Kosovo to Create Special War Crimes Court but Faces Challenges
On August 3, 2015 the Kosovo Parliament passed the “Law on Specialist Chambers and Specialist Prosecutor’s Office,” a constitutional amendment that will establish a special war crimes court to prosecute former Kosovo Liberation Army (KLA) guerrillas for crimes committed during and after the Kosovo War between January 1, 1998 and December 31, 2000. The court will operate under Kosovo law and prosecute crimes against humanity, war crimes, and organ harvesting, among others. The court is likely to be based in the Netherlands because of concerns regarding judicial corruption and the lack of a robust witness protection program in Kosovo. As part of the vote that took place, the Kosovo Parliament also passed a law providing legal aid for KLA defendants. If the Netherlands agrees to host the court, discussions in the upcoming months must take place between Kosovo, the Netherlands, and the European Union regarding logistics, including the court’s budget, judges and prosecutors, and location, as well as sentencing and witness protection issues. [Balkan Insight: Major Challenges Ahead; Human Rights Watch; Reuters]
The Purpose and Structure of the Court
On August 3, 2015, 82 of the 120 deputies in Kosovo’s parliament voted to establish a special war crimes court to prosecute former Kosovo Liberation Army (KLA) guerrillas for crimes committed during the Kosovo War between January 1, 1998 and December 31, 2000. [Balkan Insight: How Will it Work?; Human Rights Watch]
The court will operate under Kosovo law, and its chambers will be located abroad, staffed with internationally appointed judges and prosecutors. The official languages of the court will be Albanian, Serbian, and English.
The specialist chambers will consist of the chamber and the registry. The chamber will consist of a basic court chamber, a court of appeals chamber, a supreme court chamber, and a constitutional court chamber. All panels at all levels will consist of three international judges. The registry will be made up of a defense office; a victims’ participation office, the role of which will be to represent victims’ interests; a witness protection and support office; an ombudsman’s office, and a detention management office. The specialist prosecution office will be an independent body with a police force capable of exercising the same powers as the Kosovo police. With respect to evidence, in exceptional cases, the prosecution can use evidence provided by the International Criminal Tribunal of the Former Yugoslavia (ICTY) and the Kosovo courts. [Balkan Insight: How Will it Work?]
Background to the Kosovo War
The Kosovo War, an armed conflict between Serbian authorities and the Kosovo Liberation Army (KLA), involved Serbian forces committing attacks on and forcibly displacing Kosovar Albanians, while ethnic Albanian paramilitary forces, including the KLA, committed abductions, beatings, and executions of Serb civilians. [BBC] As a result of this internal armed conflict, approximately 2,000 Albanian civilians were killed. While the Organization for Security and Co-operation in Europe (OSCE) brought a cease-fire in October 1998, violent incidents continued to take place. After the Racak massacre in January 1999, during which Serbian paramilitaries launched an attack that killed 45 persons, the international community increased its pressure on Serbia. However, Serbian paramilitary forces continued their campaign, which resulted in the displacement of 850,000 Kosovar Albanians as well as deaths. It was also at this time that NATO forces started an air campaign against Serbian forces. See International Center for Transitional Justice, Lessons from the Deployment of International Judges and Prosecutors in Kosovo (2006). See also Human Rights Watch, World Report 1999: Federal Republic of Yugoslavia (1999).
The Creation of the Court
The decision to create the court stems from a 2010 Council of Europe report by Swiss senator and then Council of Europe rapporteur Dick Marty. The report accused some KLA members of abduction, beatings, summary executions, and illicit trafficking in human organs during and after the Kosovo War. Subsequently, in 2011, the European Union established the Special Investigative Task Force (SITF) to investigate these crimes. On July 29, 2014, Clint Williamson, the task force’s first lead prosecutor, stated that he had enough evidence to issue indictments against some former senior KLA members for crimes alleged in Marty’s report. Williamson noted that most victims were Serbs, Roma, and other minority groups, as well as Kosovo Albanians who allegedly opposed the KLA or collaborated with Serbs. [Human Rights Watch]
Since the release of the report and the completion of the investigation, the EU and the US had urged Kosovo to amend its Constitution to permit the court’s establishment, emphasizing that the Kosovo judiciary would be “unable or unwilling” to prosecute high-ranking former KLA officials and that EULEX, the EU’s rule-of-law mission in Kosovo, lacked the capacity to do so.
When the Kosovo Parliament initially voted on the amendment in June 2015, the amendment did not pass, partly due to opposition from Kosovo’s ethnic Albanian majority and its leaders, many of whom are former KLA officials. For example, former prime minister and KLA commander Ramush Haradinaj stated that “during the war, we [KLA members] were not monsters, we were victims.” [The Sydney Morning Herald] Thereafter, the EU and the US warned that the U.N. Security Council would take up the issue by establishing a court to try former KLA fighters.
The Court’s Mandate
The Law on Specialist Chambers and Specialist Prosecutor’s Office provides the court jurisdiction over crimes that were committed or commenced in Kosovo between January 1, 1998 and December 31, 2000 during the Kosovo War. The court’s jurisdiction can also extend to crimes committed in Albania because many prisoners of the KLA were detained in camps in northern Albania. [Balkan Insight: How Will it Work?]
The court will hear cases on the following crimes: crimes against humanity (acts committed knowingly as part of a widespread or systemic attack directed against a civilian population) including murder; torture; rape; forced disappearance; extermination; deportation; imprisonment; enslavement; and persecution on political, racial, ethnic, or religious grounds; 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); and cases concerning organ harvesting, as well as the destruction of civilians’ property, villages, and religious buildings. Cases concerning organ harvesting are part of the court’s mandate based on the EU task force’s findings that individuals were killed in order to extract and traffic their organs. [Balkan Insight: How Will it Work?]
Additional rules that will govern the working of the court include the following: a suspect may be detained by the police up to 48 hours before a judge decides on whether the suspect will remain in detention, released on bail, placed under house arrest, or be prohibited from visiting certain places. Defendants who are found guilty can face a maximum sentence of life imprisonment and will serve their sentences in prisons located in States that are willing to accept them. While a defendant will be permitted to appeal the initial verdict, this will not allow for the possibility of a new trial; the court of appeals panel can affirm, reverse, or revise the judgment of the trial panel. [Balkan Insight: How Will it Work?]
Legal Aid for KLA Defendants
On August 3, 2015, the Kosovo Parliament also passed the “Law on Legal Protection and Financial Support for Potential Accused Persons in Trials Before the Special Court,” which permits defendants to request that their defense costs be paid from Kosovo’s State budget. Defendants’ families may also request financial support, and defendants who are found not guilty will be permitted to ask for compensation. [Balkan Insight: How Will it Work?]
For the court to be fully operational within the next six months to one year, there are several major issues that must be addressed. These include the following:
Kosovo will not pay for the court’s costs; rather the EU Member States must decide on the budget. The amount of money provided to the court will affect its capacity with respect to cases and investigations. For example, the International Criminal Court (ICC) has an annual budget of approximately 110 million euros which would likely allow for three to five cases to be investigated on an annual basis; the International Criminal Tribunal for the Former Yugoslavia (ICTY) costs approximately $300 million annually to function. [Balkan Insight: Major Challenges Ahead]
Judges and Prosecutors
In order for the court to be functional, judges and prosecutors from the international community must be appointed. It is likely that David Schwendiman, the lead prosecutor of the EU’s Special Investigative Task Force (SITF), will be in charge of the independent specialist prosecution office. This position will carry a four year mandate, with the possibility of an extension. This office will also have a police force with the authority to exercise powers that are given to the Kosovo police. [Balkan Insight: How Will it Work?]
The court will be located in Kosovo as well is in a “host state.” The EU has requested the Netherlands to be the host state, an arrangement that has yet to be finalized. [Balkan Insight: How Will it Work?]. Currently, the Dutch government “has not yet taken a decision on the hosting of the…tribunal.” [Balkan Insight: Major Challenges Ahead]
Defendants who are found guilty by the court will serve their sentences in prisons in States willing to accept them, which is the same procedure used by the International Criminal Tribunal for the Former Yugoslavia (ICTY). The court must sign agreements with interested countries, all of which will likely be EU countries. [Balkan Insight: How Will it Work?]
The EU and the Kosovo government must establish a robust witness protection program. This is particularly likely to be an issue given that given Kosovo’s small geographic size and population, the risk of witnesses being recognized is high, even if witnesses are given new identities. Human Rights Watch notes that witnesses in past war crimes trials against former KLA members have been victims of intimidation and death threats and even killed. [Balkan Insight: Major Challenges Ahead; Human Rights Watch]
To learn more about other supranational courts, including the International Court of Justice (ICJ), the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and other internationalized or hybrid criminal tribunals, visit IJRC’s Online Resource Hub.