The New Criminal Court for Kosovo
The latest tortuous stage in prosecuting crimes committed during the Balkan conflicts of the 1990s is now underway in a new court in The Hague. The Kosovo Specialist Chambers (KSC) are the successor to the widely discredited International Court for the former Yugoslavia or ICTY which closed in 2017. They are the latest manifestation of what is known as “transitional justice” which aims to use the law to help heal communities like Kosovo, fractured by war and conflict, and restore stability.
Operating under the law of Kosovo, the KSC will prosecute crimes committed there between the beginning of 1998 and the end of 2000 against its citizens or citizens of Yugoslavia. The court claims to adhere to “the highest standards of international humanitarian law” which is good news given that its predecessor routinely convicted on the basis of uncorroborated testimony from anonymous witnesses giving overwhelmingly hearsay evidence.
But what makes the KSC of particular interest is that, unlike ICTY, it will be largely featuring Kosovar Albanian and Muslim defendants on whose side NATO fought against the Serbs. The same European powers who deployed their war machine to support and defend the KLA are now targeting their former allies in court. It is hard not to wonder what kind of justice will emerge.
In the dock are senior members of the Kosovo Liberation Army – men who went on to govern a Mafia state, running extensive drug and prostitution rackets and a network trading in human organs from murdered Serb prisoners and fellow Kosovar Albanians. Hashim Thaci, the former KLA commander, who became prime minister and then President of Kosovo, is among the first cases being heard after he unexpectedly resigned and surrendered himself into custody. This surprising turn of events raised inevitable speculation that his cooperation must be part of some plea bargain. Only the time to which he is sentenced, or not, will tell.
The fundamental problem facing the KSC is the same as confronted the ICTY – a complete lack of legitimacy. The overwhelming majority of the political class and people of Kosovo have no faith in the court. They complain that it is remote and has been foisted on them – imposed by outsiders. Under duress in 2015 a two thirds majority of the Kosovo Assembly approved the KSC but in December 2017 there was a strong move by the new governing coalition to revoke the decision. This instantly provoked a blunt and brutal warning from the US ambassador to Kosovo:
“This effort, if it succeeds, will have profoundly negative implications for Kosovo’s future as part of Europe. It will be considered by the United States as a stab in the back… Kosovo would be choosing isolation instead of cooperation.”
A Kosovan participant at a KSC workshop summed it up, saying “the court was established by force; like in The Godfather, the internationals said “I will make you an offer you can’t refuse”’. (Cited In Hehir, A. Lessons Learned? The Kosovo Specialist Chambers’ Lack of Local Legitimacy and Its Implications. Hum Rights Rev 20, 267–287 (2019). https://doi.org/10.1007/s12142-019-00564-y)
The huge pressure exerted on Kosovo was confirmed in a joint press release from the US plus Europe’s Big Four, France , Germany, UK and Italy – in January 2018 – which asserted : “The creation of the Specialist Chambers was the only way for Kosovo to demonstrate its commitment to justice and the rule of law and to continue to receive international support.”
They said that failure to create the court risked seeing the issue taken up by the UN Security Council and the inevitable involvement of Serbia’s big power ally Russia which opposes Kosovo sovereignty.
The court was set up by a simple exchange of letters between the government of Kosovo and the European Union. Like ICTY it is an ad hoc arrangement with no legal basis in a properly signed treaty. And yet the task it faces is formidable. It will be adjudicating on issues that go to the heart of Kosovo Albanian identity and challenge the cherished narrative of an heroic Kosovo Liberation Army that liberated their land from the Serb aggressor. The KSC will be detailing how the Kosovo Liberation Army engaged in oppressive and at times murderous, behaviour against Serbian civilians, as well as fellow Kosovo Albanians – a process that can only compromise the nationally accepted narrative.
Despite an ongoing outreach programme to try to explain the work of the KSC and the concept of transitional justice, opinion polls suggest over 75% of the public in Kosovo reject the KSC. There is a widespread consensus that “the court was not established solely to pursue justice and/or foster reconciliation; rather, the international actors who demanded its creation were allegedly driven by particular national interests and political motives, though there was significant disagreement as to what these ‘real’ motives were.”
The perceived lack of legitimacy and absence of public support does not bode well and is likely to have a negative impact on cooperation with the KSC and the reaction to its judgements ( Jelena, ‘Legitimacy, Scope, and Conflicting Claims on the ICTY. Journal of Human Rights, 13:2, (2014): 170–185)
It will undoubtedly face significant barriers securing witness testimony due to the honour system within Albanian society and the likelihood of witness intimidation (Crosby and Zejneli 2019) The court’s convictions and acquittals may well reinforce support for, rather than discredit, the ideologies which caused conflict in the first place. This so called “ blowback effect” would entirely defeat the declared purpose of transitional justice. Overcoming such fundamental problems will be challenging to say the least.
The seemingly insuperable problem is the KSC’s toxic inheritance from the ICTY, a tribunal memorably characterised as “a rogue court with rigged rules.” (Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice, John Laughland Pluto Press, London, 2007)
The KSC remains part of the same overarching legal machinery specifically created to validate and perpetuate a false version of history in which the Serbs are forever branded as genocidal aggressors.
The crimes allegedly committed by the KLA were first publicised in 2008 in the memoirs of Carla Del Ponte, former chief prosecutor of the ICTY. A report for the European Parliament into her claims by their human rights rapporteur Dick Marty, found sufficient evidence to justify further investigation and legal action. Marty said that in Kosovo principles of justice had for too long been put aside for reasons of political expedience and stability. Crucially his report challenged the ‘official’ version of events by offering a more balanced, less simplistic analysis.
“The appalling crimes committed by Serbian forces, which stirred up very strong feelings worldwide, gave rise to a mood also reflected in the attitude of certain international agencies, based on the assumption that it was invariably one side which were the perpetrators of crimes and the other side the victims, thus necessarily innocent. The reality is less clear-cut and more complex.” (Marty Report)
He described a climate and tendency to view the conflict “through a lens that depicted everything as rather too clear cut: on one side the Serbs, who were seen as the evil oppressors, and on the other side the Kosovar Albanians who were seen as the innocent victims. In the horror and perpetration of crimes there can be no principle of compensation. There cannot and must not be one justice for the winners and another for the losers.”
It was precisely the ICTY’s discrimination and double standards that poisoned the well of justice. The trial of Muslim warlord Naser Oric was a spectacular case in point. Oric was the Bosnia army commander based in Srebrenica who is still regarded as a national hero. Notoriously bloodthirsty, he launched raids into local villages where his men slaughtered some 1600 Serbs. Oric was charged with failing to prevent men under his command from killing and mistreating Bosnian Serb prisoners in 1992-93. Although convicted he was immediately released because he had already served time in pretrial detention. Two years later the ICTY appeals chamber overturned his conviction, ruling that prosecutors had not proved that he had control over the men under his command!
The basic essence of justice demands that everyone be treated in the same way. Marty concluded “the duty to find the truth and administer justice must be discharged in order for genuine peace to be restored, and for the different communities to be reconciled and live together.”
That is the purpose at the heart of transitional justice but for the KSC to achieve it could well prove a step too far. If the judges are guided by precedent then sadly, the verdict is already in.