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After seven years, a rare trial for EU-funded Kosovo war crimes court

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By Orlando Crowcroft
In this Thursday Sept. 24, 2020, file photo Hysni Gucati head of the War Veterans Organization of the Kosovo Liberation Army speaks during an interview with AP.
In this Thursday Sept. 24, 2020, file photo Hysni Gucati head of the War Veterans Organization of the Kosovo Liberation Army speaks during an interview with AP.   -   Copyright  Visar Kryeziu/Copyright 2020 The Associated Press. All rights reserved.

On the scale of the charges levelled by Kosovo’s war crimes court against former members of the Kosovo Liberation Army, Hysni Gucati and Nasim Haradinaj’s alleged crimes appear to be minor.

Gucati and Haradinaj, the chairman and deputy chairman of the KLA Veterans Association in Pristina, are accused of leaking confidential documents during press conferences in Pristina in 2020. The men were indicted by the same court that recently indicted former president Hashim Thaci for war crimes.

Between 7 and 25 September 2020, Gucati and Haradinaj held a series of press conferences after claiming to have received confidential documents belonging to the Kosovo Specialist Chambers, the Netherlands-based war crimes court and its investigatory arm, the Special Prosecutor’s Office.

They are accused of giving the documents, which included names, addresses, and statements by witnesses in ongoing cases, to the press as well as branding ethnic-Albanian Kosovars who have cooperated with the court as “traitors”, “collaborators” and “spies”.

In a statement on October 18, prosecutor Jack Smith said that Gucati and Haradinaj were part of “a small but powerful group of persons in Kosovo that do not want this court to exist.”

“[They] will do anything to damage it in a vain attempt to salvage a false narrative that no KLA soldiers committed any crimes during the war.”

The statement has angered Haradinaj's defence team, with lead counsel Toby Cadman pointing out in a filing on Sunday that the statement violates the presumption of innocence required by the European Convention on Human Rights - not to mention local and international law.

It also "advances a public narrative in the context of the present case that victims are or have been threatened when this has not been proven," he said.

His application to have the statement removed from the KSC website was rejected by the judge on Monday, an SPO spokesperson told Euronews, in an oral decision.

Seven years since the Kosovo Specialist Chambers was set up by an act of the Kosovo parliament in Pristina -- after a campaign led by the then-president, Hashim Thaci -- it has just four ongoing cases.

By far the most advanced is that of Gucati and Haradinaj, which began last week in the Hague.

The only other ongoing trial is that of Salih Mustafa, was arrested in September 2020 and charged with arbitrary detention, cruel treatment, torture and murder at the Zllash detention compound in Kosovo. His trial opened on September 14, 2021, and Mustafa has pleaded not guilty to all charges.

Pjetër Shala, a member of the Kosovo Liberation Army (KLA) stationed in Kukёs, Albania, is facing trial for the torture and murder of detainees between 17 May 1999 and 5 June 1999 at the Kukёs Metal Factory, then a base used by the KLA. His trial has not yet begun.

And then there is by far the most high-profile case, that of Kadri Veseli, Rexhep Selimi and Jakup Krasniqi - as well as Thaci himself - which is due to open in December.

It includes six counts of crimes against humanity and four counts of war crimes.

Background

Back in 2008, former UN special prosecutor Carla Del Ponte alleged that KLA members, Thaci included, had carried out atrocities in northern Kosovo and Albania during and immediately after the conflict with Serbia.

These atrocities included the murder of Serb, Roma and other minority civilians, as well as ethnic Albanians accused of collaborating with Serb forces.

Among Del Ponte’s allegations was that the KLA had engaged in organ harvesting, a sensational claim which led to an investigation in 2011 by Swiss lawmaker Dick Marty on behalf of the Council of Europe.

Marty’s findings supported Del Ponte’s, also pointing the finger at Thaci, who, in 1998 and 1999, was the political leader of the militant group.

That second report led to a third, by a Special Investigative Task Force (SITF) set up by the EU and the US specifically to probe the allegations that the organs of KLA prisoners had been removed and later sold to private clinics in Kosovo and Albania.

It backed Del Ponte and Marty, although it said that organ harvesting had happened only on a “very limited scale”.

Visar Kryeziu/Copyright 2020 The Associated Press. All rights reserved.
Hysni Gucati, the head of the War Veterans Organization of the Kosovo Liberation Army is escorted by European Union security police officers.Visar Kryeziu/Copyright 2020 The Associated Press. All rights reserved.

It also reported that the KLA had carried out a campaign of persecution in the wake of the conflict, which was organised and sanctioned by “the top levels of KLA leadership”.

By 2015, Pristina was under mounting pressure over the SITF, Del Ponte and Marty findings from the US and Europe, who were in turn under pressure by Belgrade.

Serbia had seen six senior political and military figures jailed for between 15 and 27 years for atrocities carried out in Kosovo. Now, it wanted the senior leadership of Kosovo to face justice as well.

So in 2015, Thaci managed to persuade enough lawmakers to back the establishment of the Kosovo Specialist Chambers, which would be part of Kosovo’s justice system but be based in the Netherlands and staffed entirely by non-Kosovar staff.

Kosovo’s parliament voted 82 to five in favour of changing the constitution in order to set up the court, with 33 abstentions.

For the last five years, the court has busied itself in its brand-new €8m complex in the Hague, paid for by the Norwegian government, and with a €150m total budget between 2016 and 2020 from the EU.

It has also received funds from the Swiss government, which in 2018 and 2019 donated over €180,000 for outreach work in Kosovo, according to the KSC's latest annual reports.

The Special Prosecutor's Office, the court's investigatory arm, has handed down a total of seven indictments, all of them during 2020. They include Thaci and former speaker of parliament, Kadri Veseli.

Thaci, who was Kosovo’s president when he was indicted in October, resigned and delivered himself to the Hague, where he remains in 2021.

Despite having been brought into existence by Kosovo’s parliament, the court is extremely unpopular in Kosovo. It is seen as a direct attack on a military and political organisation that not only saved the country’s ethnic-Albanian majority from Slobodan Milosevic’s forces and ended a brutal campaign of ethnic cleansing but paved the way for an independent state.

It was Thaci who, in 2008 as prime minister, took Kosovo to independence, and his party, the Democratic Party of Kosovo (DPK), is dominated by former KLA fighters and leaders.

The KLA is part of the very foundation legend of the Kosovar state.

Albin Kurti

Despite the fact that Albin Kurti came to power in March 2021 in direct opposition to the KLA-dominated old guard like Thaci, Kosovo's new prime minister has little regard for the court in the Hague, telling Euronews earlier this year that he would prefer the cases to be heard in Kosovo.

And in February, Kosovo Specialist Chambers President Judge Ekaterina Trendafilova warned that the court was facing increased efforts from within Kosovo to hinder ongoing legal proceedings.

In a transcript of a confidential briefing, obtained by Euronews, Trendafilova said that attempts were already being made to challenge the law that set up the court in 2015, and could include efforts to either pardon those convicted of crimes or even see the entire court - and its vast confidential records - moved from the Hague, where it is currently based, to Prishtina, Kosovo’s capital.

“This certainly will put at stake the life, safety and security of people who have or will be willing to cooperate with us. Such changes would, certainly, have a chilling effect on witnesses, who may no longer want to appear, thus making it impossible for the Specialist Prosecutor to continue with his cases,” Trendafilova said.

Trendafilova, who is Bulgarian, also warned about the safety of witnesses appearing for the prosecution in ongoing cases and urged European nations to consider “comprehensive cooperation agreements” that could see witnesses and their families relocated to Europe.

'Climate of intimidation'

Gucati and Haradinaj had been critical of the court long before their now infamous press conferences in September 2020.

In that first conference, the indictment claims, confidential documents with names, addresses and telephone numbers of Serb, Roma and ethnic-Albanian witnesses that were involved in cases before the court in the Hague were laid out on a table in public view.

A week later, on 16 September, Gucati and Haradinaj, held another press conference, claiming that they had received a second batch of confidential documents. Over the next few days, the men claimed publicly that they did not recognise the special court and that they intended to obstruct its work.

On 22 September, Gucati and Haradinaj upped the ante: At a third press conference, Gucati held a copy of a leaked document up to a camera, showing the SPO logo of the special prosecutor. The documents, which included confidential witness information, were later seized by SPO police

In his October 18 statement, Smith said that Gucati and Haradinaj actions were part of the reason that the court was located in The Hague - and not in Kosovo - was due to a “climate of intimidation of witnesses and interference with proceedings”.

“The accused know this history well and hoped to use the same strategy here to intimidate witnesses because it had worked in the past," he said.

The trial continues.

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