The Kosovo Specialist Chambers
A new chapter for international criminal justice in the Balkans
As the doors were closing on Churchillplein 1, the Hague, the former home of the International Criminal Tribunal for the former Yugoslavia (ICTY), only a short walk away a new institution began preparing indictments for war crimes committed during the Yugoslav wars. Emerging from the large shadowof the ICTY, it is no exaggeration to state that this new criminal tribunal was awaited with much anticipation: the establishment of the Kosovo Specialist Chambers (KSC) and the Specialist Prosecutors Office (KSPO) starts a new chapter for international criminal justice in the Balkans.
The KSC in a Nutshell
Eighteen years after the armed conflict and nine years after the declaration of independence, the KSC became fully operational with the adoption of the Rules of Procedure and Evidence on 5 July 2017. The KSC follows a hybrid model by operating from two seats, one inside and one outside of Kosovo. In case of a guilty verdict, the respective individual will be imprisoned outside of Kosovo. However, the location in Kosovo remains mainly ceremonial, as the KSC will be composed of international judges and prosecutors appointed and financed by the EU, seated and operating in a EU member state. The Specialist Chambers based in the Hague mirror each level of the Kosovar court system: the Basic Court of Pristina, the Court of Appeals, the Supreme Court, and the Constitutional Court. The latter will exclusively deal with constitutional referrals concerning the KSC or KSPO.
Establishing the KSC
The KSC is an ad-hoc judicial institution tasked with the investigation and prosecution of crimes against humanity, war crimes, and specific crimes under Kosovo law committed between 1 January 1998 and 31 December 2000. Specifically, those crimes must be related to the allegations contained in the Council of Europe Assembly Report of 2011, the so-called Marty Report. This report prepared by Swiss politician and state attorney Dick Marty on “inhuman treatment of people and illicit trafficking in human organs in Kosovo” reiterated allegations first brought forward by Carla del Ponte, former Chief-Prosecutor at the ICTY, in her 2008 memoir. Specifically, Marty and del Ponte alleged that several important factions and leaders of the Kosovo Liberation Army (KLA) had engaged in significant violence against minorities, Serbs, Roma, Ashkenazi as well as Albanians who were considered traitors. Most prominently, he accused the Drenica group, which was then led by Hashim Taci, for human and organ trafficking from the so-called yellow house in the Albanian mountains.
While the establishment of an independent Kosovo war crimes court was perceived too costly in the 2000s, the allegations brought forward by the Marty Report and the subsequent EU-funded Special Investigate Task Force influenced the US and the EU to push for the establishment of a new tribunal. In April 2014, the EU High Representative Catherine Aston exchanged letters with the Kosovo President Atifete Jahjaga in order to establish the Specialist Chambers. In the course of the next year, the tribunal was heavily challenged in domestic Kosovo politics, but finally on 3 August 2015, both a constitutional amendment to establish the hybrid court and the Law on the KSC and KSPO were adopted in Parliament.
The Jurisdiction of the KSC
The jurisdiction of the new tribunal will mainly determine whether the KSC will be more successful in prosecuting crimes alleged by the Marty report than his predecessors such as UNMIK, the ICTY, and EULEX. Concerning subject-matter jurisdiction, Art. 6 of the Law refers to all crimes set out in Arts. 12 to 16, which include crimes against humanity, war crimes, and other crimes under Kosovo and FRY law. Yet, this does not include organized crime and the link to the Marty Report is notably missing. According to Art. 7, temporal jurisdiction covers the period between 1 January 1998 and 31 December 2000. This time period clearly extends over the official end of the Kosovo conflict on 10 June 1999 and thus also allows to take into account the aftermath of the conflict, however the clear cut-off date could pose a problem for some crimes committed (which is one of the reasons why the ICTY had always refused to accept an official end limitation). In respect to the territorial jurisdiction of the KSC (Art. 8), the chambers preside over crimes, which were either commenced or committed in Kosovo. This dual aspect of territorial jurisdiction allows for the prosecution of crimes with a transboundary connection, for instance to Albania and Serbia, which will be helpful in the prosecution of the alleged crimes under the Marty Report. Personal jurisdiction (Art. 9) covers active and passive personality over persons of Kosovo/FRY citizenship or over persons who committed crimes within its subject matter jurisdiction against persons of Kosovo/FRY citizenship wherever those crimes were committed.
The KSC is not only the last opportunity to bring about international criminal justice in Kosovo; it’s also illustrative for several developments in international criminal law. Already the ‘Regulation 64 Panels’ established by UNMIK and the proceedings held before EULEX had taken the form of a hybrid tribunal, yet, with the establishment of a tribunal outside of Kosovo with an exclusive participation of international judges and prosecutors, the institution is becoming more and more internationalized. The KSC’s concurrent jurisdiction to Kosovar authorities is a clear break from the complementarity principle as embodied in Art. 17 of the Rome Statute. Moreover, the KSC marks the EU’s first engagement as the primary international sponsor of a court with jurisdiction over violations of international criminal law.
The history of international criminal justice in Kosovo has also shown that prosecuting alleged violations depends as much on domestic support as on the finances and logistics provided by the international community. In light of recent events, it is questionable whether the domestic support of the KSC is sufficient. The parliamentary elections in June 2017 led to several prominent KLA leaders in political office such as Prime Minister Ramush Haradinaj, President Hashim Thaci and parliamentary speaker Kadri Veseli. This raises the obstacles for prosecuting the crimes alleged in the Marty Report. Moreover, while the KSC is finally staffed and running, MPs of the leading governing coalition attempted several times in recent weeks to abolish the Law establishing the KSC. Western states reacted sharply to those attempts. The US ambassador, among others, calling this a ‘backstabbing’ by Kosovar elites. In turn, the immediate forced return of US prosecutor David Schwendiman, announced in mid-February, does not only pull one of its most important and experienced proponents from the Court, but will most probably delay the publication of indictments significantly. While the ICTY has closed its doors, the story of international criminal justice in the Balkans is far from over.
Silvia Steininger is Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany.
Cite as: Silvia Steininger, “The Kosovo Specialist Chambers – A New Chapter for International Criminal Justice in the Balkans”, Völkerrechtsblog, 14 March 2018, doi: 10.17176/20180314-090618.