Dean B. Pineles, Washington DC, July 14, 2020

The announcement that war crimes charges had been filed against Hashim Thaci and Kadri Veseli caused a political storm, but questions persist about whether prosecutors in The Hague were justified in making the accusations public.

On June 24, the Specialist Prosecutor’s Office in The Hague issued a bombshell press release that has reverberated throughout the Western Balkans, the European Union and the United States.

Was the Specialist Prosecutor’s Office authorised to do so? And what was the purpose?

The press release stated that on April 24 of this year, the Specialist Prosecutor’s Office filed a ten-count indictment with the Kosovo Specialist Chambers charging Hashim Thaci, Kadri Veseli and unnamed others with a series of horrific crimes: crimes against humanity and war crimes, including nearly 100 murders, enforced disappearances, persecution and torture, all of which involved hundreds of known victims.

The release mentioned that the indictment is only an accusation, but nevertheless reflected the Specialist Prosecutor’s Office’s determination that it can prove the charges beyond a reasonable doubt.  A pre-trial judge is currently reviewing the indictment to decide whether to confirm the charges (and has six months to render a decision).

The text then offered the rationale for this extraordinary and unprecedented prosecutorial manoeuvre.

“The Specialist Prosecutor has deemed it necessary to issue this public notice of charges because of repeated efforts by Hashim Thaci and Kadri Veseli to obstruct and undermine the work of the KSC,” it said.

“Mr. Thaci and Mr. Veseli are believed to have carried out a secret campaign to overturn the law creating the court and otherwise obstruct the work of the court in an attempt to ensure that they do not face justice. By taking these actions, Mr. Thaci and Mr. Veseli have put their personal interests ahead of the victims of their crimes, the rule of law, and all people of Kosovo.”

Thaci, of course, is the current president of Kosovo, and Veseli is a prominent political figure and former speaker of the Kosovo Assembly. Both are former high-ranking commanders in the Kosovo Liberation Army who have been on the war crimes radar for at least a decade, but they have repeatedly denied any criminal responsibility, as Thaci did again before his interview with the prosecutors began in The Hague on Monday.

Unfortunately, the press release raises more questions than it answers, and lends itself to rampant speculation.

The first question is: under what legal authority was this titanic press release issued? The release itself did not say.

It is helpful in this regard to review the relevant provisions of the Rules of Procedure and Evidence governing proceedings before the Kosovo Specialist Chambers, as well as the Chambers’ Code of Professional Conduct governing how prosecutors must conduct their official business in an ethical manner.

Rule 86 of the Rules of Procedure says: “The Specialist Prosecutor shall file the indictment confidentially [emphasis added]with the Pre-Trial Judge for a decision” on whether to confirm the charges.

Rule 88 provides that the confidential indictment is made public only “upon confirmation by the Pre-Trial Judge.”  However, “the Specialist Prosecutor may disclose an indictment or part thereof to the authorities of a Third State or another entity, if deemed necessary for purposes of an investigation or prosecution”.

So, for example, this provision would seem to cover a situation in which a person named in an indictment is residing or hiding in another country, and that country is officially notified through judicial or diplomatic channels. It would also cover a situation in which the prosecutor contacted an entity such as Interpol for an international arrest warrant.

Noticeably absent from this narrowly-drawn exception is any authority to issue a press release to the general populace before the indictment is confirmed and made public.

Confidential information disclosed

Turning to the Code of Professional Conduct, under Article 11 prosecutors “shall respect, and take all necessary care to protect the confidentiality of information” and “shall not reveal any information classified as confidential.” This, of course, includes indictments.

Moreover, Article 13 says that “Counsel and Prosecutors shall not knowingly: a. make statements on social media, to the press or public, which…disclose confidential information, including about persons involved in the proceedings; or b. publish…any material relating to proceedings before the Specialist Chambers which… discloses any confidential information, including about persons involved in the proceedings.”

And under Article 33, prosecutors “commit misconduct if they knowingly violate or attempt to violate any substantial ethical or professional duty imposed by… this Code”.

With these provisions in mind, it would appear that the press release clearly disclosed confidential information, such as the nature of the criminal charges, but more importantly the identity of two of the people involved in the proceedings, Thaci and Veseli, and their efforts to undermine the court, all before the indictment has been confirmed and made public.

Even if there is a legitimate argument that the press release was duly authorised,  under Article 30 of the Code prosecutors must still “fully respect the presumption of innocence when making public comments or speaking to the media about the merits of particular cases”.

Thaci and Veseli have now been officially identified as people charged with war crimes including heinous murders who are allegedly attempting to undermine the court in order to protect themselves.

It’s one thing to be named as suspects in investigations, as these two men have before. But it is significantly different to be named officially by a prosecutor as persons formally accused of crimes, but before the confirmation of the charges and the disclosure of any evidence. And here, in addition, the prosecutor claims that he can prove the charges beyond a reasonable doubt – the high level of proof required for a criminal conviction.

Even famous and powerful people charged with horrible crimes are entitled to this presumption; it is a bedrock principle of Western criminal jurisprudence. And this is surely one of the reasons why indictments are confidential prior to confirmation by a neutral and independent judge.

And confirming an indictment is hardly automatic. The pre-trial judge may dismiss one or more of the counts, one or more of the defendants, or the entire indictment; or return it to the prosecutor for further investigation.

Indeed, in the Medicus organ-trafficking case in Kosovo, in which I participated as a member of the three-judge trial panel, the pre-trial judge refused to confirm the indictment because of a purportedly illegal police search for evidence. (That decision was subsequently reversed and the case proceeded to trial.)

Amnesty deal rumoured

Even if the Specialist Prosecutor was legally justified, the fundamental questions remain: Why was it “necessary”? Why the suspicious timing? And what did he hope to accomplish by releasing this explosive information?

Perhaps the press release was simply intended to shine a spotlight on these two named defendants to discourage them and their many associates from pursuing the secret plot to repeal the law creating the court or otherwise obstructing its work.

And there many have been great urgency in disseminating this information, the message being: “We know what you and your friends are doing and this is a warning to stop it now.”

But why on June 24? Was the timing intended to alert the Americans of Thaci’s precarious legal status prior to the much-hyped meeting in Washington DC that Thaci and his Serbian counterpart Aleksandar Vucic were scheduled to attend on June 27, just three days later?

The prosecutor might have believed that Thaci would try to negotiate an amnesty deal for himself, a rumour that has been circulating for some time. But this makes no sense.

Article 18 of The Law on Specialist Chambers and Specialist Prosecutor’s Office  signed, ironically, by Kadri Vesili as parliamentary speaker in 2015, says that “any amnesty granted to any person for an international crime… shall not be a bar to prosecution or punishment” by the Specialist Chambers.

Perhaps the prosecutor was concerned that President Donald Trump would publicly praise Thaci and castigate the Kosovo Specialist Chambers.

The meeting had been organised by Richard Grenell, Trump’s special envoy for the Kosovo-Serbia dialogue, in an attempt to get the two sides talking again and hopefully to forge a mutually beneficial deal, particularly about economic issues, thereby paving the way for a more comprehensive agreement to follow.

But Thaci withdrew from the meeting after the news of the indictment broke, even though he was en route. Prime Minister Hoti also withdrew, and Grenell cancelled the meeting which has not yet been rescheduled.

Thus, because of the press release, the prospects for a deal and the resulting thaw in the relationship between Kosovo and Serbia were dashed.

The curious timing caused William Walker, former US ambassador and head of the OSCE Verification Mission in Kosovo, to say in an interview with Kosovo public broadcaster RTK on July 9 that he was “utterly disappointed when the prosecutor issued that statement.

“Now I question the timing of the statement too because President Thaci was travelling to Washington to attend the summit organised by the White House as part of efforts to find a final settlement. The timing of the statement, and the content of the accusations, I think raises questions about the real motive behind it,” Walker added.

But how would this situation have played out if the meeting had taken place? The US, of course, has no authority to overturn the Kosovo law creating the court or issue amnesty to foreign nationals. But President Trump does have a bully pulpit.

Thaci has always been a favourite in Washington, and Trump could have been persuaded to make a strong public statement supporting Thaci and criticising the court, especially if a substantive deal had been struck. This would hardly be unusual since Trump often criticises US courts and judges, and does what he can to support his friends who are in legal jeopardy.

The US is revered in Kosovo, and any damning statement from Trump about the court would likely have the effect of further undermining its legitimacy among citizens of Kosovo who are already sceptical because of its one-sided mandate.

But I wonder if a highly respected and experienced American Specialist Prosecutor, carefully vetted by the US State Department, would have the temerity to become involved in such high-stakes machinations.

In any event, this sudden, dramatic and unorthodox press release deserves clarification in the interests of justice and the rule of law.