JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)

This common purpose involved the commission of the crimes of persecution, imprisonment, arbitrary detention, other inhumane acts, cruel treatment, torture, murder and enforced disappearance. Its existence and contours are indicated by: (i) early public statements of the [Kosovo Liberation Army (KLA)], preceding the period of the charges; (ii) communiqués and political declarations of the KLA General Staff, public statements of KLA General Staff members, as well as other KLA publications, during the period of the charges; (iii) regulations, structures, directions and orders drafted, issued or approved by the Suspects; (iv) the pattern of crimes committed at the locations indicated under Counts 1-10; and the personal participation of the Suspects and other senior KLA/[Provisional Government of Kosovo (PGoK)] members in the commission of the crimes.

Prosecutor v. Thaçi et al., KSC-BC-2020-06/F00026/RED, Public Redacted Version of Decision on the Confirmation of the Indictment Against Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, 26 October 2020 (“Confirmation Decision”), para. 454 (footnotes omitted).

In the heavily redacted 235-page public decision issued by the Kosovo Specialist Chambers (KSC) on 30 November 2020 confirming its first Indictment, the Specialist Prosecutor’s Office (SPO) lays out a cascade of crimes. A four-year trial lies ahead.

As predicted, the SPO argues that the crimes were committed pursuant to a joint criminal enterprise (JCE).1Confirmation Decision, para. 104. The Pre-Trial Chamber, in confirming the Indictment, applied JCE in all its forms. Was this appropriate? No. It was ultra vires – especially the application of JCE III.

Now, some general observations before getting to JCE.

If the crimes alleged are supported by the claimed evidence (hard to tell because of the redactions), any reasonably informed observer of the International Criminal Tribunal for the former Yugoslavia (ICTY)2The ICTY was established by the United Nations Security Council (UNSC) under Chapter VII of the UN Charter to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. It had no specified end date in regard to its temporal jurisdiction. See UNSC Res. 827, S/RES/827 (1993), para. 2. See also Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), Art. 1. and the European Union Rule of Law Mission in Kosovo (EULEX)3EULEX was established in 2008 by the European Union Common Security and Defence Policy to strengthen the rule of law in Kosovo by assisting and supporting relevant rule of law institutions. See generally EULEX, What is EULEX?. should query in wonderment why it has taken over 20 years to initiate prosecutions for such widespread and systematic crimes of breathtaking proportions.

Kosovo Specialist Chambers, The Hague

If, as the quoted text from the Confirmation Decision reveals, there were public statements, publications, and other readily accessible material that warned of, and/or encouraged the commission of the crimes alleged, why has this evidence been overlooked for so long? Why was this evidence not promptly and properly collected if the criminal conduct and crimes were pervasive, penetrating, and public? Why the nearly two-decade wait to start the investigation, after evidence has been lost, compromised, or manipulated (never to be ruled out), and after witnesses’ memories – the source of their evidence – has faded, been influenced, or been tampered with?

If, as Pre-Trial Judge Nicolas Guillou found in confirming the Indictment, the evidence establishes a well-grounded suspicion to satisfy an objective observer that Messrs. Hashim Thaçi, Kadri Veseli, Rexhep Selimi, and Jakup Krasniqi committed the alleged crimes, then why was this evidence not considered by the ICTY when the other Kosovo cases were brought before it?4Former ICTY Prosecutor Carla del Ponte questioned why the ICTY should not try those alleged to have committed crimes in Kosovo after the deployment of the NATO-led Kosovo Force on 11 June 1999. Addressing this concern in her Address to the UNSC on 24 November 2000, del Ponte requested that Article 5 of ICTY Statute be amended to remove the requirement that there be an “armed conflict” from the definition of crimes against humanity, which would have made it comparable to the Statute of the International Criminal Tribunal for Rwanda. See ICTY Press Release, Address to the Security Council by Carla Del Ponte, Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, to the UN Security Council, JL/P.I.S./542-e, 24 November 2000. The UNSC did not grant this revision. See Special Investigative Task Force, Statement of the Chief Prosecutor of the Special Investigative Task Force, 29 July 2014, p. 4. See also Carla del Ponte and Chuck Sudetic Madam Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity (Feltrinelli ed. 2008), Chapter 11, wherein del Ponte alleges that in Kosovo, during the conflict period, human organs were taken from Serbian prisoners and trafficked. Ditto for EULEX, which, effectively, was handed the baton by the ICTY to prosecute war crimes and crimes against humanity in Kosovo.5EULEX’s mandate included investigating, trying and prosecuting war crimes. See Bodo Weber and Lowell West, EULEX — Towards an Integrated Exit Strategy — Strengthen the Rule of Law through EU Integration, GLPS and DPC Policy Report No. 5 (April 2014), p. 14. EULEX had the capacity to carry out these investigations and prosecutions considering that its donors had sufficiently deep pockets. See Fisnik Korenica, Argjend Zhubi, and Dren Doli, The EU-Engineered Hybrid and International Specialist Court in Kosovo: How ‘Special’ is it? 12 Eur. Const. L. Rev. 474, 467-77 (2016). Whether EULEX had the inclination to carry out investigations and prosecutions is another matter.

These questions may seem like deflections and diversions typically coming from a defense lawyer in desperate search for a mooring on which to tie an extravagant rupture strategy6A trial strategy credited to the late Jacques Vergès of putting the system (political and judicial) on trial through disruptive means if necessary to highlight systemic and pervasive inequities.  in hopes of delegitimizing the process and the results – a red herring.7Merriam-Webster Dictionary: “2: [from the practice of drawing a red herring across a trail to confuse hunting dogs]something that distracts attention from the real issue.” Perhaps, but hardly so. It seems fundamentally unfair to the accused to wait (no pernicious intent is being ascribed) until the evidence is uncertain, unavailable, untrustworthy, and so on, to launch prosecutions that effectively deny the accused expeditious proceedings.

Here I am not talking about holding reasonably time-efficient trials once the accused are indicted – not that the international(ized) tribunals and courts have paid much mind to this as detained accused – cloaked with the presumption of innocence – remained in custody for years waiting to be tried. Rather, I am referring to the expeditiousness of investigating, and if appropriate, prosecuting within a reasonable time after the commissions of the alleged crimes. The accused’s rights to adequate facilities for the preparation of the defense,8General Comment No. 32, Article 14, Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32, 23 August 2007, para. 33: “‘Adequate facilities’ must include access to documents and other evidence; this access must include all materials that the prosecution plans to offer in court against the accused or that are exculpatory.” including the right to be afforded the opportunity to gather evidence, are severely compromised with the passage of time.

And, of course, what of the victims? They too have rights. There is much truth in the aphorism justice delayed is justice denied. The victims also deserve to have fair and expeditious trials and to see justice being done – to have prompt investigations when the evidence is fresh and available, to have witnesses interviewed as close to the events as possible, and to have trials when surviving victims are alive or well enough to have their story told. To paraphrase Voltaire,9“To the living we owe respect, but to the dead we owe only the truth.” to the living victims we owe accountability, but to the dead victims we owe absolutely the truth.

Whether these issues feature during the trial remains to be seen – though the smart money is on the defence calling into question (and rightly so) the quality of evidence, which, invariably, will have been compromised by the passage of time.

Back to JCE. For brevity sake, I will just raise some initial concerns as to why JCE is inapplicable at the KSC, leaving it to Part 2 to discuss in more detail how JCE was concocted and why it is not customary international law (CIL) – especially JCE III.

Reading the Confirmation Decision, my attention was caught by the Latin phrase “inter alia” when describing the modes of liabilities under Article 16(1) of the Law on Specialist Chambers and Specialist Prosecutor’s Office (KSC Statute).10Confirmation Decision, para. 25. What would the other things be? You have the Criminal Codes of the Socialist Federal Republic of Yugoslavia and the Socialist Autonomous Province of Kosovo (see KSC Statute, Art. 15), and you have the applicable 2012 Kosovo Criminal Procedure Code.

Of course, you also have CIL (see KSC Statute, Art. 12). Here is the battle ground where the applicability of JCE at the KSC will be fought. It should come as no surprise that many of the judges in the various chambers will give short shrift to arguments against JCE being established in CIL by resorting to Tadić and its progenies, without looking to any jurisprudence to the contrary – as can already be gleaned from the Confirmation Decision (more on this in the next post).

Any reference to JCE, in any of its forms, is noticeably absent in the KSC Statute. JCE was also not a mode of liability applicable at the time the crimes were committed, as stipulated by Article 12 of the KSC Statute: “The Specialist Chambers shall apply customary international law and the substantive criminal law of Kosovo insofar as it is in compliance with customary international law, both as applicable at the time the crimes were committed….”

Nor is JCE found in the relevant provisions of the 2012 Kosovo Criminal Procedure Code (Articles 8-10, 17, 21-24, 27-40). Arguably, Articles 34 and 35 of the 2012 Kosovo Criminal Procedure Code – “criminal association”112012 Kosovo Criminal Procedure Code, Art. 34(1): “Whoever agrees, explicitly or implicitly, with one or more persons to commit or to incite the commission of a criminal offense that is punishable by imprisonment of at least five (5) years, and undertakes preparatory acts for the fulfillment of such agreement, shall be punished as provided for the criminal offense.”  and “agreement to commit criminal offense”122012 Kosovo Criminal Procedure Code, Art. 35(1): “Whoever agrees with one or more other persons to commit a criminal offense and one or more of such persons does any substantial act towards the commission of the criminal offense, shall be punished as provided for the criminal offense.” – could loosely be read to include JCE I and JCE II (they certainly do not include JCE III), Article 31 explicitly provides that co-perpetration is the mode of liability to hold persons jointly responsible for committing a criminal offense in Kosovo.132012 Kosovo Criminal Procedure Code, Art. 31: “When two or more persons jointly commit a criminal offense by participating in the commission of a criminal offense or by substantially contributing to its commission in any other way, each of them shall be liable and punished as prescribed for the criminal offense.” Nonetheless, these modes of liability listed in the 2012 Kosovo Criminal Procedure Code are only applicable to offenses against the administration of justice listed in the Criminal Code of the Republic of Kosovo, not core crimes under the KSC Statute.14See KSC Statute, Art. 15(2): “Chapter XXXII, Articles 384-386, 388, 390-407, Chapter XXXIII, Articles 409-411, 415, 417, 419, 421, and Chapter XXXIV, Articles 423-424 of the Kosovo Criminal Code 2012, Law 04/L-082 shall apply to the official proceedings and officials of the Specialist Chambers, the Registry and Specialist Prosecutor’s Office. The Specialist Chambers shall have jurisdiction over these offences only where they relate to its official proceedings and officials.” Id. Art. 16(3): “3. For crimes under Article 15 (2), the individual criminal responsibility provisions contained in the Kosovo Criminal Code 2012, Law No. 04/L-082, Articles 8-10, 17, 21-24, 27-40, shall apply.” And in any event, JCE’s application to the alleged crimes committed from March 1998 through September 1999 would be ex post facto.

If JCE was indeed established as a mode of liability in CIL at the time of the alleged events for which the accused have been indicted, why not expressly state this in the KSC’s Statute. Could it be that it could not come in through the front door, so best to slip it through the backdoor under the catchall of last resort – CIL? It seems so.

To be continued in the next post.

 

Footnotes[+]

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

One thought on “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)”

  1. Thanks for updating us on that. Concerning the passage of time and lack of fresh evidence:

    Maybe this is precisely the cause, for such digging and traveling back in time, for extracting such evidences. When time has passed, one may rely rather on more circumstantial evidences rather, over forensic or alike substantial evidences.

    Let alone, while in international criminal cases, we deal with remote perpetrators. Means, those that are most responsible and in charge or giving orders, may not be in the criminal scene even. So, what is left, is to check on their responsibility for: planing, conceiving, ordering from remote places.

    Hitler for example, surly didn’t operate in no way any gas chamber. But, did more in criminal terms, over those soldiers on the ground operating it.

    Thanks

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