Outcome of trial may depend on whether James Rubin’s testimony – that Thaci was just a ‘front man’ for the KLA – is deemed credible.
On Monday, September 17, a rhetorical thunderclap shook the trial of Hashim Thaci and three co-defendants at the Kosovo Special Court in The Hague, KSC, as the defence presented its first witness, James Rubin, a former US Assistant Secretary of State from 1997 to 2000.
It was finally time for the defence to present its case, following two full years of prosecution evidence, from April 2023 to April 2025, and after nearly five years of detention for each of the four defendants, since early November 2020.
This came on the heels of massive demonstrations in Pristina on August 7, and outside the courthouse in The Hague on September 14, where protesters voiced strong support for the defendants as freedom fighters and liberators, not war criminals, and made clear their vehement opposition to the KSC. All of which created an aura of tension surrounding the trial proceedings.
The defence’s strategy will be to undermine the theory of the Special Prosecution Office, SPO, which includes the following:
The KLA was well-structured and hierarchical;
The defendants were at the highest level of the structure, with command responsibility;
They engaged in a joint criminal enterprise among themselves and others to control Kosovo though fear, intimidation, and the commission of heinous crimes against Serbians, Albanian opponents, and various minority groups throughout Kosovo and northern Albania, from March 1998 through September 1999;
These crimes constituted war crimes and crimes against humanity, including cruel treatment, illegal arrest and detention, enforced disappearances, torture, and murder of about 100 persons.
The SPO, during its two-year evidentiary presentation, called 125 witnesses, many of whom were protected and did not testify publicly, to prove the occurrence of these crimes and the defendants’ responsibility. The court also received hundreds of exhibits and thousands of pages of documents, including documents from Serbia. There were also 155 victims named as participants in the proceedings.
James Rubin was called as a witness for Hashim Thaci, and his testimony which lasted three days directly challenged the lynchpins of the prosecution’s case.
He came to know Thaci personally when he was the chief assistant to Secretary of State Madeline Albright at the Rambouillet peace conference in early 1999. At the time, the US knew very little about the KLA, which had been viewed previously as a terrorist organization.
Rubin and Thaci, who was head of the Albanian delegation, were about the same young age, and the two men developed a productive relationship, as Rubin probed him about the structure of the KLA and Thaci’s role within it.
He determined that Thaci was a “front man” for a diffuse KLA, which was organized haphazardly from the ground up, and that Thaci had no organizational or decision-making authority; decisions were dictated by commanders in the field, and Thaci acted only upon their decisions and instructions.
Immediately after the collapse of the peace process, due to the Serbian delegation’s intransigence, NATO commenced its 78-day bombing campaign in March 1999, resulting in the defeat of Slobodan Milosevic and his bloodthirsty Serbian forces in June 1999. US president Bill Clinton and Madeline Albright were the primary architects of this campaign.
Albright then tasked Rubin with helping to negotiate the demilitarization of the KLA, which proved successful. During this period, he again worked closely with Thaci and came into contact with the military commanders in the field, all of whom were much older than Thaci. Rubin determined again that Thaci had no command responsibility, or even the knowledge or capability required for such responsibility.
And as Rubin reviewed all the news reports and intelligence reports from the field on a daily basis, he was never aware of any crimes being committed by the KLA, as described in the indictment.
Such allegations were carefully reviewed by lawyers, intelligence officers, the war crimes unit and others, but were never substantiated. Rubin decided that the Kosovars were “on the side of the angels” in fighting for their liberation while being slaughtered by the Serbians.
Rubin was also highly critical of the KSC for keeping Thaci in detention, even though, upon learning of the indictment, Thaci had turned around on his way to a meeting with US President Trump at the White House. He later resigned as president, and voluntarily turned himself in to the court.
Following Rubin’s testimony for the defence, he was subject to vigorous cross-examination by the prosecutor who challenged his recollections and credibility by, among other things, referring to news reports in 1998 and 1999 about KLA atrocities, which Rubin may not have been aware of, or had forgotten. This called into question Rubin’s statement about the KLA being on the side of the angels.
Regardless, his claims on Thaci’s behalf reverberated favourably among networks of KLA veterans, while generating extensive media publicity in Kosovo and Western Europe.
Rubin and Thaci maintained their relationship after the war, and last met in 2020, before Thaci was ordered into detention. From 2018 to 2020, while Thaci was president of Kosovo, Rubin worked for a Washington lobbying firm that had a contract with the Kosovo’s president’s office to try to improve relations with Serbia.
The defence plans to present more witnesses, and will have until early November to complete its case. Following Rubin, a second defence witness was called, Paul Williams, who also testified to the lack of a well-structured and organized KLA, echoing Rubin in this regard.
Rubin has since been interviewed by the Kosovo media and has maintained his strong position about Thaci’s innocence. He said that the charges against him are “absolutely” false because there was no vertical chain of command, and that a guilty determination would amount to collective blame for the Albanians (in their war of liberation). He hopes to have the occasion to shake hands with Thaci when he is released from prison.
Upon completion of the defence, the three-judge panel will have three months to render its decision on each of the charges for each of the defendants.
The presiding judge, Charles Smith II, from the US state of Iowa, is well respected and experienced, having served as the chief judge with the European Union Rule of Law Mission in Kosovo, EULEX, for several years before his appointment to the KSC.
I worked closely with Judge Smith, when I was also a judge with EULEX, and have complete confidence in his judicial abilities. He is unlikely to be swayed by the harsh political considerations surrounding the case and the court.
Nevertheless, I’m sure the pressure will be felt. In this regard, I can speak from my own experience in Kosovo, having been a member of numerous three-judge panels adjudicating serious cases, including the war crimes case against Fatmir Limaj and nine other KLA veterans.
The courtroom was always packed with the defendants’ supporters and patrolled by an armed SWAT team. And the streets outside were swarming with supporters and armed police officers. The tension was palpable, and the pressure was difficult to ignore.
The judges here will have to review all the evidence on both sides to determine the facts and applicable law as to the structure of the KLA and the defendants’ roles within it, and ultimately decide whether the SPO has proved some or all of its charges beyond a reasonable doubt.
Proof beyond a reasonable doubt is the highest standard in the criminal justice system. If there is a reasonable doubt as to any of the charges, then the prosecution has not met its high burden, requiring an acquittal of that charge.
In determining the facts, an important consideration is the credibility of the witnesses. Should their testimony, or any part of it, be believed or not? This determination includes many factors, as demonstrated by the testimony of James Rubin.
What factors might the judges consider?
Did Rubin’s experience as a US diplomat at the highest level give him the presumption of credibility?
Did the US State Department’s agreement to allow him to testify lend credibility?
Did he have the opportunity to interact with Thaci in such a way as to draw an accurate opinion about the structure of the KLA and Thaci’s position within it?
Did he exhibit reliable memory after all these years later?
Was his testimony consistent or inconsistent with other reliable evidence in the case?
Was his demeanour on the witness stand consistent with truth telling?
Did he have any biases that could affect the reliability of his testimony?
Of course, in making a credibility determination, the judges will have to consider both direct examination and cross examination.
The court’s verdict, whatever it may be, will have significant ramifications well beyond the legalities of the case. If Thaci and the others are found guilty of some or all of the charges, this will create havoc in Kosovo, as their fight for freedom will be labelled a joint criminal enterprise. This outcome will hardly create “reconciliation” within Kosovo society, which was one of the key reasons for creating the KSC.
A guilty verdict will also play directly into the hands of Serbian officials who would be delighted to deflect responsibility for the numerous atrocities committed by Serbian forces to the KLA’s joint criminal enterprise.
Acquittals, on the other hand, will be received joyously in Kosovo, but will call into question the creation of the KSC, which presently employs about 280 international support staff and has had budgets totalling hundreds of millions of euros.
But regardless of the verdict, it is virtually certain that there will be an appeal by either the SPO or the defence, or both, so the case is likely to continue for the indefinite future.