The Kosovo Specialist Chambers works to get off the ground

Like President of Kosovo Hashim Thaci
Friday, September 16, 2016 - 15:54

By Benjamin Duerr

In The Hague, a new court for the prosecution of international crimes has been established and is currently working to become operational. The Kosovo Specialist Chambers were created by the parliament of Kosovo to try grave crimes committed between 1998 and 2000. This week, the registrar and the prosecutor for the first time spoke about their plans for the future.

In a heavily protected building only a stone's throw away from the former tower of the International Criminal Court (ICC), The Hague's newest court is taking shape. To ensure secure and fair proceedings, the court will be seated in the Netherlands. On Thursday, the newly appointed registrar, Fidelma Donlon, and specialist prosecutor David Schwendiman gave details about the structure of the court, its mandate and the next steps.

The crimes and the perpetrators

The Kosovo Specialist Chambers can try certain crimes against humanity (among them murder, torture, sexual violence crimes, persecution and enforced disappearances), war crimes and other acts criminalized under Kosovo law as described in a report by Council of Europe rapporteur Dick Marty. The Marty report alleged that high-ranking politicians and members of the Kosovo Liberation Army (KLA) were involved in various crimes, for example the trade in organs of prisoners of war, degrading and inhumane treatment and ultimately their disappearance.

According to the report, the crimes were committed by KLA members against Serbians who had remained in Kosovo and had been imprisoned. One of the persons allegedly most responsible for these crimes is Hashim Thaci, the former KLA leader who was elected as the president of Kosovo earlier this year.

However, prosecutor Schwendiman did not comment about possible indictments. Rather, he said he would carry out his investigations “without fear or favour”, adding that the Marty report only serve as a reference point, he explained on Thursday. “I will not mention who is on or off the table.”

The next steps

The Specialist Chambers in The Hague has 30 staff members at the moment, but wants to grow the number threefold in the coming months. The registry is currently recruiting experts for 100 positions ranging from finance to the witness protection unit. Next year, the court is set to commence judicial activities, Donlon explained.

However, before it can start working, two major steps have to be taken. First, the judges, who are selected by an independent panel of jurists, need to adopt the rules of procedure and evidence – a document which entails detailed descriptions of the court’s procedures. The rules will be presented to the specialist judges in the constitutional court of Kosovo who will have 30 days to review them. Once they are finalized, the prosecutor can open an investigation or receive filings. The second crucial step will be the adoption of the host state agreement by the Dutch parliament. Currently, only an interim agreement is in force, which does not allow the Kosovo court to hold criminal trials in the Netherlands, Donlon said.

The Kosovo court and other tribunals

The tribunal for the former Yugoslavia (ICTY), which was the pioneer among the international criminal tribunals in The Hague, has a mandate to prosecute similar crimes in the same region. While the Kosovo Specialist Chambers was established by Kosovo law, the ICTY was set up by the UN Security Council. Moreover, the ICTY is in the process of closing down and does not take new cases.

In the past, the UN tribunal tried, for example, Ramush Haradinaj, a former KLA leader, for war crimes. Haradinaj was acquitted in 2012 after a retrial. The ICTY faced significant challenges relating to the security and reliability of witnesses, several of whom were killed or refused to testify before the court.

The role of the KLA, which is seen by some in Kosovo as a liberation movement, is still a hot potato in the young country and creates tensions. “Witness protection is an issue,” specialist prosecutor Schwendiman acknowledged this week. He promised to ensure the safety of the witnesses and said this would be his “moral and personal obligation.”

Given the controversial mandate of the Kosovo Specialist Chambers, some have expressed doubts about whether the organization will receive the support and cooperation it needs to collect evidence in Kosovo and secure arrests. Schwendiman downplayed the issue, saying that international support is not faltering. “If it was faltering, I wouldn't be here.”

Lead image: Kosovo's President Hashim Thaci (Valdrin Xhemaj/EPA)

Benjamin Duerr is a Legal Analyst and member of the Peace and Justice Initiative.

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