The Thaçi and others case, Tromp talks about high-level evidence and verdict scenarios
The Hague Tribunal for the Former Yugoslavia researcher, Nevenka Tromp, assesses that the testimonies of high-level witnesses called by the defense in the trial of Hashim Thaçi and others at the Specialist Chambers in The Hague had a clear purpose: to prove the lack of criminal intent of the accused.
According to Tromp, the choice of names with diplomatic and military weight was not a coincidence, but part of a well-calculated defense strategy to strike at the key element of the indictment - "mens rea", that is, criminal intent.
The first witness was James Rubin, former US Assistant Secretary of State. After him, the former legal advisor to the Albanian delegation in Rambouillet, Paul Williams, testified. In the Specialist Chambers in The Hague, the former political advisor to the NATO Supreme Commander, Wesley Clark, John Stewart Duncan, also testified. Then, James Peter Covey, who was the deputy of the UN representative in Kosovo, Bernard Kouchner. In Thaçi's defense, the former US diplomat also testified. Christopher Hill and Michael Durkee in the capacity of Wesley Clark's former political advisor.
One of the most important testimonies was that of General Wesley Clark.
The Hague Tribunal for the Former Yugoslavia researcher, Nevenka Tromp, speaks to KosovaPress about the importance of this evidence in this judicial process.
“What I can tell from the number and background of the defense witnesses is that it is very clear that the defendants chose two of the main defendants, Kadri Veseli and Hashim Thaçi, to go as high-level witnesses, who could testify to their intent, that is, the lack of criminal intent. And why is that important? In criminal cases, both sides, starting with the prosecution, have to bring evidence on the criminal acts, which is called ‘actus reus’ evidence, what crimes happened, are proven, how they are proven. And once you have a crime, you have to see who did it and why. The defendants did it, and this is called evidence of criminal intent or ‘mens rea’. The defense decided not to challenge whether the crimes happened or not; they accepted that the crimes happened in Kosovo, but by choosing the defense witnesses, they emphasize that they had no criminal intent and are not responsible for the crimes that may have happened as stated in the indictment. This is a very clever way to present the defense evidence,” adds Tromp. for KosovaPress.
Among other things, Tromp talks about expectations from the decision that is expected to be pronounced, although he claims that it is difficult to know.
“The justice system is interesting because the first instance decision can be appealed by both parties. If the decision is acquittal, the prosecution can appeal and we enter the appeal part of the trial. If the first instance decision is given next year [2026], if they are acquitted or if they are found guilty, we can expect at least some parts of the prosecution or defense to appeal the decision. There are several scenarios: acquit everyone without appeal, which is difficult, acquit but the prosecution appeals, or find guilty and both parties appeal. So, the probability of acquittal without appeal is about 20 percent, acquittal with appeal by the prosecution about 40 percent, and trial with appeal by both parties 40%. In this way, it shows how difficult it would be to place a bet on the outcome,” she states.
While talking about the ultimate significance of this major trial, Tromp also mentions the International Criminal Tribunal for the former Yugoslavia. She says the ICTY never found that "Albanians had established a joint criminal enterprise with the intent to harm Serbs."
“Why this decision would matter more than just the legal outcome for these four defendants is this: The Kosovo War was the subject of legal determination at the Yugoslav Tribunal, called the ICTY, the International Criminal Tribunal for Yugoslavia. In that tribunal, unlike the Kosovo Special Chambers for the Kosovo conflict, both sides were indicted, the Serbian side and the Kosovo Albanian side, that is, the leaders, six in total, were tried in two separate trials: the Haradinaj et al. case and the Fatmir Limaj case. On the Serbian side, Slobodan Milosevic was indicted, as were Vlajko Stojiljkovic and Vlastimir Dordevic in separate trials, while in the Milutinovic et al. case there were five defendants. Milosevic died during the trial. Milutinovic, the president of Serbia at the time, was found not guilty. All other Serbian defendants, accused of crimes in Kosovo, were found guilty and sentenced to very long sentences. "high prison sentences, over 20 years…The ICTY never found that the Albanian Kosovars had formed a joint criminal enterprise with the common purpose of harming the Serbs. The crime of this single defendant was considered an isolated incident. So, the ICTY absolutely clearly showed that it was able to distinguish between the aggressor – the Serbian and Yugoslav security forces who committed crimes against the civilian population in Kosovo in the period 1998–1999 – and the fact that the Albanian Kosovars self-organized to defend themselves and that in this process certain individuals committed crimes," she states, among other things.
She speaks of the major consequences that would have on the state and the pure history of the liberation war if the Special Court were to uphold the prosecution's accusation that the KLA four were part of a "joint criminal enterprise."
“What the Kosovo Specialist Chambers could do with their verdict next year in the Thaçi et al. case is, for example, to determine that the Kosovo Albanians organized in the KLA were part of a joint criminal enterprise. This would historically and politically equate their role with the role of the Serbian security forces. And all of you in Kosovo, even if you belong to the new generation born after 1999, have grown up with war stories. You yourselves know that this cannot be true. And yet, this court can impose such a narrative on you and the rest of the world. This will resonate in political and historical narratives, because the Serbian side will waste no time in including this in its versions of the past, in order to justify itself and relativize its crimes. The crimes will be relativized by comparing them with the crimes of the Kosovo Albanian forces, as The KLA; but any self-organized group of Albanian Kosovars who defended their homes, villages, streets and families would be included in this equation. Precisely for this reason, this court – the Kosovo Specialist Chambers – must be taken very seriously beyond fate and what is happening to individuals. It will affect the qualification of your liberation struggle and your freedom, as you know it,” she concludes.
Over the past year in Pristina, The Hague, Tirana, Strasbourg and Skopje, thousands of Albanians protested with the slogan “Justice for the Liberators”. Another protest will be organized on February 17 in defense of the former leaders of the Kosovo Liberation Army (KLA). With the motto “Justice, not politics” there will be a protest in “Skanderbeg” Square in Pristina on the 18th anniversary of the declaration of Kosovo’s Independence, KosovaPress reports.
This time, this protest is organized by the organization "Freedom Has a Name", which expects massive participation.
Former Kosovo Liberation Army leaders Hashim Thaçi, Kadri Veseli, Jakup Krasniqi and Rexhep Selimi have been in custody in The Hague since November 2020. Their trial began on April 3, 2023 – almost three years after the indictment was confirmed, since when the former KLA leaders have been held in the detention center in The Hague.
The Specialized Prosecutor's Office, which is holding former KLA leaders accountable for alleged war crimes, has brought about 125 witnesses, while relying on over 100 written testimonies.
