Kosovo: An unexpected exit foils the plans of a resolute prosecutor

Like David Schwendiman - Kosovo Specialist Chambers and Specialist Prosecutor’s Office
Monday, March 19, 2018 - 08:21

By Janet Anderson

David Schwendiman, a seasoned US attorney and war crimes expert, is being forced to step down as the Specialist Prosecutor (SP) at the Kosovo Specialist Chambers and Specialist Prosecutor’s Office. The court is dealing with the highly sensitive allegations against leaders of the Kosovo Liberation Army (KLA) for atrocities against ethnic Serbs during and after the conflict in Kosovo 1998, including alleged trafficking in human organs. Schwendiman’s premature departure, without a successor picked out, is said to be the product of “inertia at the US state department” under whose auspices he serves at the Specialist Chambers. Schwendiman has told The Guardian that all his attempts to try to leave a successor in place have been rebuffed.

“We began to press very hard for an answer about what was going to happen. I wanted to make sure that if I wasn’t going to be extended that was time enough to pick a successor so there’d be as little disruption as possible,” he said.

Before news of his imminent exit was made public, Schwendiman had spoken to journalists in The Hague about how exactly he planned to marshal facts to hold powerful individuals accountable for grave crimes committed in Kosovo between January 1998 and December 2000. As part of our #MyJustice series, here is Schwendiman, in his own words, explaining how he’s made “accountability” the watchword at the Specialist Prosecutor’s Office (SPO). The piece has been edited for clarity:

Why this court

Back in April 2014, before I took over, the High Representative of the European External Action Service together with the president of Kosovo engaged in an exchange of letters whereby the European Union said they would pay for it if Kosovo passed legislation that would create mechanisms that would allow anything that comes from the Special Investigative Task Force (SITF) work to be prosecuted in a Kosovo institution, located outside of Kosovo, staffed entirely by internationals. Why? Simply because the conclusion was that the institutions in Kosovo were simply not robust enough to deal with the kind of thing that was alleged in the Dick Marty report [on the Inhuman treatment of people and illicit trafficking in human organs in Kosovo] and may come out of the investigation.

The people who were named in the Marty report were very high level people in Kosovo, and it was believed that the Kosovo institution should not be put under that kind of strain or the results of anything they might do would not be considered credible and would not be looked upon as legitimate by anybody. 

The best chance of that happening would be for this to be done elsewhere outside of Kosovo with a non-Kosovo or Serb staff, budgets, prosecutors or prosecution staff. That eventually became a treaty between Kosovo and the European Union (EU). It was embodied in Kosovo law.

In August of 2015, the Kosovo Assembly passed the constitutional amendment that they had agreed to pass that provided the authority and created the institutions to do what they had agreed with the European if anything came of the investigation. That was the beginning, the genesis of these two institutions that we work with today. 

Two separate institutions

One of the most important things to keep in mind is that we are two separate institutions. There are the Chambers which comprises the registry, the administrative arm of this project. It administers things such as the Defence Council, the operations, the victims and other operations such as the witness protection. Once people become the ward of the court or they are heard before the court, it becomes the registry's responsibility to go about that and they've done a spectacular job setting up the institutions themselves. We share services that don’t directly relate to our core responsibilities. They provide us a place to work and conditions in which we can do our job. That's the registry. 

The other part of Chambers is the Court. The court is comprised of the same institutions that exist in the Kosovo judiciary. Pre-trial judges, trial panels, an appellate panel, a supreme court and a constitutional court all staffed by international judges. All the judges have been picked, sworn in and ready to work. They are not all working. They will work when there is work for them to do. The constitutional court has been working obviously and president of the court has been working doing a spectacular job, getting rules done and other things that are necessary for us to work.

A completely independent institution

The prosecutor’s office is a completely independent institution. We aren't part of chambers. For most tribunals, the prosecutor’s office (OTP) is a separate organ of the institution. We are not a separate organ, we are a separate institution completely and fully independent.

One of the reasons that these institutions were created was to ensure that there was independence and that we weren't influenced nor intimidated by what was going on in Kosovo or by Kosovo's politicians so that we could make decisions without having to worry about those pressures.

The law itself embodies that and says in Article 35 Section 10 that I [as the prosecutor] am not to take instructions from anyone and to make my decisions independently and conduct my business independently. As far as my core responsibilities go, that is beside whether to prosecute, who to prosecute, what to prosecute before, how to prosecute and when, when to alert the court that I’ve gotten an indictment that I will present, that's my core responsibility and mine alone. No one will tell me what to do and no one will influence me nor intimidate me. I'm too old to be intimidated. It doesn't work. 

Not political

The simple fact is, I am my own person. Even though I am seconded by from the United States, I do not report to the US on those decisions. They will learn about it when everybody else learns about it. I am not political. I understand the political context, the political sea in which I swim. I am not ignorant of that, obviously. But I'm not political. My decisions aren’t influenced by the impact that whatever I do might have on political conditions or stability in the region. I can't allow myself to be influenced by any of that so I'm not.

I made it very clear to the people in the region when I visited them last year that my job is to deal with accountability. I am not in the reconciliation business. I am not in the justice business, necessarily. I'm in the accountability business. My job is to be governed by the law, by the facts and to hold individuals accountable for their conduct within the jurisdiction that I have to deal with. Not institutions. Not movements. To hold individuals accountable.

Financed for five years

We are financed, obviously, by the European Union (EU) and by other contributing states. They were generous enough to together provide us with over 200 million Euros spread over a five-year period to get this done. Those who have reported on tribunals and courts know that five years is a pretty short period of time for any of this. One difference between us and the other tribunals is that we don't have a plenary large jurisdiction. When the ICTY was created in 1993, they had no idea what the end product was going to be, how many cases they were going to do or whether they were even doing cases at all.

We have a very limited mandate. Our responsibility is very focused. It is not completely out of whack for us to be talking about 5 years. But the law and the constitution amendments both contemplate that if this takes longer, we will be able to go longer. That will require additional funding and additional support but that will hopefully come with progress.

One of the differences between us and some of the more recent tribunals (like those in Sierra Leone, Lebanon and Cambodia), many of which have funding that only goes from year to year, is that European Union has done us the benefit of giving us this five-year period to start with and an indication that we might be able to on longer if we need to.

What is our mandate specifically? 

My mandate is set out in the Special Law. It is to deal with grave international and trans-border crimes. “Grave” is very important in that phrasing. That is fundamentally crimes against humanity and war crimes committed between 1st January 1998 and 31st December 2000, and related to the conduct that is dealt with in the Dick Marty report.

The standard that I have imposed on the people that work for me, the standard that I will use to decide whether or not I give the court anything, is the following:

1.    I have to have to evidence that I have reason to believe will be admissible in proceedings before the Court. I'm helped immensely by the rules of procedure and evidence that have been produced for us. We are following those rules religiously.

2.    I have to believe that the evidence I have will be available to me at the time I need to present it to the court in support of an indictment. I have to be convinced in my own mind that the evidence will be sufficient in quality and quantity to support convictions for the offences that I am charging someone with. And those convictions have to withstand appeal.

That's a heavy burden that we are taking on. It is a very difficult standard to meet but it's the prosecutions' standard. It's not the standard that you would necessarily use to write a report and it's not necessarily the standard you would use when you report out on your activity. It is the standard, however, that will have to be used before I put someone to proof in something that is as important as the work that we are doing.

My goal is to produce legitimate outcomes through legitimate processes that are recognised as legitimate, internationally and domestically. Outcomes that are also perceived as legitimate by those that they affect. There is only so much of that I can actually control. I can control the legitimate processes. I can control my work to make sure it is done in the most professional way, at a high standard. Whether what I do in the end is perceived as legitimate by the people who that are affected by the conduct the Dick Marty report discusses or in the region by the outcomes that we achieve is something that reporters covering this process will have a great deal to do with. It will largely be through how people learn about us that this last part of the goal will be achieved.

We strive, in everything that we are doing in the Special Prosecutor’s office to be as professional as possible, and although I don’t speak for the Chambers or the Registry, I know it is the same for them. So even though I can't speak for all three of us, I think I can say that we are trying as hard as we can to learn from the past. To learn from how things were done in the past, to improve how we do what we do, to take advantage of the good things that were done and try to use them to our maximum advantage.



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