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A "hybrid" institution – based in the Hague, but part of the judicial system of Kosovo, the new special court for the crimes of the UCK promises, among many criticisms, a new approach to transnational justice
The Kosovo Specialist Chambers (SC), adopted by the Kosovo Parliament in 2015, are widely touted as a new, more promising attempt at justice for unpunished war crimes. A series of previous courts – ICTY, UNMIK, local courts, and later EULEX – have tried, but largely failed to bring perpetrators of war crimes to trial.
The promise of the SC to correct previous failures stands in its attributes as a hybrid court. Part of the Kosovo judiciary, but situated in the Hague and made of international judges, the SC represents a new type of hybrid court that combines the strength of international tribunals with the benefits of local ownership. Its hybrid features, arguably, would enable it to avoid the ethnic bias, social intimidation, and political pressure that typically plague war crime investigations.
Despite its promises as a new institutional model and ahead of the first indictments, the SC remains heavily contested in Kosovo proper. Its critics point to its ethnically-biased jurisdiction, fuzzy origins, and secrecy of its operation as ‘birth’ defects that taint its mission to conduct impartial investigations. Such problems have become more relevant in the context of the ethnically charged expectations that characterise post-war Kosovo, creating an inhospitable atmosphere for the operation of the SC.
Biased jurisdiction
From the very start, the idea of the SC was heavily contested by Kosovo Albanians, given the document which informs its statutes – the 2011 Marty’s report. Specifically, the SC jurisdiction encompasses the investigation of crimes against humanity, war crimes under international law, and crimes under Kosovo law, which were committed or commenced in the territory of Kosovo, and relate to Marty’s report, including the criminal investigation by the Special Investigative Task Force (SITF). All previous courts investigating war crimes had clearly established that most such crimes related to the use of excessive force by the Army of Yugoslavia and Serbian Police Forces. Yet, Marty’s report focuses on and covers only the members of the Kosovo Liberation Army (the KLA) and during a specific time span – between January 1st, 1998 and December 31st, 2000.
Given its specific focus, many in Kosovo see the SC as a selective form of justice. In the words of Kosovo Albanian analyst Njomza Haxhibeqiri, “the SC’s main shortcoming is its subject matter jurisdiction, which targets only KLA members, thus being perceived as invalid from the Kosovo Albanians perspective”. A poll from April 2017 confirms that 76.4% of Kosovo Albanians believe it is unfair that the SC will mainly prosecute war crimes and crimes against humanity associated with the KLA. As Haxhibeqiri further explains, “if the Law on the SC expands its scope not only to Marty’s report, but to try crimes committed by others as well, it will first save itself a lot of troubles. This way, it will have Kosovo’s support and it might indeed contribute to full-fledged truth instead of concentrating on only a portion of it”. Another Kosovo Albanian analyst working on the issue, Agon Maliqi, warns that such focus risks creating more resentment than justice: “the work of the SC, if the prosecution is successful, could produce some sense of justice among the Kosovo Serb community and Albanians who were targets of the KLA. Yet, targeting only the perpetrators of crimes from one side will eventually feed …a sense of injustice among the wider Albanian community”.
The issue of the SC’s bias, however, depends on whom you speak to. According to Serb activist Aleksandar Rapajic, the role of the court is to determine individual, not ‘group’ responsibility: “the perception that the SC is established against Kosovo Albanians comes from those that fear that they might be tried and sentenced by this institution. …These individuals that committed war crimes and gained substantial financial gains are calling upon ’higher interests’ to avoid their own responsibility….”. The individual responsibility argument, however, applies to all ethnic groups and does not explain why only Albanians should be liable to individual responsibility.
Fuzzy allegations
The contestation of the SC’s jurisdiction goes hand in hand with the poor evidence offered in Marty’s report to back up its allegations against a specific group, especially given the established evidence that most such crimes originated from the Army of Yugoslavia and police forces. The failure of previous local and international courts – which had expansive authority to investigate Marty’s allegations – to provide evidence, if not investigate the crimes, makes it challenging for the SC to justify the necessity of focusing on one group. According to Haxhibeqiri, “Dick Marty’s report on inhumane treatment and illicit organ trafficking clearly sets recommendations in its 19th Article to: Kosovar institutions, Serbian institutions, and most importantly EULEX. Marty’s report has been public since 2010... For five years, EULEX had the required time and the mandate to shed light on the alleged crimes …,however, it did not”.
According to the contestants of the SC, the passing of time certainly does not help to shed light on war crimes. According to journalist Leonora Aliu, “almost 20 years have passed since the war and all the institutions that started investigations or charges for war crimes, before the SC was established, had a better chance to bring war criminals to trial. There were more chances to find witnesses alive, with fresh memories, and evidence. …Therefore, this institution will be a bigger disappointment”.
As with almost every issue in Kosovo, Kosovo Serbs judge Marty’s allegations and the passing of time differently. According to Rapajic, “war crimes do not have a statute of limitations… it is possible to conduct war crime trials even after a long period of time. This gives us hope that the cases that the SC has the mandate to investigate will be processed and that the victims' families will have justice, despite the passing of time”.
Merged in Secrecy
Since much of the scepticism confronting the SC is a by-product of the failures of previous courts, the new institution would benefit from making a strong case for itself. Still, the Kosovo public is largely at dark about its scope of work and activities. As Maliqi explains, “the outreach has been extremely minimal. There does not seem to have been any effort to address perceptions about the selective nature of the court”. Haxhibeqiri confirms: “they do not even have an office in Kosovo, which could be considered odd. Even if the mandate was not biased, this distanced behaviour causes the population to see them as an external influence and not something driven from the inside. Their reactions remain inexistent and public appearances highly limited”.
The limited outreach allows space for misinterpretation and misinformation. According to Aliu, “each time a well known former KLA leader goes to the Hague and comes back, he will say in front of TV cameras nothing but that this process is against the KLA and unfair. Right now, all people know about the SC… is either what they hear in the news, mostly heroic statements by former KLA members, or rumours. However, nothing concrete that would help people build a logical, realistic opinion about the SC”. The result is an inhospitable social and political atmosphere for its work. A report from the Group of Legal and Political Studies concludes, not surprisingly, that the SC outreach office needs to cooperate more with Kosovo's government, civil society groups, and the international community in delivering a comprehensive and inclusive programme of public dialogue that would counter the general perception of the SC as an insult or even conspiracy against the KLA and its war for freedom.
The article is part of a wider research project supported by the Kosovo Foundation for Open Society as part of the project “Building knowledge about Kosovo (3.0)”, the findings of which will be published soon.
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