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From the Special Court's objection to the Hague verdict: What must the Appeal prove?

2026-09-19 14:42:04Pikëpamje SHKRUAR NGA SUELA HASANI

From the Special Court's objection to the Hague verdict: What must the

On September 16, 2026, the Kosovo Specialist Chambers Trial Chamber in The Hague issued one of the most important and at the same time most controversial decisions in Kosovo's legal history.

Hashim Thaçi and Jakup Krasniqi were sentenced to 25 years in prison each, Kadri Veseli to 18 years and Rexhep Selimi to 13 years. The court found them guilty of arbitrary arrest and detention, cruel treatment, torture and murder, finding them responsible for the arbitrary detention of 385 people, the torture of 303 people, the cruel treatment of 49 people and the murder of 96 people.

But the same panel found all four not guilty of crimes against humanity, as the Prosecution failed to prove beyond reasonable doubt that there had been a widespread or systematic attack against the civilian population. The court also acquitted them in relation to a number of separate incidents alleged to have been war crimes.

This is a first-instance verdict. Therefore, legally, its story is not over. And this is where the analysis begins.

A debate that did not start in 2020
To understand today's political reaction in Kosovo, we must turn back the clock more than a decade.

Albin Kurti was among the most consistent opponents of the creation of the Specialist Chambers long before it was known who would be indicted.

In the Kosovo Assembly, on 3 August 2015, he opposed the proposed architecture of the court, raising the issue of international judges, institutional oversight, special jurisdiction and its relationship with the ordinary justice system of Kosovo. The official transcript of the Assembly documents this opposition.

Kurti did not argue that every individual who had been part of the KLA should be immune from the law. On the contrary, he later said that allegations of crimes should be dealt with by normal courts and that justice should apply regardless of ethnicity. His objection was to the model of a specialized court for Kosovo alone and to what he considered selective justice, not to the principle of individual responsibility itself.

This distinction is essential.

Because serious debate cannot be about "trial or non-trial of crimes."

The question is: by whom, under what rules, with what jurisdiction, and with what standard of proof?

The court says: we are not trying the KLA.
The Trial Panel itself was aware of the extraordinary political dimension of the case.

In the introduction to the judgment, he expressly emphasized that the case was about the individual actions and conduct of the four defendants and not about the legitimacy of the KLA or the objective of Kosovo's independence.

In legal terms, this is a necessary distinction. A criminal court cannot condemn a war. Nor a people. Nor an army in the historical sense.

It must try identifiable people for identifiable acts, proving the objective and subjective elements of their responsibility.

But here arises a tension that cannot be ignored.

The Trial Panel did not merely find that the four individuals personally committed certain acts. It found that they made a significant contribution to a common criminal purpose of targeting persons perceived as opponents of the KLA's political and military objectives.

And this is where the legal issue becomes much more complex.

The crime may have been proven. But has the link connecting it to the leader been proven?
There are two questions that the public often conflate, but criminal law keeps them strictly separate.

First:

Did the crime happen?

Second:

Is this defendant criminally responsible for that crime?

It can be proven beyond a reasonable doubt that a person was tortured or killed and yet the criminal responsibility of a leader several levels above him remains unproven.

It is for this reason that the concept of joint criminal enterprise — JCE in the jurisprudence of the Hague Tribunal — has developed strict criteria.

In the Brđanin case, the ICTY Appeals Chamber expressly stated that JCE is not an open-ended concept that allows for “guilt by association.” The common criminal intent, the person’s participation, and his contribution must be proven beyond reasonable doubt; and where criminal intent is inferred, it must be the only reasonable inference that allows for evidence. The Court also required at least a significant contribution to the crimes for which the person is held responsible.

This is a standard of exceptional importance to the present case.

Because between the formulations: “opponent of the KLA”, “collaborator”, “spy”, “neutralization”, and the conclusion: “there was a common purpose for arbitrary detention, torture or murder”, there is a legal step that cannot be completed by intuition. It must be proven.

A political document is not automatically a criminal order.
Intelligence work to identify suspected collaborators is not in itself a criminal act.

The question is whether it is proven that the information was collected or transmitted with the intention of arbitrarily detaining, torturing or killing people.

Even a very harsh political statement is not in itself proof that its author intended the specific crime.

In Hague jurisprudence, when mens rea — the criminal mental state — is proven through circumstances rather than through a direct order, the problem of alternative interpretations takes on central importance.

If a statement can have two reasonable interpretations and only one of them is criminal, the “beyond a reasonable doubt” standard requires more than choosing the more severe interpretation.

Another point that deserves detailed scrutiny on appeal is the responsibility attributed to Rexhep Selim.

In international criminal law, the distinction must be maintained between:

knowledge that crimes may be occurring; failure to prevent them; and sharing the criminal intent to commit those crimes.

These are not legal synonyms. An institutional failure may be relevant to a form of liability, but it does not in itself prove the mens rea necessary to be complicit in a common criminal purpose.

If the Trial Panel has moved from “knew and did not prevent” to “shared criminal intent,” the Appeals Chamber will need to carefully examine the evidence that fills this gap.

For Hashim Thaçi, the legal situation is more complex, because the verdict does not only link him to his leadership position; the Trial Panel also alleges personal involvement in certain incidents. But even if a personal incident remains proven, another question arises:

How far can responsibility extend from that incident?

One proven act is not in itself proof that the accused shares responsibility for hundreds of other acts committed by other people, in other places and at other times. For that extension, proof of common criminal purpose is again required.

What could be the “Gotovina premise” in the Kosovo case?
This will be one of the most interesting questions when reading the full verdict.

Is the central premise:

that the term “collaborator” necessarily contained a criminal intent?

That the General Staff had effective control over local crimes?

That intelligence structures did not simply identify security risks, but deliberately supplied the mechanism of persecution?

That the communications constituted criminal incitement?

That impunity proves prior approval of the crime?

Or does the Trial Panel have ample and independent evidence that supports the conclusion even if some of these inferences fall short?

Innocence for crimes against humanity: what it shows and what it doesn't show
One of the most politically used arguments after the verdict is the fact that the charge of crimes against humanity was dropped.

The meaning of this needs to be clarified.

The fact that the Trial Chamber did not find a widespread or systematic attack against the civilian population does not automatically legally disprove common criminal intent or war crimes.

The elements are different. But this finding has analytical importance.

If a widespread or systematic attack is not proven beyond reasonable doubt, while a common criminal intent linking hundreds of crimes across a wide territory is established, then the verdict must explain with great precision:

where this purpose began and ended; which persons shared it; which victims were involved; which crimes were its realization; and which crimes were autonomous acts.

ICTY jurisprudence requires precisely the determination of the temporal, geographical and personal contours of the common purpose, as well as the significant contribution of the accused.

The political problem of selective justice
Here justice inevitably meets politics.

The Specialist Chambers are part of the Kosovo legal system. They were established following constitutional amendments and the adoption of Law No. 05/L-053 by the Assembly of Kosovo on 3 August 2015, following the process initiated by the allegations of the Council of Europe report and the SITF investigations.

But they are a sui generis mechanism: headquarters in The Hague, international staff, and specialized jurisdiction over a certain category of conflict-related claims.

It is precisely this architecture that has fueled the argument from the beginning that justice is being selectively designed.

Are four people on trial or a historical narrative?

This is perhaps the most delicate question of the entire process.

The Trial Panel insisted that it was not concerned with the KLA as an organization, nor with the character of the Kosovo war, but only with the individual criminal responsibility of the four defendants. In the strict sense of criminal law, this distinction is fundamental.

But the institutional history of this mechanism and the way the verdict is being used politically show why, in the public space, the separation is not so simple.

Serbia has been engaged in this narrative and institutional process long before the indictment was filed.

The chronology needs to be clarified. The Council of Europe investigation that later led to the Dick Marty report was not an exclusively Serbian initiative. The April 2008 motion was presented by Russian parliamentarian Konstantin Kosachev and signed by 17 members of the Parliamentary Assembly of the Council of Europe; among them was the representative of Serbia Miloš Aligrudić. It was this motion that led to the appointment of Dick Marty as rapporteur.

But Belgrade was not a passive spectator. When the Marty report was adopted in 2011, the Serbian Parliament itself officially declared that the Serbian delegation had been “particularly active” during the process at the Parliamentary Assembly of the Council of Europe and welcomed the resolution as a step towards opening an international investigation.

The engagement then shifted from diplomacy to the collection and transmission of evidence.

A review published in 2026 on the functioning of the Specialist Chambers highlights that the admission of materials from Serbian authorities has been one of the most debated issues of the KLA trial and documents statements according to which Serbian institutions searched archives, identified persons with information and encouraged witnesses to give statements to the Specialist Prosecutor's Office. The authors also emphasize something that is legally necessary: ​​the Serbian origin of a piece of evidence does not automatically make it false or inadmissible, but the institutional interest of the source, authenticity, provenance and chain of custody require particularly rigorous control.

The issue is not theoretical. Admitted to the process were, among other things, a handwritten notebook and a typewritten document with manuscript additions, presented as KLA intelligence and counterintelligence documents that were allegedly seized by Serbian forces during the war and then passed on to the Specialized Prosecution. The same review reports that at least 2,356 documents originating from Serbia or its organs were identified in the evidence management system.

Here a legitimate question arises that goes beyond the technicality of admissibility of evidence:

What political interest did the Serbian state have in the outcome of this process?

The answer does not need to be completely guessed, because in some cases Serbian officials have articulated it themselves.

In 2019, as part of what Serbian media called an "offensive" in the US Congress, Foreign Minister Ivica Dačić declared that Serbia should use the opportunity to oppose the "Albanian lobby" and present the crimes of the KLA to the American public.

Serbia saw the process not only as a matter of individual justice for the victims, but also as an important instrument in the international battle over the interpretation of the Kosovo war.

This became quite apparent in the minutes and hours following the September 16 verdict.

Ivica Dačić officially declared that the decision was, in his opinion, “confirmation” of what Serbia had been claiming for more than a quarter of a century: that the KLA was a “criminal and terrorist organization.” He went further, saying that the verdict had demolished the narrative of “national heroes” and a “just liberation war” before world opinion.

This interpretation was immediately amplified by a part of the Serbian press. Večernje Novosti, before the verdict was read, headlined about “criminal KLA leaders”, while Politika published the position that the decision confirmed the characterization of the KLA as a criminal and terrorist organization.

So the question is: Is a legally conceived process for the individual responsibility of four people being used to produce in the public a much broader conclusion — that the KLA itself was criminal and that its liberation war was a false narrative?

Statements by Serbian officials after the decision show that this is at least one of the articulated objectives of Belgrade's narrative policy. And herein lies the great paradox of this process:

The court says it is trying four individuals. But the materials in the process were supplied by the very state that would legitimize the KLA's just liberation war.

The question the Appeals Chamber must ask itself is: Did the Prosecution prove, beyond a reasonable doubt, not only that these crimes occurred, but that each of these four people had the mens rea, the contribution and the legal nexus necessary to be held criminally responsible for them to the extent established by the judgment?

If so, the verdict should be able to survive the most rigorous appellate scrutiny. If not, the task of the Appellate Court is to correct precisely those findings that the evidence does not support. For therein lies the difference between history and criminal justice.

And to do so, the standard remains one that must be stronger than any political narrative: beyond any reasonable doubt.

 


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