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Accusation Against Thaçi Is Premature Or In A Timely Manner? – OpEd

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Only just a few days before the well-planned Kosovo and Serbia summit in the White House, mediated by Richard A. Grenell, the Special Prosecutor for Kosovo made public the indictment against President Hashim Thaçi and Democratic Party Chairman Kadri Veseli. They both are charged with war crimes and crimes against humanity in connection with the murder of 100 Serbs, Albanians, political opponents, and members of Roma community between 1998 and the beginning of 2000.  

The Special Prosecutor presented the indictment folder to the Special Court judge on April 24th, 2020. According to the criminal procedure, the judge examines the file within 6 months, at which time he either confirms the charges of Thaçi and Veseli or returns it for a follow-up, expanding and completing the investigation again in the Special Prosecutor’s office. According to the procedure, in this 6-months period, the names of the accused defendants remain confidential. Meanwhile, the Special Prosecutor and his information office made public the indictment almost two months after the submission, four months before the trial date and only two days before the White House summit between Kosovo and Serbia.

The whole discourse of these days is about the questions: why was the indictment against the President of Kosovo, Thaçi, made public early? Was this a consequence of the differences between the EU and the US over the Washington summit? Was this public information related to ‘Special Court’ and with the prevention of the partitioning of Kosovo in Washington? Was it about trying to reciprocate the Kosovo-Serbia mutual amnesty? Based on everything that has been made public, as well as the analysis of various direct and indirect sources, there are two main reasons why the indictment was made public prematurely and only a few days before the Washington Vučić – Thaçi summit organized by Richard Grenell. First of all, it is necessary to know something about the ‘Special Court’ in Kosovo, because it is noticed that there is a lot of talk, but little is known.

How and why was created the ‘Special Court’ in Kosovo

After the war of 1999, Kosovo was under the UNMIK administration under UN Security Council Resolution 1244. From 1999 to 2008 in Kosovo justice passed into the hands of UNMIK. In 2008, the EULEX EU Justice and Law Mission was established in Kosovo. Meanwhile, there were also local justice bodies in Kosovo. For a period of about 15 years, these three justice structures of UNMIK, EULEX and Kosovo failed to undertake investigations and prosecute cases of war crimes and crimes against humanity in the period before and after the war of 1998-2000 in Kosovo.

For this reason, Kosovo was accused internationally afterwards as a country of impunity with a lack of sovereignty of domestic and international law. Kosovo’s international reputation began to decline. Amid this high international awareness of war crimes and crimes against humanity for some senior Kosovo Liberation Army (KLA) individuals and the failure of UNMIK, EULEX and local justice institutions in Kosovo to investigate and prosecute these suspected cases, was created a vacuum in the country that prompted the European Union (EU) and the United States (US) to take this initiative forward and establish a special body in 2015.

There were great debates and dilemmas in Kosovo about this special institution of justice. But for Kosovo the alternatives were twofold: either establish the Kosovo Special Prosecution and Court, composed by the EU and the US, funded by the EU and based in the Hague, or to appoint the UN Security Council to create a prosecutor and a court (ad hoc basis) for Kosovo. The second alternative would involve Russia and People’s Republic of China in this process, rather dangerous due to their own position against Kosovo.

Between these two alternatives, based on an international agreement, the National Assembly of Kosovo adopted in 2015 an amendment to the constitution as well as approved the Law on Specialized Chambers and the Office of the Specialized Prosecutor of Kosovo. They are temporary institutions, with mandates and jurisdictions established to investigate for crimes against humanity, war crimes and other crimes under the Kosovo law, that were possibly committed in Kosovo between January 1st, 1998 and December 31st, 2000 by individuals with a citizenship of Kosovo or the Federal Republic of Yugoslavia, or committed against citizens from Kosovo or the Federal Republic of Yugoslavia. The Specialized Chambers as well as the Office of the Specialized Prosecutor of Kosovo are based in the Hague, the Netherlands. Their staff is international, from the EU and the US while funding is from the EU.

The suspected war crime cases in Kosovo, from 1999 onwards, were taken over by the Specialized Chambers and the Specialized Prosecutor’s Office, otherwise known as the Special Court. The uniqueness of the handling of suspected cases now rests in the fact that the Specialized Chambers, although comprised of international judges and prosecutors based in The Hague, operates under the Criminal Code and applicable laws of the Republic of Kosovo. The Chambers are part of the Kosovo justice system and are attached to the Main Court, the Court of Appeals, the Supreme Court, and the Constitutional Court. Currently, the Special Prosecutor’s Office has sent invitations for interviews and testimonies to several people, mostly former members of the KLA. But all these indictments, including those against President Thaçi and former Speaker of the Kosovo Assembly Kadri Veseli, are completely individual charges and not against the KLA.  Now, let us return to the question of why the indictment against Thaçi was made public some time ago.

First reason: Threat of Dissolving “Special Court” with a Parliamentary resolution in Kosovo  

Through numerous sources of information, including calls for witnesses and defendants for interviews in the Hague, it became clear that the “Special Court” for Kosovo had begun to work seriously, at the same time certain efforts were launched in Kosovo – by political circles and senior officials – to dissolve the Prosecutor’s Office and the Special Court. An organized lobbying and various initiatives began to prepare a petition in the National Assembly of Kosovo. This was a very harmful and dangerous regressive process for Kosovo, justice and the rule of law.

The US Ambassador to Kosovo, Gregory Delawie, immediately reacted to these efforts. At an event on December 22nd, 2018, Amb. Delawie stated: “I am here to talk about Kosovo’s commitment to justice and its future as a democratic and European country. This commitment is under serious threat from an initiative to repeal or amend the law authorizing the Special Court”. Amb. Delawie continued: “those who support this initiative – and those politicians who lead it despite their denials – will suffer the specific and severe consequences if this initiative succeeds. The United States will do everything in its power to ensure that the Court has the opportunity to complete its mandate. Kosovo cannot be a place where impunity is a pattern.”

Furthermore, Ambassador Delawie raised the question: “Do you want Kosovo to be a place where the rule of law does not apply to those in power or their political friends? Do you want Kosovo to be a place where criminals do not face any consequences for their crimes? Do you want Kosovo to be the country left behind when others join the European Union? Or you want Kosovo to be a place where the rule of law is respected, which protects the rights of victims and takes its rightful place as a respected member of the international community and is an ally of the United States of America?” 

While immediately echoing the words of the US Ambassador to Kosovo Greg Delawie, Washington Post, on December 22nd, 2018 published the article: “US warns Kosovo against the Law on Special Court”, which quoted the US Ambassador to Kosovo as follows: “I must say that I am very disappointed that this thing came out of nowhere in the last few days, without any public discussion on this issue that is deeply important for the future of Kosovo. This is shameful from my point of view … If this initiative succeeds, then there will be extremely negative implications for the future of Kosovo as part of Europe. It will be considered by the US as a stab in the back. Kosovo will choose isolation, instead of cooperation, and I hate to say that the clock will run backwards for Kosovo.”

Second reason: The threat of dissolving special court in exchange of territorial partitioning   

When the attempt to dismantle the “Special Court” initiated by various MPs and politicians (from inside Kosovo) had failed, then the second move was taken to dismantle it with international agreements, through international law. The Kosovo-Serbia negotiations were used for this purpose. It was for this reason that the negotiations between Kosovo and Serbia were ingrained on a conspiratorial path for two years. Not a degree of transparency, inclusiveness or accountability was associated with these negotiations. Everything was agreed later, vaguely, and confusingly. But it was revealed into the public.    A real bargain has been made between Thaçi, Vučić and Rama. This bargain was apparently facilitated by the confusion of diplomatic envoys Bolton-Grenell from the White House.

In negotiations this bargaining process is known as ‘tit-for-tat’, or in other words ‘I give this to you, so you can give that to me’… and so the bargain continues until the parties agree on the deal. In the case of conspiratorial Kosovo-Serbia talks between Thaçi, Vučić and Rama, the ‘tit for tat’ process has also been tied to the dissolution of the Special Court for Kosovo. In direct terms, the aim was to ‘exchange the dissolution of Special Court with territorial concessions in favor of Serbia’.

This exchange, which simultaneously threatened the existence of Kosovo’s ‘Special Court’ and the full territorial integrity of Kosovo, is thought to have been one of the main reasons why the Special Prosecutor raised his voice on the indictment against President Hashim Thaçi – only two months after submitting the folder to the special judge – in June 2020; a few days before the convoluted summit between Thaçi and Vučić in the White House, mediated by Amb. Richard A. Grenell.

This moment has juxtaposed the interests of the “Special Court” with those of the protection of the territorial integrity of Kosovo. It is this very fact that the prestigious ‘Der Standard’ has publicly pointed out these days. In a separate article, written by Adelheid Wölfl; Der Standard states that “Thaçi was offered the dissolution of the Special Court, in exchange for being lenient to Serbia.” Analyzing Thaçi’s speech in his first public appearance after the indictment, the author notes that “Thaçi tried to hide behind the KLA even though he was personally accused by the Prosecutor.”

Furthermore, the author of the text, Adelheid Wölfl, claims that “Washington agreement provided for the dissolution of the Special Court, in exchange for the territorial concessions that Thaçi would make to Serbia.” But the so called “dirty deal” was not achieved.

The author quotes the Commissioner for Transatlantic Affairs in the German Government and member of the German Bundestag, Peter Beyer, who commented on the indictment against Thaçi: “It is important for me to emphasize that the KLA is not in the bench of convictions. The accused here are individuals who were in the position of KLA leadership at the time. Reconciliation begins when dealing with the consequences of the war of 1999-2000.  This can only work if war crimes – committed by anyone who has been identified – are proved and handled by law.” Furthermore, Beyer was quoted: “The Special Court and the Public Prosecutor’s Office play an extremely important role in this regard and should be strongly supported by all social and political forces in Kosovo and European partners”. “Trump’s envoy [concludes Der Standard] Richard Grenell ‘concocted’ this deal that now is futile.” 

From a few indirect sources, it has also been pointed out that in the conspiratorial talks ‘tit-for-tat’ there was a kind of ‘criminal amnesty for war crimes and crimes against humanity’, mainly for Thaçi, the amnesty that Aleksandar Vučić would offer for the benefit of the territories of Kosovo. And for this amnesty to be accomplished, the ‘Special Court’ in Kosovo had to be disbanded.

Legally, this could have been done through a draft agreement, after being signed at the White House, would be ratified in the National Assembly of Kosovo. And if the agreement were ratified as an act of international law, based on the principles of law, it would prevail over all acts of domestic law, including the constitutional amendment and the law on ‘Special Court’ in Kosovo. Logical analysis leads to the fact that this was the scheme of dismantling the ‘Special Court’, through which Thaçi’s amnesty would be exchanged with Kosovo granting territories to Serbia.

The premature publication of the indictment against Hashim Thaçi and Kadri Veseli by the Special Prosecutor, in fact defending the existence and functioning of the “Special Court” in Kosovo, was prevented the dirty agreement of demolishing the ‘Special Court’ and bolstering Thaçi’s impunity by giving Kosovo’s territories to Serbia.

The premature publication of the indictment was exactly the moment that fully matched the interests of the protection of the ‘Special Court’ with the protection of the territorial integrity of Kosovo. Now the following question is relevant: is the indictment against Thaçi premature, or in a timely fashion? Based on the above analysis, the publication of the indictment against Thaçi and Veseli was made at the right time.

This article was translated from Albanian Language by: Peter M. Tase

Sources:

Ambassador Delawie’s speech regarding the Special Court, 17.01.2018: https://xk.usembassy.gov/sq/fjala-e-ambasadorit-delawie-lidhur-gjykaten-speciale/ 

https://www.washingtonpost.com/national/us-warns-kosovo-against-changing-the-law-on-special-court/2017/12/22/cdf111a4-e73c-11e7-927a-e72eac1e73b6_story.html?utm_term=.7c51faef9356

Dr. Lisen Bashkurti

Dr. Lisen Bashkurti

Assoc. Prof. Dr. Lisen Bashkurti is the Dean of the Faculty of Law and Social Sciences (FLSS), Epoka University, Tirana, Albania. In 1992-1993, Bashkurti was the ambassador of Albania to the Republic of Hungary.

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