Measure”, 11 January 2019, available here.

[27] Ibid., supra note 17.

[28] KSC and SPO, “Press Statement”, 24 June 2020, available here.

[29] Basic Court Chamber, KSC-BC-2020-07, “Annex 1 – Public Redacted Version of Arrest Warrant for Hysni Gucati”, 24 September 2020, available here; Basic Court Chamber, KSC-BC-2020-07, “Annex 3 -Public Redacted Version of Corrected Version of Arrest Warrant for Nasim Haradinaj”, 24 September 2020, available here.

[30] Basic Court Chamber, KSC-BC-2020-05, “Public Redacted Version of Decision on the Confirmation of the Indictment Against Salih Mustafa”, available here.

[31] Basic Court Chamber, KSC-BC-2020-05, “Annex 2 to Public Redacted Version of Submission of confirmed indictment”, filing KSC-BC-2020-05/F00011 dated 19 June 2020”, 2 October 2020, para. 35, available here.

[32] Basic Court Chamber, KSC-BC-2020-05, “Further Initial Appearance and Status Conference”, Transcript, 28 October 2020, p. 60, available here.

[33] Basic Court Chamber, KSC-BC-2020-06, “ANNEX 3 to Submission of corrected and public redacted versions of confirmed Indictment and related requests”, 5 November 2020, paras 32, 172-173, available here.

[34] Ibid., paras 32, 41, 71, 93, 97-106, 112-133, 151-152, 156 and 170.

[35] Rule 97 RPE and Article 39(2) of the Law.

[36]Decision on the Confirmation of the Indictment Against Salih Mustafa”, supra note 27, para. 93; “ANNEX 3 to Submission of corrected and public redacted versions of confirmed Indictment and related requests”, supra note 30, para. 18. Although the decision is not available yet, the fact that the indictment against Thaçi, Veseli, Selimi and Krasniqi was confirmed means that the well-grounded suspicion of the existence of a non-international armed conflict covers the period from at least March 1998 through September 1999. See Articles 38(4) and 39(2) of the Law.

[37]Decision on the Confirmation of the Indictment Against Salih Mustafa”, supra note 27, para. 41.

[38] Ibid., paras 2, 5, 152-153.

[39] Ibid., paras 63-82.

[40] Ibid., para. 66 and footnote 83.

[41] Ibid., para. 8; “ANNEX 3 to Submission of corrected and public redacted versions of confirmed Indictment and related requests”, supra note 30, para. 35.

[42] KSC and SPO, “Victim Application Process Commences In The Case Of Specialist Prosecutor v. Hashim Thaçi, Kadri Veseli, Rexhep Selimi, Jakup Krasniqi “, Press release, 5 November 2020, available here.

[43] Article 22 of the Law; Rules 167 and 168 RPE.

[44] Basic Court Chamber, KSC-BC-2020-05, “Framework Decision on Victims’ Applications”, 27 November 2020, available here.

[45] See “Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report”, 30 September 2020, pp. 270-287, available here.

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