The presentation of the evidence of the prosecution against former president Hashim Thaçi of Kosovo might take over six years. This warning was uttered by presiding judge Charles Smith at the Kosovo Tribunal in The Hague on Monday, March 20, 2023.
Thaçi and three co-accused are scheduled to go on trial on Monday, April 3, 2023. They are accused of war crimes by their Kosovo Liberation Army UÇK in 1998 and 1999, during its armed conflict with the Serbian police and the Yugoslav army. The bloodshed resulted from ethnic and political tensions between the Albanian majority and the Serbian minority in Kosovo, which was then a province in the Republic of Serbia within the Federal Republic of Yugoslavia.
The prosecution wants to call hundreds of witnesses and produce thousands of pages of evidence. Smith said the trial panel estimates that it would take six and a half years, and the American jurist invited prosecution and defence to negotiate and try and find ways to do things faster. The presentation of the incriminating evidence of the prosecution is followed by the presentation of the defence case, with the possibility of a second round of rebuttal and rejoinder from the two parties.
Cases before international and internationalised courts are notorious for their long duration. At the International Criminal Tribunal for the Former Yugoslavia (ICTY), the first international war crimes tribunal since “Nuremberg” and “Tokyo” after the Second World War (1939-1945), the first suspect, Duško Tadić, was taken into custody in April 1995. The Appeals Chamber did not deliver its final sentencing judgement until January 2000. Former Yugoslav and Serbian president Slobodan Milošević surrendered to the ICTY in June 2001. He died in the United Nations Detention Unit in Scheveningen in March 2006 when the tribunal had not yet reached a first instance judgement.
When the International Criminal Court (ICC) was set up in 2002, there were judges who wanted to be less bureaucratic and more expeditious than the ICTY. But the new court finally did worse. After the Congolese politician Thomas Lubanga came into its custody as the first suspect in March 2006, he had to wait until December 2014 to hear the final appeal judgement. Even worse: ex-president Laurent Gbagbo of Ivory Coast, the first and until now only head of state to be tried by the ICC, was transferred to The Hague in November 2011. It took almost ten years, until March 2021, for the Appeals Chamber to confirm the acquittal.
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There are objective factors that explain the long duration of cases before international courts. One of them is their often-extreme complexity. Murder trials at international tribunals are unlike cases before national courts. In national courts, the prosecution has to prove that, for instance, somebody killed his neighbour. This is a charge against an alleged direct perpetrator for an act at a given place and time. International trials are against heads of state, high-level politicians and against military leaders. They often have not only been conspicuously absent from the crime scene but were not even in the same country, like when Milošević was tried for a genocide in Bosnia that took place while he was at his desk in Belgrade, the capital of neighbouring Serbia. Or take Charles Taylor, the former president of Liberia, who was tried in Holland by the Special Court for Sierra Leone (SCSL) for crimes in the neighbouring West African country.
If the accused was not on the spot, the prosecution will not only have to prove that the crime actually took place (the “crime base”) but also that the accused had something to do with it (the “linkage evidence”). There may be a chain of command, in writing or orally. There may be a formal military hierarchy or, in case of a chaotic civil war situation, informal “effective control” in practice.
Apart from these objective elements, there are psychological factors. The spotlights of the world media are on the trial of a former president or vice president. It was perceived as a big defeat for the ICC’s Office of the Prosecutor (OTP) when Gbagbo was acquitted, same for former vice-president Jean-Pierre Bemba of the Democratic Republic of Congo. So out of an abundance of caution, prosecutors may be tempted to present an overload of evidence just to be on the safe side and to be sure they have tried everything they could to obtain a conviction. Another psychological factor is that there can be pressure and expectations from victims and witnesses.
During the Kosovo phase of the Milošević trial, I once put it to then ICTY chief prosecutor Carla Del Ponte that her evidence was rather repetitive. Time and again, Kosovo villagers came to tell how the Yugoslav army had first shelled their village with artillery from a distance. Then, Yugoslav soldiers and Serb policemen came in and started raping and killing. Del Ponte said that victims’ representatives had come to see her: victims wanted to come and testify before the tribunal and tell the judges about the horrors in their village, even if the same story of neighbouring villages had already been told. Victims, too, wanted their day in court.
Ultimately it is up to the professional judges to control the proceedings and find a balance between the wish of the victims to have their voices heard and the right of the accused to an expeditious trial while he is presumed innocent.
The Kosovo Tribunal, officially the Kosovo Specialist Chambers (KSC) and the Specialist Prosecutor’s Office (SPO), was set up in 2015 by the parliament of Kosovo under pressure from Western allies. It is part of the justice system of Kosovo but “relocated” to The Hague, where it has its seat in the former Europol building. It does work that the ICTY could not do, amongst other things, because of serious issues like witness intimidation. For security reasons, no one from Kosovo is allowed to work at the Kosovo Tribunal. (There is fear of leaks as Kosovo is a very traditional society with strong links within the extended family where people “know and help each other”.) The staff is from European Union countries and other states that support the court, like Switzerland and the USA.
