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In: KSC-BC-2020-06 the Prosecutor V. Hashim Thaҫi, Kadri Veseli

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In: KSC-BC-2020-06 the Prosecutor V. Hashim Thaҫi, Kadri Veseli KSC-BC-2020-06/F00412/1 of 98 PUBLIC 22/07/2021 20:03:00 In: KSC-BC-2020-06 The Prosecutor v. Hashim Thaҫi, Kadri Veseli, Rexhep Selimi, and Jakup Krasniqi Before: Pre-Trial Judge Judge Nicolas Guillou Registrar: Dr Fidelma Donlon Date: 22 July 2021 Language: English Classification: Public Decision on Motions Challenging the Jurisdiction of the Specialist Chambers Specialist Prosecutor Counsel for Hashim Thaҫi Jack Smith Gregory Kehoe Counsel for Victims Counsel for Kadri Veseli Simon Laws Ben Emmerson Counsel for Rexhep Selimi David Young Counsel for Jakup Krasniqi Venkateswari Alagendra KSC-BC-2020-06/F00412/2 of 98 PUBLIC 22/07/2021 20:03:00 TABLE OF CONTENTS I. PROCEDURAL BACKGROUND ........................................................................ 2 II. SUBMISSIONS OF THE PARTIES ...................................................................... 6 The Applicability of Customary International Law .......................................... 6 The Council of Europe Report ........................................................................... 11 Arbitrary Detention ............................................................................................. 18 Enforced Disappearance of Persons .................................................................. 20 Joint Criminal Enterprise .................................................................................... 22 Superior Responsibility ....................................................................................... 30 III. APPLICABLE LAW ............................................................................................. 32 The Applicability of Customary International Law ........................................ 32 The Council of Europe Report ........................................................................... 33 Arbitrary Detention ............................................................................................. 34 Enforced Disappearance of Persons .................................................................. 34 Joint Criminal Enterprise .................................................................................... 35 Superior Responsibility ....................................................................................... 35 IV. DISCUSSION ........................................................................................................ 35 The Applicability of Customary International Law ........................................ 35 The Council of Europe Report ........................................................................... 44 The Subject Matter Jurisdiction .......................................................................... 59 The Modes of Liability ........................................................................................ 76 V. DISPOSITION ....................................................................................................... 97 KSC-BC-2020-06 1 22 July 2021 KSC-BC-2020-06/F00412/3 of 98 PUBLIC 22/07/2021 20:03:00 THE PRE-TRIAL JUDGE,1 pursuant to Articles 22, 33(1) and 162(1) of the Constitution of Kosovo (“Constitution”), Articles 1(2), 3(2), 6-9, 12, 13(1)(i), 14(1)(c), 16, 39(1) and (13) of the Law on Specialist Chambers and Specialist Prosecutor’s Office (˝Law˝) and Rule 97 of the Rules of Procedure and Evidence Before the Kosovo Specialist Chambers (˝Rules˝), hereby renders this decision. I. PROCEDURAL BACKGROUND 1. On 26 October 2020, the Pre-Trial Judge confirmed the indictment (“Confirmation Decision” and “Indictment”) against Hashim Thaçi (“Mr Thaçi”), Kadri Veseli (“Mr Veseli”), Rexhep Selimi (“Mr Selimi”) and Jakup Krasniqi (“Mr Krasniqi”) (collectively “Accused”).2 2. On 4 and 5 November 2020, upon order of the Pre-Trial Judge,3 the Accused were arrested4 and transferred to the detention facilities of the Specialist Chambers (“SC”) in the Hague, the Netherlands.5 1 KSC-BC-2020-06, F00001, President, Decision Assigning a Pre-Trial Judge, 23 April 2020, public. 2 KSC-BC-2020-06, F00026/CONF/RED, Pre-Trial Judge, Confidential Redacted Version of Decision on the Confirmation of the Indictment Against Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, 26 October 2020, confidential. A public redacted version was filed on 30 November 2020, F00026/RED. KSC-BC-2020-06, F00034, Specialist Prosecutor, Submission of Confirmed Indictment and Related Requests, 30 October 2020, confidential, with Annex 1, strictly confidential and ex parte, and Annexes 2-3, confidential. On 4 November 2020, a further corrected confirmed indictment, was submitted, F00045/A01, F00045/A02, F00045/A03. 3 KSC-BC-2020-06, F00027, Pre-Trial Judge, Public Redacted Version of Decision on Request for Arrest Warrants and Transfer Orders, 26 October 2020, confidential, with Annexes 1-8, strictly confidential and ex parte. Corrected versions of Annexes 7 and 8 were filed on 28 October 2020, F00027/A07/COR and F00027/A08/COR. Public redacted versions of the annexes (F00027/A01/RED, F00027/A02/RED, F00027/A03/RED, F00027/A04/RED, F00027/A05/RED, F00027/A06/RED, F00027/A07/COR/RED, F00027/A08/COR/RED) and the decision (F00027/RED) were filed on 5 November 2020 and 26 November 2020, respectively. 4 KSC-BC-2020-06, F00044, Registrar, Notification of Arrest of Jakup Krasniqi Pursuant to Rule 55(4), 4 November 2020, public; F00049, Registrar, Notification of Arrest of Rexhep Selimi Pursuant to Rule 55(4), 5 November 2020, public; F00050, Registrar, Notification of Arrest of Kadri Veseli Pursuant to Rule 55(4), 5 November 2020, public; F00051, Registrar, Notification of Arrest of Hashim Thaçi Pursuant to Rule 55(4), 5 November 2020, public. 5 KSC-BC-2020-06, F00048, Registrar, Notification of Reception of Jakup Krasniqi in the Detention Facilities of the Specialist Chambers, 4 November 2020, public, with Annex 1, public; F00053, Registrar, Notification of KSC-BC-2020-06 2 22 July 2021 KSC-BC-2020-06/F00412/4 of 98 PUBLIC 22/07/2021 20:03:00 3. On 10 February 2021, the Defence for Mr Selimi (“Selimi Defence”) filed a preliminary motion challenging the jurisdiction of the SC in relation to Joint Criminal Enterprise (“JCE”) (“Selimi Jurisdiction Motion (JCE)”).6 4. On 12 March 2021, the Defence for Mr Thaçi (“Thaçi Defence”) filed a preliminary motion challenging the jurisdiction of the SC in relation to, inter alia, JCE and the charges against Mr Thaçi on the basis that these charges exceed the Report on Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo, Doc. 12462, 7 January 2011 by the Parliamentary Assembly of the Council of Europe (“Council of Europe Report” or “Report”) (“Thaçi Jurisdiction Motion”).7 5. On 15 March 2021, the Selimi Defence filed a preliminary motion challenging the jurisdiction of the SC in relation to the structure and composition of the employed personnel (“Selimi Jurisdiction Motion (Discrimination)”), in which it further supports various arguments in relation to the Council of Europe Report contained in the Thaçi Jurisdiction Motion.8 6. On 15 March 2021, the Defence for Mr Krasniqi (“Krasniqi Defence”) filed a preliminary motion challenging the jurisdiction of the SC in relation to JCE and certain of the crimes charged on the basis that these crimes do not relate to the Council of Europe Report (“Krasniqi Jurisdiction Motion”).9 The Krasniqi Defence further adopts the challenges to the jurisdiction of the SC submitted by the Thaçi Defence, Reception of Hashim Thaçi in the Detention Facilities of the Specialist Chambers and Appointment of Counsel, 5 November 2020, public, with Annex 1, public, and Annex 2, confidential; F00054, Registrar, Notification of Reception of Kadri Veseli in the Detention Facilities of the Specialist Chambers and Appointment of Counsel, 5 November 2020, public, with Annex 1, public, and Annex 2, confidential; F00055, Registrar, Notification of Reception of Rexhep Selimi in the Detention Facilities of the Specialist Chambers, 5 November 2020, public, with Annex 1, public. 6 KSC-BC-2020-06, F00198, Selimi Defence, Selimi Defence Challenge to Jurisdiction – Joint Criminal Enterprise, 10 February 2021, public. 7 KSC-BC-2020-06, F00216, Thaçi Defence, Preliminary Motion to Dismiss the Indictment due to Lack of Jurisdiction, 12 March 2021, public. 8 KSC-BC-2020-06, F00219, Selimi Defence, Preliminary Motion to Dismiss the Indictment due to Lack of Jurisdiction – Discrimination, 15 March 2021, public, para. 4. 9 KSC-BC-2020-06, F00220, Krasniqi Defence, Krasniqi Defence Preliminary Motion on Jurisdiction with Public Annex 1, 15 March 2021, public. KSC-BC-2020-06 3 22 July 2021 KSC-BC-2020-06/F00412/5 of 98 PUBLIC 22/07/2021 20:03:00 Selimi Defence and Veseli Defence, insofar as these challenges are not inconsistent with the Krasniqi Jurisdiction Motion.10 7. On 15 March 2021, the Defence for Mr Veseli (“Veseli Defence”) filed a preliminary motion challenging the jurisdiction of the SC in relation to customary international law, JCE, superior responsibility, arbitrary arrest and detention, and enforced disappearance (“Veseli Jurisdiction Motion”).11 The Veseli Defence also adopts the submissions of the Thaçi Defence to the extent that these submissions are not inconsistent with the Veseli Jurisdiction Motion.12 8. On 23 April 2021, further to the time limit set by the Pre-Trial Judge,13 the Specialist Prosecutor’s Office (“SPO”) responded, inter alia, to the preliminary motions challenging the jurisdiction of the SC in relation to: (i) the Council of Europe Report (“SPO CoE Response”);14 (ii) customary
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