When justice replaces concrete evidence with “guilt by association”
By Rafael Floqi
The judgment delivered on September 16 by the Kosovo Specialist Chambers in The Hague dealt a severe blow to the Albanian national conscience. Hashim Thaçi and Jakup Krasniqi were each sentenced to 25 years in prison, Kadri Veseli to 18 years, and Rexhep Selimi to 13 years. All four were found guilty of certain war crimes charges but acquitted of crimes against humanity, which the court concluded had not been proven. The judgment is not final and may be appealed, acording to Associated Press.
This is not the end of the legal process. On the contrary, the decisive battle now begins: determining whether the judgment genuinely established the individual criminal responsibility of each defendant or constructed a fragile bridge from their leadership positions to criminal guilt.
The fundamental question remains the one that should have stood at the center of the proceedings from the first day: Where is the concrete link between each defendant and each crime?
Where Is the Evidence Connecting the Individual to the Crime?
Proving that a killing, unlawful detention, or act of torture occurred during a war does not automatically prove the guilt of a political or military leader. In criminal law, identifying the place, time, victim, and even the physical perpetrator is not enough. It must be proven beyond a reasonable doubt what the person sitting in the dock actually did.
Did he order the crime? Did he plan it? Did he assist the perpetrator? Did he possess direct knowledge of it? Did he exercise effective control over those who committed it? Was he part of an agreement with a proven criminal purpose?
A leadership position is not automatic proof. Knowing suspected perpetrators is not proof. Belonging to the same organization is not proof. Even the existence of a political or military structure does not, by itself, establish the existence of a criminal plan.
According to Reuters’ account, the court linked Thaçi to a joint criminal enterprise and to crimes committed against people perceived as opponents of the KLA. But the legal weight of the judgment cannot be assessed merely by the number of victims mentioned. It must be measured by the quality of the evidence establishing an individual connection between the crimes and each of the four convicted men. Reuters
It is precisely this connection that must be placed under the scrutiny of the Appeals Panel.
From Justice to “Guilt by Association”
The judgment raises serious concerns that the case was constructed with a broader purpose than determining responsibility for specific acts. Instead of beginning with the crime, following the evidence, and arriving at the individual, the process appears to have risked traveling in the opposite direction: from the leader’s name to the KLA’s structure, and from that structure to presumed responsibility.
This is “guilt by association”: he was a leader, so he must have known; he was a member of the General Staff, so he must have controlled every unit; he was a political figure, so he must have approved every action taken in the field.
But criminal law cannot operate on the basis of “must have.” It requires evidence.
The KLA was not a conventional army established over decades, with permanent barracks, bureaucracy, communications systems, and the consolidated chain of command of a state. It emerged under conditions of occupation, repression, and a struggle for survival. Operational zones functioned under extraordinary circumstances, often in isolation and with varying degrees of autonomy.
The existence of leadership titles does not necessarily prove effective control over every person, improvised detention facility, or action carried out in the field. In every instance, the prosecution had to establish the actual chain of command, what information reached each defendant, and what concrete ability he had to order, prevent, or punish particular conduct.
Without those links, the case risks remaining a deliberate legal construction—a pyramid of responsibility built from the top downward rather than from the evidence toward guilt.
Joint Criminal Enterprise Cannot Become a Shortcut
The court relied upon the theory of joint criminal enterprise. This doctrine may lawfully be applied when a common criminal purpose, an individual’s participation and contribution, and the necessary knowledge or intent have been proven.
But the doctrine cannot serve as a net into which prominent names, political positions, and separate events are cast, only to be presented later as one unified criminal plan.
The fact that people knew one another does not prove that they had a criminal agreement. Political cooperation does not prove cooperation in committing crimes. Holding leadership positions does not prove control over every act of every individual who wore the KLA emblem.
The court needed to establish clearly for each convicted man: What was the act? What was his contribution? What was his intent? How was that contribution connected to a specific crime?
The differing sentences—25, 18, and 13 years—indicate that the Trial Panel distinguished among the four individuals. Yet without examining the full judgment, those differences do not tell us whether the concrete links were established through compelling evidence or inferred from broad interpretations of their positions and relationships.
A Trial Judgment Is Not the Final Truth
The judgment is not legally final. The defense has the right to appeal and must challenge not only the length of the sentences but also the foundations upon which criminal responsibility was constructed.
The Appeals Panel must be asked to answer several direct questions:
What evidence connects each convicted man to each specific offense?
How was the existence of a common criminal purpose proven?
Was effective control established, or merely a formal position?
Were contradictory testimonies assessed according to the same standard?
Did the court rely upon circumstantial conclusions permitting more than one reasonable interpretation?
Was the standard of “beyond a reasonable doubt” genuinely respected?
The fact that the defendants were acquitted of crimes against humanity is particularly significant. It demonstrates that the broader allegation of a widespread or systematic attack was not proven to the required standard. That makes careful scrutiny of the reasoning sustaining the war-crimes convictions even more necessary.
The KLA Was Not the Fifth Defendant
Four individuals were tried in The Hague. The KLA was not—and cannot be turned into—the fifth defendant.
The court itself emphasized that the proceedings were not intended to judge the legitimacy of the KLA or Kosovo’s independence. No one, therefore, should be permitted to use this judgment to portray the liberation struggle as a criminal enterprise.
The KLA arose in response to the oppression and violence of a regime that had denied Kosovo its freedom, equality, and right to determine its future. It did not create the conflict. It emerged in a reality in which the Albanian population faced state repression, expulsions, and violence.
Individuals may have committed violations, and every proven offense must be judged individually. But the conduct of an individual cannot be attributed to an entire army, thousands of fighters, the families of the fallen, or the people who supported the struggle for freedom.
A criminal court has no mandate to rewrite Kosovo’s history. It cannot decide whether the KLA’s struggle was just or unjust. It cannot put an entire people on trial, nor can it manufacture a moral equivalence between those seeking liberation and the state apparatus carrying out repression.
Guilt is individual. Innocence is individual as well.
The KLA Cannot Be Tarnished
This judgment may sentence four men at the trial level, but it cannot condemn the ideal of freedom. It may produce pain, anger, and profound doubts about the fairness of the proceedings, but it cannot alter why the KLA was created or what it represented to the people of Kosovo.
The KLA cannot be tarnished by a judgment that remains subject to appeal. The struggle of an entire people cannot be stained because one Trial Panel accepted a particular theory of criminal responsibility. The martyrs, veterans, and families who sacrificed everything for freedom cannot be tarnished.
The response to the judgment must be forceful, but peaceful and democratic. Kosovo must preserve its dignity and its relations with the United States and its European partners, while retaining every right to criticize the judgment sharply and demand genuine justice on appeal.
Justice must proceed from the crime to the evidence, from the evidence to the concrete connection with the individual, and only then to guilt. When it proceeds instead from a person’s name to his position, from position to assumption, and from assumption to punishment, we no longer possess the certainty required by criminal justice. We face the danger of a judgment constructed upon guilt by association.
Four individuals were convicted. The legal process continues.
But the history of the liberation struggle was not adjudicated—and it cannot be imprisoned.
The KLA was not the defendant. The KLA cannot be tarnished.