First war crimes conviction at the KSC: Developing jurisprudence and the right to reparations

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Last December, the Appeals Panel at the Kosovo Specialist Chambers (KSC) delivered its judgment in its first war crimes prosecution. Salih Mustafa, a special unit (BIA) commander in the Kosovo Liberation Army during the Kosovo war had been convicted for the war crimes of murder, torture and arbitrary detention. He is now facing 22 years of imprisonment and 207.000 Euro in war crimes reparations owed to eight victims. This post will highlight three significant aspects of this case: 1. its contributions to developing war crimes jurisprudence, 2. limits on judicial discretion in sentencing, and 3. the unprecedented high individual reparations awards and the establishment of a ‘post-trial judge’ to ensure enforcement of these reparations’ awards. For reasons of transparency, it is highlighted that the author is serving as the Victims Counsel in this case.

  1. Contributions to war crimes jurisprudence

The Appeals Judgment defined – for the first time ever in international(ised) case law – the required standard of causation for murder in a case of possible third-party intervention. In common law countries known as the principle of novus actus interveniens, it was up until now unclear how this would apply to the customary law on the war crime of murder. While it is settled in international criminal law that the required standard of causation is that of a ‘substantial contribution’ for attribution of criminal liability, the appeals decision has now clarified the customary law regarding the question of third-party interventions.

Providing an extensive analysis of the standard of causation in major jurisdictions for such situations across the world, the Appeals Chamber found that “ to have any impact on the chain of causation set in motion by the original conduct, a new supervening event must not be foreseeable, or not form part of the original sphere of risk belonging to the accused and create a wholly new risk that is so potent as to render the original risk insignificant” (Appeal Judgment, para 347). In this specific case, it meant that Mustafa’s liability for murder was confirmed, although – in dubio pro reo – it could not be entirely ruled out that Serbian fire might have contributed to the killing of the victim. This person had previously been arbitrarily detained and tortured by Mustafa and his unit, before being abandoned in the wake of a Serbian offensive, either already dead, or gravely injured and helpless.

Through this judgement, the KSC further solidified its emerging case law on the war crime of arbitrary detention in non-international armed conflict. Previously, jurisdictional challenges in the case against Thaci et. al. had already led to decisions by the Pre-Trial judge and the Appeals Panel that arbitrary detention constitutes a war crime in NIAC (see for discussions here and here). The conviction of Salih Mustafa for the war crime of arbitrary detention in NIAC now confirms this case law.

The conviction is an urgent reminder of how highly relevant legal uncertainties around detention by non-state actors are. According to ICRC estimates, in 2021 over 100 armed groups were holding detainees. From the perspectives of victims, it is laudable that the war crime of arbitrary detention is labelled for what it is and expresses the wrongdoing against them. However, concerns raised in the literature that such prosecutions may disincentivise non-state actors from complying with international humanitarian law (Ventura) have to be taken seriously. Clarifying the rules on detention in non-international armed conflict for non-state actors is therefore a critical task for international law and states (for contributions to this aim see the ICRC’s report and Heffes doctrinal work).

  1. Limits on judicial discretion in sentencing

The Appeals judgment further delineated the limits of judicial discretion in sentencing. Mustafa had initially been convicted to 26 years of imprisonment. This was high compared to sentences passed by other tribunals, specifically by the ICTY addressing historically the same period, and Kosovar domestic decisions. The Appeals Panel had conducted an analysis of such war crimes cases, finding that the “disparity between Mustafa’s sentences and those sentences it has analysed, shows that the Trial Panel has ventured outside of its discretionary bounds by imposing sentences on Mustafa which are out of reasonable proportion with a line of sentences imposed in similar circumstances for similar offences, and thereby committed a discernible error in sentencing.” (Appeal Judgment, para 479)

No sentencing guidelines for international criminal or hybrid tribunals exist. Instead, a trial panel has broad discretion in determining an appropriate sentence, allowing it “to reflect the gravity of the crimes, the extent of the accused’s involvement in the offences and his or her individual circumstances” (Appeal Judgment, para 453). Limiting the scope of judicial discretion through existing practices in international and domestic courts will de facto produce a new referencing framework through practice filling a void where sentencing guidelines are amiss.

Although it is laudable to provide some checks and balances on judicial discretion, the approach taken here raises further questions.  International criminal law is increasingly adjudicated across different jurisdictions, in domestic courts, in variations of hybrid settings as well as internationally. Which practices will contribute to such a referencing framework? For the KSC – technically a court embedded in the Kosovo system – it is obvious to look to the ICTY and Kosovo cases, indeed, article 44(2) of Law on the KSC required consideration of the sentencing range in Kosovo. In how far this approach will be transferrable to other situations remains unclear though. Will this, ultimately be an incentive to revisit the question of sentencing guidelines?

  1. Reparations at the KSC

In this case, victims were awarded reparations in the form of individual financial compensation at levels unprecedented for the harm done to direct victims in international(ised) tribunals. Article 22 of the Law on the KSC implements the right to reparations with the KSC legal framework broadly mirroring that of the ICC. This is why the KSC Trial Panel took guidance from ICC case law (see for ICC discussions here and here) on the principles governing the proceedings contributing to forming a more general approach to reparations. The international law on the right to reparations is taking shape more clearly. The KSC Reparations Order and a recent Appeals Judgment by the Special Criminal Court in the Central African Republic on reparations are important contributions to that end.

Having said that, no clear methodology has emerged in international law on the assessment of the scope of harm done in the context of reparations awards. The KSC proceedings are innovative in breaking new ground in including economic expert calculations of loss of income over the years and changes to a victim’s life plan (Reparations awards, from paras 209ff). This led ultimately to individual awards of up to 80.000 Euros. Overall, a three-pronged approach is emerging that takes account of international case law to date, Kosovo legislation, as well as the individual circumstances of those who have suffered harm. The approach taken may well serve as a model for future hybrid tribunals.

The KSC judges called for a judicial mechanism to oversee the implementation and execution of the reparations order (Reparations Order, paras 250ff) in a creative attempt to fill the gap in the institutional design of the court due to the lack of a Trust Fund. The KSC President recently responded to this through the assignment of a Single Judge, Judge Gilbert Bitti, to implement and oversee enforcement of the reparations awards. This Post-Trial Judge will have the difficult task of overseeing implementation where accessible funds from the convicted person are limited.

Beyond the liability of convicted perpetrators, states are responsible to fill gaps left in the enforcement of reparations to ensure the victims’ right to an effective remedy as required by Articles 6(1) and 13 of the ECHR, Articles 2(3) and 14(1) of the ICCPR, and Article 14 of the CAT (Reparations Order, para 274). Kosovo, which provided 20 million Euros in funds for the defence of the accused before the KSC, has done nothing visible yet to honour their international legal obligations. But the political will must also come from the European Union, which provided the funds to set up the KSC. The legacy of this court would be severely damaged if victims are left without receiving the reparations that they are due.

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Andrea Lorenzo Capussela says

March 24, 2024

Dear Anni Pues,
what you write here is very interesting, and your work as victims’ counsel admirable. Yet what struck me most about your piece is that it implicitly assumes that the court can be taken seriously.

I have some reservations about this, for reasons I first voiced 9 years ago (https://blogstest.lse.ac.uk/lsee/2015/07/02/the-paradoxical-kosovo-special-court-was-a-guarantee-of-political-stability-that-is-why-the-ruling-class-wanted-it/), restated after the court's most famous indictments (https://europeanwesternbalkans.com/2020/11/13/the-kla-indictments-is-this-justice/), and summarised last year in a FT op-ed (https://www.ft.com/content/3f3b1cea-446f-42d8-9b9b-aa0533857e6b).
In short, my criticism is that:

(1) this is an ex-post, ad-hoc court, established after the facts, and on the basis of a detailed report that names the chief suspects (at least formally, moreover, this is a national court, and, as such, it arguably breaches a constitutional rule – via the ECHR, which Kosovo’s constitution refers to – against ‘special' courts);

(2) the court’s rules on the appointment of judges, president, and chief prosecutor , as well as those on the selection of the panels, make the court highly vulnerable to external influence (see, respectively, articles 28.1, 28.2, 28.4, and 30.3; 32 and 33; and 35.7 and 35.9 of the law: https://www.scp-ks.org/sites/default/files/public/05-l-053_a.pdf ); the influence, directly, is that of the EU HR; but indirectly influence can be exercised by the capitals that most influence EU foreign policy.

I hasten to add that I have no evidence or even suspicions that influence has actually been exercised on the court. And I must equally say that, while in the past (1999–2014 at least) western powers showed remarkable tolerance towards Kosovo’s elites, they do not appear to have used their (potential) influence over the court in that same manner (since 2020, at least).

Nonetheless, I think that this court gravely lacks ex-ante credibility, any discussion of its work must take that into account: none of its decisions can be taken at face value, so to speak.
With best wishes.

Elizabeth Santalla Vargas says

March 24, 2024

Thank you very much for you insightful and informative note, Anni. I particularly appreciate the sources and references you provided therein. May I draw your attention to one of my headnotes on the case, for the Oxford Reports on ICL, that may be of your interest:
ICL 2102 (KSC 2021), Specialist Prosecutor v Thaci and ors, Decision on motions challeneging the jurisdiction of the Specialist Chambers, 22 July 2021, available at: https://opil.ouplaw.com/home/ORIL (it can be found by typing ICL 2102 in the search box).
Best regards,
Elizabeth

Elizabeth Santalla Vargas

Anni Pues says

April 2, 2024

Thank you for your interesting comments.

Andrea, I recognise the contentious debate about the KSC's creation; thanks for linking the blog posts.

You point to the nature of the KSC as ex post and ad hoc - these indeed are criteria that describe a number of international or hybrid tribunals, to name just a few: the ECCC, the ICTR, the ICTY (at least in parts). As long as the enforcement of international criminal law cannot rely on a truly universal system, we will probably have to continue to rely on ex post and ad hoc tribunals.

I am sure that challenges on the constitutionality will be an issue to be discussed in the currently pending proceedings on the 'Protection of Legality' in the Mustafa case, which has been filed by the Defence shortly after this blog post was submitted. (see for info here: https://repository.scp-ks.org/details.php?doc_id=091ec6e981275fbd&doc_type=stl_filing&lang=eng)

Elizabeth, I will read your case note with great interest.

Kind regards,
Anni

Andrea Lorenzo Capussela says

April 3, 2024

Dear Anni,
I am grateful for your reply.
I see your point about ad hoc, ex post international courts; as I said, however, this is a national court, governed by a constitution that incorporates ECHR, which, I suppose, forbids such courts.
Assume I am wrong there: an equally big problem would remains, namely the rules on the selection of the court’s president, prosecutor, and judges. In essence, under those rules it’s the EU HR (Borrell) who picks president, prosecutor, and judges; and it’s the president who chooses who is to sit in each panel. These rules gravely expose the court to external influence.
I would even say that it’s it a bit of a stretch to call this institution a ‘court’: in effect, it’s an arm of an executive power (a foreign policy bureaucracy). It may well be a very well-intentioned arm, but it hardly fits the definition of an impartial court.
With best wishes,
Andrea

Elizabeth Santalla Vargas says

April 7, 2024

Dear Anni,

I am glad to hear that you would read my case note. My headnote on the Trial Judgment in Mustafa has been recently published by OUP. It might also be of your interest. It can be found at the same site: https://opil.ouplaw.com/home/ORIL (by typing ICL 2140 at the search box).

I actually have a different view from Andrea. While working on Mustafa Trial Judgment and, various other decisions of the KSC, it was apparent that I was reporting and analyzing the decisions of an international criminal tribunal for various reasons. Namely, the international composition of its actors (judges, prosecutor, staff members, defence, etc). Even though as a Bolivian lawyer and academic working in the field, I could not apply to work at the KSC given its recruitment restrictive policies in terms of nationality. Another aspect resembling its international feautures is its functioning and applicable law. Therefore, in my view, although it has been established indeed as part of Kosovo's legal system, its jurisdiction and functioning or operational features resemble those of international or hybrid criminal tribunals. The ECCC comes to mind as well in terms of a similar structural or organic establishment.

I mention this as I collaterally refer to the international character of the KSC in my commentary on Mustafa Trial Judgment.

It will be good to hear your views on my work, whenever possible.

Best regards,
Elizabeth