International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Spring 2017 Issue

Hague Happenings


A New Court in The Hague

Iva Vukusic
By: Iva Vukusic, International Judicial Monitor Correspondent in The Hague

The Hague is home to a new court: The Kosovo Specialist Chambers and Specialist Prosecutor’s Office. Its establishment is a result of a 2011 Council of Europe (CoE) report which alleged serious violations of international law in the late 1990s, as Kosovo Liberation Army (KLA, Albanian: Ushtria Çlirimtare e Kosovës, UÇK) fought the Serbian forces supporting the regime of Slobodan Milosevic. At that stage, Milosevic was in power for a decade, engaged in supporting violent campaigns in Croatia, and Bosnia and Herzegovina. In the last period before his downfall in October 2000, he focused on eliminating Albanian resistance to his oppressive rule.

The CoE investigation, led by veteran Swiss diplomat and prosecutor Dick Marty, uncovered serious violations such as murder, abduction and torture. In order to address those violations, the European Union established a Special Investigative Task Force (SITF) and gave it a mandate to investigate the allegations made in the report. In 2014, Clint Williamson, the former US Ambassador-at-Large for War Crimes, then SITF Chief Prosecutor, made the announcement that the “SITF has found compelling evidence to file an indictment”, that the “findings are largely consistent with the CoE report” and that “indictments will be filed once a judicial mechanism is established to host a fully independent, impartial, transparent and secure trial”. The European Union, very much driving this process ahead, has been heavily invested in Kosovo since the end of the war, and throughout Kosovo’s drive towards its contested independence, which it achieved in 2008.

A reasonable question for the reader to ask is: if these crimes were committed during the late 1990s in Kosovo, how come the International Criminal Tribunal for the former Yugoslavia (ICTY) is not dealing with it? In that context, it is worth remembering that the Prosecutor’s Office at the ICTY was effectively barred by the United Nations Security Council, its founding body, from conducting new investigations and issuing indictments after 2004, as part of its completion strategy. Within that strategy, was the element of strengthening local capacities for prosecuting genocide, crimes against humanity, and war crimes. The ICTY was supposed to finalize the cases and the work that was already taking place in 2004, while remaining cases were to be dealt with by the local judiciaries. That task is only partially being completed by judicial authorities in Croatia, Bosnia and Herzegovina, Serbia, and Kosovo, as war crimes trials remain politically sensitive, expensive, and require a particular expertise that is not always readily available in sufficient quantities to deal with the immense case load.   

Jurisdiction of the Specialist Chambers and Prosecutor’s Office is limited to the period between January 1st 1998, and December 31st 2000, and covers crimes against humanity, war crimes and other crimes defined under Kosovo law. Interestingly, both institutions are part of the judiciary of Kosovo, so they are not some new international court. They are created by national law, but ‘internationalized’, in order to better equip them to deal with the difficult tasks that lay ahead. It’s an unusual set up, where the Chambers are ‘attached’ to each level of the Kosovo judicial system: to the Basic Court, the Court of Appeals, Supreme Court and Constitutional Court. The judicial framework establishing the Chambers and Prosecutor’s Office allows for the proceedings to be relocated outside of Kosovo, and staffed with foreign judges, prosecutors, and staff, in the interest of fair and impartial proceedings. Soon, the Chambers and the Prosecutor’s Office are set to move into the old EUROPOL building, not far from the International Criminal Court (ICC) and the International Criminal Tribunal for the former Yugoslavia.  

At this moment, the principals of the new institutions, the Chambers and the Prosecution, are working tirelessly to set it all up. The Registrar, Fidelma Donlon, has been tasked with ensuring that the Chambers meet all the requirements for such an institution, and that it is capable of conducting fair and impartial, efficient proceedings once they begin. Within Donlon’s mandate is all court management, language services, victims and witnesses’ protection and support and public information. That is one particular aspect of the work that has consistently been shown to have incredible importance for the success of the judicial institutions in The Hague and elsewhere. Communicating with the populations the courts are serving in post-conflict societies, and doing it regularly, clearly and in a language they understand has been emphasized as a crucial step towards the populations accepting the judgments courts render.    

The President of the Specialist Chambers, Ekaterina Trendafilova, has been appointed recently. She is an experienced judge, lawyer and academic from Bulgaria, serving, before this appointment, nine years as a judge at the ICC. Nineteen judges in total have been appointed, and among them well-known, experienced judges such as Michèle Picard and Christine van den Wyngaert, the former serving at the ICTY and the


latter, at the ICC and ICTY. Only the president will serve full time, while others will be called when proceedings begin. That reflects the philosophy behind the institution – the new ‘Kosovo court’ as it is often referred to – is a significantly smaller operation than the other judicial institutions in town. The budget for the new institution is around 30 million Euros a year (around 32 million U.S. dollars), provided by the EU, and other contributing countries such as Canada, Norway, Switzerland, Turkey, and the U.S. That is but a fragment of the regular ICC budget, or ICTY during the height of its activity.

The Chief Prosecutor is an experienced American lawyer, David Schwendiman, who was appointed to serve following the departure of Clint Williamson. Schwendiman was Head of the Special War Crimes Department at the Prosecutor’s Office in Sarajevo, leading the office and conducting investigations into some of the most complex cases in Bosnia and Herzegovina that the ICTY did not deal with. In his few public appearances in his new role, Schwendiman has made clear that his office will not be politicized, that it will work tirelessly, and be driven by evidence and nothing else. Back in September, during a press conference, Schwendiman stated that he will do his job the same way he had always done it: “fairly, vigorously, and without fear or favor”.  

The low profile the institution has so far kept is likely to change as the process moves to the stage of indictments being issued, and arrests sought. So far, little is known about the number of potential indictments, or defendants, and the potential date for the start of any proceedings. However, much is going on behind the scenes. Rules of procedure and evidence are being developed, and the necessary infrastructure required for a functioning court and prosecution is being built. The staff is being hired, and many of them are seasoned professionals with rich experience in the former Yugoslavia, and The Hague.

The Defense Office has been established, and is the responsibility of the Registrar, who needs to make sure that a list of ‘Specialist Counsel’ is created, containing names of counsel eligible to practice before the Specialist Chambers. There is also a system of legal aid for representation of indigent or partially indigent accused persons. Other responsibilities of the Registrar include ensuring victim participation, and the detention functioning up to the highest standards.

The protection of witnesses is arguably the biggest challenge for the new Court and Prosecutor’s Office. Similar cases at the ICTY demonstrated just what kinds of pressures and threats witnesses, and especially insiders with detailed knowledge of the crimes, face when testifying in court. Protecting witnesses and their families from the dangers they face in a small, tight-knit Kosovar society, where perpetrators are potentially involved with organized crime networks, is incredibly difficult and will require immense support by states, primarily in the European Union.    

The new Court and Prosecutor’s Office is operating in a deeply politicized immediate environment, in Kosovo, and Serbia. Kosovo’s independence is furiously contested by Serbia which regards it as its own territory, one that is invaluable as the site of the 1389 Kosovo battle, when a Serb prince was defeated by the Ottoman forces, leading to 500 years of foreign rule. For a large part of Serbia’s population, that territory is crucial for its history, and holds a special place in their self-perception as a community. As such, Kosovo is incredibly powerful as a tool for nationalist mobilization in politics. At the same time, Kosovo, now recognized by 111 (out of 193) UN members, is led by President Hashim Thaci, who was himself a high-ranking KLA leader during the relevant period. That means that the investigation and subsequent trial(s) may be uncomfortable for him, to say the least. In that environment, it will take wisdom and skill by the principals of the new court to navigate those difficult circumstances where leaders on both sides, in Kosovo and Serbia, are likely to try to use it for their political gain. The court, after all, must not only conduct fair trials, but has to be perceived, by the two stakeholder communities, as doing so. For now, formal support has been given to the court in both Pristina and Belgrade, but how genuine that support is remains to be seen.    

This institution is a result of finding creative institutional solutions to address the impunity gap in Kosovo. These are challenging times for the fight against impunity, and the courts and tribunals are threatened by an apparent lack of interest and support for justice. The EU is troubled by Brexit, and the political circumstances in some of its member states, and the Union’s joint response to challenges such as the war in Syria, Yemen, the instability in North Africa, and increased numbers of refugees. The new U.S. administration has so far shown little interest, competence and strategic vision in dealing with responses to mass violations during times of war. All of those factors make for a challenging environment for the Specialist Chambers and Prosecutor’s Office, which they will have to successfully navigate in order to fulfill their mandate: to provide some justice to the victims of crimes perpetrated in the last period of Yugoslavia’s bloody demise.  

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© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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