Calls for violence ahead of The Hague verdict: do they threaten the defendants’ position?

Just one day before the verdict is due to be announced for Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, public tensions have risen sharply amid protests, warnings of destabilization, calls to “burn” Kosovo and encouragement for the population to take up arms.

But what real weight could these developments carry in the decision-making of the judicial panel in The Hague?

From a legal perspective, the answer is unequivocal: they should have no influence whatsoever on the determination of guilt or innocence.

The verdict must be based exclusively on the materials admitted during the trial: testimony, documentary evidence, the individual responsibility of each defendant, and the final submissions of the Specialist Prosecutor’s Office and the defense.

A gathering organized by an individual, a statement by a former member of the Kosovo Liberation Army or a threat issued by someone entirely outside the judicial process cannot be turned into incriminating evidence against the defendants. That would only be possible if a direct and documented connection to them were established, something that has not emerged from the publicly available information so far.

The verdict has most likely already been finalized

One practical aspect should be kept in mind: a judgment of this volume and complexity is not drafted in the final moments before it is announced.

The document involves the assessment of a broad range of evidence, thousands of pages of documents and complex legal arguments. Consequently, its essential contents must have been finalized and approved by the Trial Panel well before the protests and heated rhetoric of recent days erupted.

Legally, the judges cannot change their finding on guilt based on warnings of protests or threatening statements made outside the courtroom.

Doing otherwise would seriously undermine the principles of a fair trial and individual criminal responsibility.

Peaceful protests are a legitimate right, not a pressure mechanism

The gatherings held in Pristina and the one announced outside the premises of the Specialist Chambers may have a political and media impact, but they have no evidentiary force in court.

Expressing dissatisfaction through peaceful gatherings is a fundamental democratic right. These demonstrations may reflect the deep extent of part of the public’s outrage toward the Specialist Chambers and the recognition of how delicate any effort remains to detach the Kosovo Liberation Army’s war from the context of the aggression and repression of the Serbian regime.

Nevertheless, neither the number of protesters nor the intensity of the public reaction can replace a detailed examination of the evidence. Therefore, these protests provide no basis for acquitting the accused, but neither do they provide grounds for convicting them.

Threats may undermine the public cause

A different situation arises with statements about “burning” the country, escalating the situation or calls to take up arms.

These statements, too, do not become evidence against Thaçi, Veseli, Selimi and Krasniqi. But they can seriously damage the public narrative in favor of an impartial process.

The Specialist Chambers has partly based the continuation of their detention on the risk of obstructing justice and influencing witnesses. In the past, Hysni Gucati and Nasim Haradinaj were convicted precisely for actions aimed at intimidating witnesses and obstructing the administration of justice.

In this environment, threatening statements provide arguments for supporters of the Specialist Chambers to claim that pressure and intimidation remain real problems.

These developments may influence security plans, the way the hearing is organized and, perhaps, future decisions concerning detention. But they cannot legally change the answer to the fundamental question: whether the alleged crimes have been proven beyond a reasonable doubt.

Could these developments affect the sentence?

In theory, the length of the sentence should not be increased because of the conduct of third parties. To worsen a defendant’s legal position, his or her personal involvement must be proven.

The court cannot penalize a person for statements made by his or her supporters. Recent events are more likely to be reflected in the reasoning for keeping them in detention after the verdict is issued than in the content of the verdict itself.

If the court concludes that there is a high risk of unrest after the verdict is announced, obstruction of the appeals process or interference with it, it may be more cautious about releasing them. Here too, however, the arguments must be clearly defined and closely connected to each of the accused.

How might the Trial Panel decide?

Without access to all the confidential evidence and testimony heard behind closed doors, no outside observer can accurately predict the verdict that will be announced.

Nevertheless, given the extraordinary length of the proceedings, the high number of witnesses, the complex nature of the indictment and the substantial differences in the alleged roles of each of the four defendants, the most likely scenario remains a mixed verdict.

This means the court may reject some elements of the prosecution’s case while accepting others. At the same time, the verdict will not necessarily be the same for Thaçi, Veseli, Selimi and Krasniqi.

The prosecution has requested a sentence of 45 years in prison for all four, while the defense has sought full acquittal. These represent the two extremes of the case. The court may reach an intermediate conclusion: acquittals on some charges and convictions on others, or different outcomes for each defendant.

Based on this assessment, a uniform sentence of 45 years for all four appears less likely than a judgment that individualizes criminal responsibility. At the same time, the full acquittal of all four remains possible, but it is not the most certain outcome.

The most realistic projection is that the Trial Panel will substantially narrow the prosecution’s allegations, but may find responsibility for certain specific counts or incidents. After this decision, an appeal by the party left dissatisfied is almost certain.

The verdict is not judging the Kosovo Liberation Army

Whatever the outcome, tomorrow’s decision should be understood as a determination of the personal criminal responsibility of four individuals, not as a verdict on the character of the Kosovo Liberation Army’s war of liberation.

That war was fought against a brutal Serbian apparatus of repression, and the overwhelming majority of the victims and those forcibly displaced were Albanians. No judgment against individuals can overturn this historical truth.

That is precisely why calls for fire and unrest are so damaging. They do not help the defendants, they have no power to change the court’s decision and they may shift the focus of the debate from concrete evidence to concerns about public order.

On Wednesday, the Specialist Chambers will communicate through the official verdict. Peaceful protest remains a democratic right; threats of violence, by contrast, serve only to damage Kosovo and the legitimacy of the demand for a fair trial.

Editorial note: This text is an analysis based on knowledge of judicial procedure, publicly available information and the latest developments. It does not convey inside information from the Court, nor does it offer definitive predictions about the outcome.

Sources: Kosovo Specialist Chambers; Reuters, on the verdict and the prosecution’s request; AP, regarding the protests and the case of the four defendants; United States Embassy, notice concerning the demonstrations