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A Spotlight on Thaci, War Crimes and International Law

Authored by Jurgena Arambalis, edited by Anisa Arra

Hours after resigning from office to face a war crime indictment, Thaci was arrested and detained in The Hague to face prosecution along with co-defendants Jakup Krasniqi, Kadri Veseli and Rexhep Selimi. A special prosecutor has accused them as being ‘criminally responsible’ for 100 murders during Kosovo’s war against Serbia which occurred between 1998-1999. Thaci has pleaded not guilty to the charges laid against him.

In 2011, a report of the Council of Europe enumerated war crimes committed by the Kosovo Liberation Army, a militia group of which Thaci, known by the nom de guerre "Snake", was one of the founders. The war costed more than 10,000 lives and ended after an air campaign by NATO. Subsequently, Thaci joined politics, became the first prime minister of Kosovo in 2008 and president in 2016. NATO's intervention was justified by international law as necessary to protect international security in "a region threatened by the commission of genocidal acts and crimes against humanity". (See, Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict, (2001), 64 Sask. L. Rev. 347-396). In the aftermath of the war, top Serbian military and police officials were later convicted of war crimes in international courts.

Where does the international court of justice derive its power?

The main sources of international law are treaty law, international customary law and general principles of law recognized by civilized nations.

Treaties and conventions are written agreements that nation states willingly sign and ratify and as such bind themselves to follow. Such agreements, which are also called statutes or protocols, govern the mutual relations between nation states. The Vienna Convention of the Law of Treaties (1969) sets out the fundamental legal rules relating to treaties. The basis of treaty law is pacta sunt servanda, which means that agreements must be honoured and adhered to.

Many states are involved in the process of drafting a treaty, which often includes stark disagreement on the scope and content of the agreement. In order to increase the number of signatories and ratifications of a treaty, and hence global order, international law allows for states to limit the full application of a treaty or clarify their specific understanding of the legal content. This is done through (unilateral) reservations, declarations and derogations. Only specified reservations are permitted, and they cannot undermine the object and purpose of the treaty. Declarations, unlike reservations, do not affect legal obligations, but are often made when a state expresses its consent to be bound by a specific treaty. The state uses the declaration to explain or clarify its understanding of particular aspects of the treaty text. Derogations allow a state party to a treaty to temporally suspend or limit their legal obligations in exceptional circumstances, for example the freedom of assembly may be limited during times of armed conflict. However, some rights can never be derogated from under any circumstances, such as the prohibition on torture and inhumane and degrading treatment. It is important to note that international humanitarian law (IHL) does not have a system of derogations, as it is a body of law specifically designed to provide minimum protection during armed conflict.

Customary international law, or jus cogens, is made up of rules that derive from “a general practice accepted as law”. (See, The Quest for Justice for Victims of Terrorism: International Law and The Immunity of States in Canada and the United States, (2018) 69 UNBLJ 251 - 304). Customary international law is comprised of all the written or unwritten rules that form part of the general international concept of justice. Unlike treaty law, which only applies to those states that are parties to the particular agreement, customary law is binding upon all states, regardless of whether they have ratified a treaty. Unlike treaty law, customary international law is not codified in a clear and accessible format and the content of the rules is generally less specific than what you may find in a treaty. Customary international law is of fundamental importance in armed conflict due to the limited protections afforded to internal conflicts by treaty law and the lack of ratification of key treaties. Customary international law exists independently from treaty law and in 2006 the Independent Commission of the Red Cross published a collection of the rules of IHL considered to be customary in nature. The Commission identified 161 rules of customary international law. Customary international law is formed when there is sufficient uniformity of practice among states coupled with their opinio juris, which is evidence that the state believes that the law obliges (or, perhaps, does not prohibit) the act or omission of the state in question. (See, North Sea Continental Shelf (Germany v Denmark and the Netherlands), [1969] ICJ Rep 3).

Holding individuals responsible for serious violations of international humanitarian law was once a very controversial proposition. Individual criminal responsibility is now firmly established at the international and domestic levels to enforce international humanitarian law obligations. (See, Searching for Law While Seeking Justice: The Difficulties of Enforcing International Humanitarian Law in International Criminal Trials, (2007-2008) 39 Ottawa L. Rev. 367-403). But, is the tribunal well equipped to achieve fairness for the accused, in this case Thaci, as a matter of simple justice?