What Criminalizes Armed Liberation Movements?
A Verdict Beyond The Courtroom
“No, the KLA was not a terrorist organization,” responded the measured Ibrahim Rugova when confronted by Slobodan Milošević in front of the International Criminal Tribunal for the former Yugoslavia (ICTY). Today, more than two decades later, the question finds relevance in a different courtroom in The Hague: when members of an armed liberation movement are convicted of war crimes, what exactly is criminalized – their individual acts or the movement they fought for?
On September 16, Hashim Thaçi, Jakup Krasniqi, Kadri Veseli, and Rexhep Selimi, four prominent leaders during and after the Kosovo War, were convicted of War Crimes by the Kosovo Specialist Chambers (KSC). The trial panel held them criminally responsible on counts of arbitrary detention, cruel treatment, torture, and murder against hundreds of individuals, including Kosovo Serbs, Roma, and, in particular, Kosovo Albanians. Although not the whole, the core of the court’s reasoning was that these four individuals purposefully targeted political opponents during the war. And as the panel noted, many of these victims were falsely accused and “generally without basis,” as Serbian collaborators or spies.
The verdict was unsurprisingly met with profound anger in Kosovo. Demonstrations ensued in Prishtina, with many perceiving the decision as a painful confrontation with the foreign prosecution of the organization that had come to symbolize Kosovo’s liberation.
The reaction, however, reveals why the precise boundaries of the judgment matter so deeply and why they are more significant than what headlines might suggest. Notably, the panel acquitted all four defendants of Crimes Against Humanity, emphasizing that prosecution failed to prove beyond a reasonable doubt that the crimes were directed against an identifiable civilian population as such. Rather, the court noted that victims were chosen on individualized grounds. And, despite the court’s abundant use of neutral language, it is self-evident that “an identifiable civilian population” would most likely imply Kosovo Serbs.
Yet, despite this important qualification, the court’s careful formulation left an important historical question hanging over its verdict: at what point does the prosecution of crimes committed within an armed liberation movement risk being seen as the criminalization of the movement itself?
The court, of course, anticipated this concern. In its judgment, Judge Charles L. Smith III writes that the case is not prejudicial against the legitimacy of the Kosovo Liberation Army and its “goal of an independent Kosovo.” On the contrary, the panel stipulated that the case narrows down to the exclusive concern of whether “crimes alleged in the indictment were committed and whether the accused are criminally responsible for them.”
As a matter of criminal law, this distinction is both necessary and correct – the criminal responsibility of senior commanders and leaders does not automatically become the responsibility of each and every soldier, unit, and institution operating under their authority. Importantly, evidence of a command structure does not transform the movement’s cause into a criminal enterprise.
Yet, a legal judgment does not exist in a historical vacuum, and the KSC cannot be solely understood outside the totality of the circumstances of its own creation. The court did not emerge through a process of national demand for accountability and judicial reform. Rather, it arose as an amalgamation and collision between international demands for accountability and the fragile sovereignty of the Republic of Kosovo.
Any account of the court must start with the war that preceded it.
Around 10,800 ethnic Albanians were killed during the war, 90% of the Kosovar Albanian population was forcefully displaced, thousands of homes destroyed, and more than three thousand women were raped, with forced impregnations as a particular weapon of war by the Serbian forces. Through a century-long mythmaking, demographic engineering, and a religious-backed nationalist agenda, Serbian authorities temporarily succeeded in expelling Albanians from Kosovo to stake a claim on the entire territory.
Within this broader historical context, the KLA emerged. Following the Dayton Accords’ failure to address the Kosovo crisis, public support began to shift away from Rugova’s advocacy of peaceful resistance, largely based on making appeals to the international community. Beginning in 1996, amid the state-led violence and apartheid, many Albanians increasingly viewed the KLA and its strategy of armed resistance as the only means of ending Serbian repression and securing independence.
Almost two decades later, Dick Marty, a Member of the Parliamentary Assembly of the Council of Europe and a former Swiss prosecutor, issued a report that alleged organ trafficking operations in KLA-controlled prisons. The allegation rested on thin, largely uncorroborated evidence – EULEX and further international investigations had failed to find proof of such allegations. Yet, Marty’s report was adopted as a Council of Europe resolution. Within the next five years, through intense pressure by the US and the EU, and a process marred by a lack of transparency and substantive legislative debate, the resolution led to the Republic of Kosovo amending its Constitution for the creation of the Kosovo Specialist Chambers.
At the time, opponents of the court, including the current Prime Minister of Kosovo, argued that its creation would cement a worldview of criminalizing liberation wars of oppressed populations. The September verdict seems to have done exactly that.
Courts do not merely exist to produce convictions – they can also shape how societies remember the past. And this is precisely where the KSC faces an unusual legitimacy problem. Sitting thousands of miles away from Kosovo, before judges and prosecutors who are not products of the country’s judicial system, a tribunal adjudicating on the legacy of a liberation war will inevitably turn distance into its political identity.
There is also a deeper issue with its inception: the Chambers were established to investigate and prosecute only crimes arising from the 2010 Marty Report. Their jurisdiction, thus, is tied to crimes predominantly alleged to have been committed by Kosovo Albanians and an organization that emerged as an existential necessity against state-sponsored violence and a brewing genocide.
Meanwhile, accountability for crimes committed by Serbian forces has largely remained within Serbian courts and the long “completed” work of the ICTY. The disparity is not imaginary, but deeply concerning: according to Human Rights Watch, Serbian courts have convicted only 17 individuals in regard to Kosovo war-related crimes, leaving the vast majority of crimes without accountability.
While this does not directly establish that the KSC’s scope is purely based on the prosecution of only one ethnic group, its architecture raises a profound historical problem on the encounter between law and a liberation movement. A liberation movement is simultaneously a political project, a military organization, and a collective of people capable of both sacrifice and wrongdoing. On its part, international criminal law can isolate wrongdoings, but it cannot easily capture the moral imperative of the cause from which those individuals emerged.
This is where the distinction between criminal and historical responsibility matters. International criminal law was deliberately built to reject the idea that political ends excuse political means, while also emphasizing that it can only convict individuals, not ideas, a people, or a historical cause. But once that boundary between individual and collective responsibility is blurred, a court verdict begins to take on a meaning beyond what the law can establish.
The September verdict makes this paradox sharper because the court’s refusal to delve deeply into the broader historical question does not make the question disappear – instead, it causes the judgment to occupy the space where a historical explanation might otherwise have been. The court did say that it is not convicting the KLA, but the absence of a substantial historical inquiry risks leaving the criminal narrative as the dominant account of the movement and its liberation war.
This verdict will outlast the four men convicted, regardless of the conclusion the Appeals come to. Belgrade will intensify its use of the verdict to cast Kosovo’s fight as a criminal enterprise as a whole – and the danger goes beyond disinformation and state-led propaganda. This judgment is felt in a nation whose struggle for international recognition is still unfinished – instead of providing justice through retribution to the victims of Serbia’s crimes against humanity, the burden of history falls on the very people who paid the human cost to obtain their freedom.
Our argument is not that the Court should turn a blind eye to crimes because they occur within a liberation struggle. On the contrary: the point of criminal responsibility is precisely that political objectives cannot place individuals outside the reach of law. But if international criminal law isolates unlawful conduct from the historical context in which the war emerged, it risks producing a peculiar form of historical reductionism. This, in turn, brings the verdict into the foreground of the war, while leaving the struggle in its periphery. The resulting problem is that what the court deemed legally necessary for its conviction can therefore become a description of the war itself in public memory.
Appeal
What comes next is an appeal. The defense and the prosecution have 30 days from receiving the written verdict to file a notice of appeal, on one of three grounds: an error of law, an error of fact that caused a miscarriage of justice, or an error in sentencing.
The appeal may well change this case. The judges could find errors in the trial panel’s reasoning, reduce the sentences, or overturn convictions. They could also go the other way and reverse the acquittal on crimes against humanity. But any correction will take years and will not travel as far as the original verdict. The headlines of September 16 have already set a narrative for the whole world, an appellate ruling will only be a footnote to that.
Authors:
Artea Brahaj
Erta Hoxha
Bekim Bruka
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