Kosovo’s Specialist Chambers: Challenges of the World’s Newest War Crimes Court

Last spring, after what seemed like endless debates and stalling, Kosovo’s parliament finally enacted a law to establish the Special Court, or Special Chambers, to try crimes committed by members of the KLA (Kosovo Liberation Army) during the 1998/1999 war in Kosovo. I am a firm believer in international criminal justice and the importance of trying all those responsible of serious crimes, including those on the ‘right’ side of conflict. However, many things about the new Special Court and the surrounding context make me question how fair and effective the Court will be in holding KLA member accountable for crimes committed, including historic issues of witness protection and credibility as well as certain articles in Court’s founding legislation. Below I have attempted to explain the creation and mandate of the world’s newest war crimes court, and to highlight some of the major challenges the Special Court will face.

Council of Europe Report

The creation of the Kosovo Special Court has its roots in a report written by Dick Marty, a Rapporteur for the Council of Europe (CoE). The report accused the KLA leadership, including current Foreign Minister (former Prime Minister and recently elected by parliament to be the next President) Hashim Thaçi, of numerous crimes ‘both against Serbs who had stayed in the region and against Kosovar Albanians suspected of having been “traitors” or “collaborators”’, including inhuman treatment of civilians and prisoners of war, and killing of prisoners for the purposes of illicit trafficking of human organs. According to Dick Marty, the alleged crimes had never been the subject of any serious investigation.

In January 2011 the report was adopted by the Council of Europe Assembly, who called for a full a serious investigation into the alleged crimes and asked that EULEX (the EU Rule of Law Mission in Kosovo) be given a clear mandate, the resources, and political support necessary to carry out the investigation. The Assembly also emphasized the need for strong witness protection programs and called on Albanian and Kosovo officials to cooperate with the investigation.

Creation of the Special Court

In the spring of 2011, EULEX decided to set up a Special Investigative Task Force (STIF) to further the investigation of the allegations contained in the CoE report. The mandate of the STIF was to investigate and, if warranted, prosecute individuals for crimes alleged in the report. In addition to the allegations of organ harvesting, these crimes consist of unlawful detention, deportation, inhumane acts, torture and killings, as well as any other crimes, related to the allegations contained in the report.

In July 2014 the STIF published the findings of its three-year investigation. Its lead prosecutor said there was enough evidence to indict high-level perpetrators who were considered responsible for an organized campaign of abductions, illegal detentions, unlawful killings, and sexual violence, primarily against minority groups – Serbs, Roma, and others – but also against Kosovo Albanians. 

The EU and US then urged the Kosovo government to ensure that the necessary constitutional amendments and laws were passed to create a Special Court to deal with the prosecution of the crimes alleged in the CoE report.

It was argued that a separate court was necessary because Kosovo’s own judiciary would be unwilling or unable to prosecute high-ranking members of the KLA, some who most certainly are in the current government or members of parliament. Furthermore, EULEX was also considered to lack the capacity to deal with these prosecutions, given problems in the past that prevented the prosecution of alleged crimes committed both during and after the Kosovo war.  (EULEX inherited 1200 cases from UNMIK and there are still around 300 cases pending with the War Crimes Investigative Unit. Also, its mandate is supposed to end in June 2016.)

After much debate in Kosovo the parliament voted against the creation of he Special Court in July 2015. However, after more pressure, both from Prime Minster Isa Mustafa and from the international community, including the threat that the UN Security Council could set up its own court to try the former KLA members, the Law on Specialist Chambers and Specialist Prosecutor’s Office (Law on the Special Court) was passed in August.

Jurisdiction and Function of the Special Court

According the Law of the Special Court, specialist chambers will be attached to each level of the court system in Kosovo, but ‘shall be independent in the exercise of their functions’ (Article 3). The Court will therefore be independent from Kosovo’s judiciary while still remaining part of the country’s justice system (Article 3). The Court ‘shall also have primacy over all other courts in Kosovo’ for crimes within its jurisdiction (Article 10).

The Special Court will have jurisdiction over crimes that occurred between 1 January 1998 and 31 December 2000 (Article 7) and were either committed or commenced in Kosovo (Article 7-8). This means that the Court will also be able to prosecute crimes committed in Albania, where many people were held prisoner by the and many KLA camps were situated.

The Court will have subject matter jurisdiction over crimes against humanity (acts committed knowingly as part of a widespread or systemic attack directed against a civilian population), war crimes (serious breaches of the Geneva Conventions and violations of the laws and customs applicable in armed conflict, when committed as part of a plan or on a large scale), as well as crimes under the criminal codes in force in Kosovo at the time the crimes were committed (Articles 12-15). These will include for example the Criminal Code of the Socialist Federal Republic of Yugoslavia (1976), the Criminal Law of the Socialist Autonomous Province of Kosovo (1977) (Article 15).

The Law on the Special Court, like statutes of other international criminal courts and tribunals, also rejects the idea of immunity for individuals holding an official position, including Head of State or Government (Article 16). Furthermore, in Article 18, the Law specifies that amnesties granted under Art. 65(15) of the Constitution of Kosovo shall not be a bar to prosecution or punishment for crimes under the Court’s jurisdiction; neither shall amnesties for international crimes, crimes resulting in grievous bodily injury or death, or a crime under Article 15(2) of the Law.

The Special Court will be staffed by international judges (Article 26) and will have a budget separate to that of the state budget (Article 63). It is however is expected to be paid by the EU. Furthermore, the Court shall have a seat in Kosovo, but also in a Host State outside the country (Article 3(6)). The Special Prosecutor’s Office will be seated in the Host State (Article 3(7)).

On 29 February 2016, Kosovo’s President Atifete Jahjaga announced that she had signed an agreement with the Netherlands to be the Host State for the new court.

Challenges

When the Law on the Special Court was passed in August 2015, it was expected that the Court would be operational and ready to take on its first case during the first half of 2016. However, even if this does happen there are a number of challenges that will make the work of the Court difficult, and might seriously hamper the justice process.

(i) Public Outcry and Cooperation

The establishment of the Court has proven deeply controversial in Kosovo, with critics arguing that it is an insult to the KLA’s war for liberation from oppressive Serbian rule.

When the CoE report was published Kosovo politicians reacted strongly. The acting president at the time, Jakup Krasniqi (who was the spokesperson for the KLA during the war), said the report was racist towards Albanians. Hashim Thaçi said the accusations made against him were baseless, claiming the report was filled with defamation and lies and was simply recycling propaganda from people who were not friends of Kosovo. Former Prime Minister and KLA commander, Ramush Haradinaj, was among who opposed the court during the vote in parliament. "By approving this court we are turning ourselves into a monster. During the war we were not monsters, we were victims," said Haradinaj, a former KLA commander and defendant of the ICTY who now heads the opposition party Alliance for the Future of Kosovo (AAK). Many protests against the Court, as well as other trials against KLA members, were have also been organized by KLA veterans. Managing public outcry, which is to be expected at guilty verdicts, will therefore be important and a challenge for the new Special Court.  

Due to the fact that many former high-ranking KLA members today are members of parliament in Kosovo, party leaders (e.g. Ramush Haradinaj for AAK, Hashim Thaçi for PDK, Fatmir Limaj for NISMA) or are otherwise part of the political elite in Kosovo the Court is likely to run into some of the same problems regarding cooperation as EULEX (and previously UNMIK). Furthermore, as mentioned above, Hashim Thaçi was mentioned by name in the CoE report and will likely be of great interest for the prosecutors at the Special Court. However, since the creation of the Court Thaçi has been chosen by parliament to take over as President (this was part of a deal between the PDK and LDK, the two parties currently in government, from last year to break the political deadlock after the June 2014 elections). It is therefore easy to envisage quite a lot of political problems for the Court in terms of cooperation from the government and parliament, which will likely be needed in order for the Court to be successful.

(ii) Witnesses Safety and Credibility – A Serious Challenge

Many of the other challenges have to do with witness protection and the way the Law on the Special Court deals with witness participation. Ensuring protection for witnesses testifying in trials has been an issue for all courts/tribunals and other institutions involved in prosecutions related to crimes committed during the Kosovo war, including the ICTY, UNMIK, EULEX, as well as national courts in Kosovo and Serbia. Ensuring witness protection will also be one of the most difficult tasks for the Special Court.

Kosovo is a small country with a population of just under 2 million. From the capital Pristina, which is pretty much in the center of the country, you can easily drive to the eastern town of Pejë/Peč (close to the border with Montenegro) or border with Albania in about two hours. Families are large and close knit and everyone seems to know everyone. Being a witness in a trial against members of the KLA, the country’s heroes, is likely to be regarded as a traitorous act.

One former KLA fighter said that said he has “been called a traitor, an embarrassment to the nation, garbage” after he decided to testify about the “horrors of the war in Kosovo” at a trial in Pristina. Despite being a protected witness, his identity was soon discovered and then “the hell began.” “They threatened my family, my brother, my mother… My family started receiving phone calls from unknown persons. They threatened that they would hurt my family if I continued testifying.” 

Witnesses have also been killed because of their testimonies. In 2002 a bomb was put under a car of a protected witness and a year later another witness, Tahir Zemaj was murdered in the town of Pejë/Peč after testifying at the trial of a senior KLA official. Two other witnesses in the same trial, Sadik Musaj and Ilir Selamaj, were also killed.

In the Drenica cases, 15 former members of a KLA operational group based in the Drenica region in central Kosovo were charged with war crimes against civilian prisoners at a detention center in the village of Likovc/Likovac in the Skenderaj/Srbica municipality. Two of the most famous defendants in this case included Sami Lushtaku, currently the mayor of Skenderaj/Srbica, and Sylejman Selimi, former Ambassador of Kosovo to Albania. The Basic Court in Mitrovica convicted 11 defendants in total; Lushtaku was found guilty of murder and sentenced to 12 years in prison and Selimi was found guilty of war crimes for torture, humiliating and degrading treatment and received a prison sentence of total 14 years (he received 6 years in the Drenica I case and 8 years in the Drenica II case).

However, the biggest challenge for the court in the Drenica trials was to secure witness safety and credibility. For example, some of the protected witnesses were exposed before the trials had even started by a Kosovo journalist, who broadcast an interview in which their faces were distorted but their voices identifiable; this is prohibited by Kosovo law. Many witnesses also gave testimonies during the trials that were different from statements initially given to the police. Most of the witnesses claimed their statements had not been translated properly or had been changed, or that they didn’t get to properly review what had been written in their name. It is unclear how much of this is true, and how many witnesses were intimidated into changing their testimonies. However, Charles Hardaway, one of the leading EULEX prosecutors in the case has said that witness intimidation is the real issue in Kosovo, not just in this case, but in the other high-profile cases.” 

The ICTY faced similar problems in regards to trials of former KLA members. Former ICTY Prosecutor Carla del Ponte has said that she believes the intimidation of witnesses seriously affected the verdicts in the cases against senior KLA officials Fatmir Limaj and Ramush Haradinaj; both were acquitted by the Tribunal. According to del Ponte, the investigations of the KLA were the most frustrating ones done by the ICTY and “witnesses were so afraid and intimidated that they even feared to talk about the KLA presence in some areas, not to mention actual crimes”. During the trial of Haradinaj, a number of witnesses were also killed.

According to the Law on the Special Court, the Court’s Rules of Procedure and Evidence “shall provide for the protection of victims and witnesses including their safety, physical and psychological well-being, dignity and privacy” (Article 23(1)) and “special provisions shall be included … to ensure the protection of vulnerable witnesses” (Article 23(2)). Furthermore, the EU is apparently currently drafting procedural rules that will include a witness protection plan. However, given the size of the country and the way society works, in-country with a new identity would be difficult, proper witness protection might mean that many witnesses may have to be relocated to third countries for the rest of their lives.

[For more on the issues of witness protection in Kosovo, see this article by Balkan Insight]

(iii) Witness Participation at the Special Court

Nevertheless, the Law itself is problematic when it comes to witness participation. Article 42 of the Law, entitled ‘Witness Summons’, presents a number of issues that may actually put witnesses at more risk, and may also influence the credibility of witnesses.

First of all, any “person present in Kosovo summonsed as a witness has a duty to respond to the summons and to testify unless otherwise provided for in this Law or the Specialist Chambers’ Rules of Procedure and Evidence” (Article 42(3)). This may seem like a harmless paragraph, and it itself isn’t necessarily problematic, as courts require witness testimonies in order to conduct proper criminal trials. However, subsequent paragraphs in this article may make the duty to testify very problematic for witnesses, given the particular context of Kosovo as mentioned above.

According to paragraph 7, a witness who fails to appear after a summons, who doesn’t justify this failure, or leaves the place where s/he were to be examined without permission or valid reason “may be compelled to appear and may be fined up to two hundred and fifty (250) EUR for each time he or she failed to appear.”

Furthermore, paragraph 8 states that if a “witness appears when summonsed but after being warned of the consequences refuses to give testimony without legal justification, he or she may be fined up to two hundred fifty (250) EUR.” The paragraph continues by stating that if after the fine the witness refuses to testify s/he may face imprisonment for up to one month.

Together these paragraphs create a difficult situation for witnesses before the Court, and it is questionable whether these paragraphs will actually contribute to justice for the victims of the KLA.

First, if witnesses know they will be forced to appear if summonsed, fewer witnesses might come forward in the first place – for fear that they will be punished if they later change their mind due to threats or intimidation.

Second, given the situation in Kosovo concerning the KLA and witness protection in previous trials, as discussed above, it is definitely not outside the realm of possibility that witnesses may refuse to testify. This is always a risk in any trial. However, fining witnesses €250 if they fail to appear when summonsed, or punishing those who refuse to testify when appearing in court, first with a fine, and then with prison when summonsed is both excessive and may not prove successful. In a country where unemployment is sky-high (in 2014 more than a third of the labor force was without work) and the average salary is around €360 (although many make much less) such a fine would represent about a month’s salary. Also, given the history of witness intimidation it is questionable whether witnesses will still testify, some witnesses will be likely to prefer the fine, regardless of how difficult it will be to pay, or even a prison sentence, so as to not be seen as a traitor of their own people. 

Conclusion 

As I stated in the beginning of this post,  I am a firm believer in international criminal justice and the importance of trying all those responsible of serious crimes. However there are serious issues with the Special Court, which may put the work of the Court in serious question and which will no doubt impact its success.

The most important of these issues is that of witness protection and security. The need for witnesses will be vital for the prosecution to be able to prove cases against indicted KLA members. However, it is arguable whether the need for justice should trump witnesses’ safety and security and their choice to participate in a justice process. I have had defense lawyers in Kosovo who tell me they will not be prepared to defend those accused before this Court, since they will not be part of a justice system that makes witnesses pay such a heavy price.