Kosovo: The Special Court Can’t Be Overruled

Sebahate J. Shala

Kosovo has entered in a critical moment that–if not properly handled–could be detrimental for its future in international relations. On its doorstep is the Specialist Chambers (the Special Court), The Hague-based tribunal mandated to investigate, prosecute and adjudicate the alleged human rights abuses of former Kosovo Liberation Army (KLA) members during and after the war. Specifically, the Special Court is going to deal with cases that, according to former U.S. Ambassador in Kosovo, Greg Delawie, would be very difficult to be dealt with by Kosovo judges and prosecutors. Its creation is justified under the fear that Kosovo judiciary would be unwilling or unable to properly prosecute the “top KLA figures”–some of them currently in power–and the incapability of EU Mission in Kosovo (EULEX) to perform the task. It is estimated that around 800 individuals, belonging to ethnic minorities and Albanian collaborationists of Serbia regime, were forcefully abducted and disappeared during and after the conflict in Kosovo in 1998-2000.

Upon the request of Western allies and compliant to international law, Kosovo has undertaken all necessary measures to confront with past injustices, demonstrating its commitment to justice and rule of law. Following the report of Council of Europe Parliamentary Assembly (2011) and the EU Special Investigative Task Force (2014), the Kosovo Parliament amended the Constitution, allowing to adopt the Law on the Specialist Chambers (2015). President of Kosovo, Hashim Thaci, then the Foreign Minister, had been instrumental in this process. Eventually, he managed to convince members of Parliament to vote, as he called, “this unusual legal instrument” under the premise to protect Kosovo’s national interests. Occasionally, he gave his word to international partners to “fully cooperate with international judges and prosecutors” for justice to be done.

Thaci’s rhetoric, however, has dramatically shifted recently. He now thinks that he was betrayed by international partners, which as he said, promised him to accelerate Kosovo’s EU-NATO integration in exchange for the establishment of the Special Court. Eventually, Kosovo would be allowed to create its armed forces (There was no “deal” in this matter, the Quint Members in Kosovo confirmed). Hence, initiated by 43 parliamentarians and following the veterans’ petition, on December 22, 2017, President, supported by Prime Minister and Speaker of the Parliament, invoked an extraordinary parliamentary session to abrogate the Special Court. The real reason behind this approach is unclear, however, the media speculated that President intended to prevent any investigation against himself, for his name is mentioned as one of the main suspects for war crimes.

The Parliament’s initiative fueled huge reactions among international allies. The U.S called on political leaders to leave this court “unchanged” while the Quint–comprised of the U.S., United Kingdom, France, Germany, and Italy–warned that Kosovo could face “severe negative consequences” in its Euro-Atlantic future and the relationship with EU and the U.S. Kosovo analysts, on the other side, called the action an attempt to obstruct justice, as such anti-constitutional. Legally, Kosovo is obliged to respect the international law and international agreements, which both have supremacy over the national law. Specifically, the country should respect the Law on Ratification of Agreement with EU (2014) on the Specialist Chambers, including the Interim Agreement with the Netherlands on the Hosting of Kosovo Relocated Specialist Judicial Institution in the Netherlands and the one on the Seat of Kosovo Relocated Specialist Judicial Institution(2016). The initiative on the nullification of the Special Court, proceeded to the Government for an opinion, could lead Kosovo to further international isolation. In the worst scenario, it could place the authority of Special Court under the UN Security Council, an option strongly rejected by Kosovo political spectrum.

A Rationale for the Special Court

Transitional justice encompasses processes and mechanisms aimed at redressing the legacies of past abuses to ensure accountability, serve justice and achieve reconciliation. The end goal is establishing or re-establishing the rule of law. Transitional justice question, as Kritz coined, presents “the first test for the establishment of real democracy and the rule of law.” Therefore, it is the obligation of the state to prosecute and punish the perpetrators, disclose to victims and society the truth on those events, offer reparations to victims, and separate known perpetrators from law-enforcement bodies and other positions of authority (Mendez, 1996).

Kosovo has been involved in such processes for almost two decades. Herein, one may argue that the Specialist Chambers is unfair and unnecessary, even discriminatory, as a former ICTY judge, Wolfgang Schomburg, argued, given the fact that war crimes have (had) been tried–initially by the ICTY and UN Mission in Kosovo (UNMIK), and following Kosovo independence, by EULEX and Kosovo national courts. The thing is that international mechanisms, particularly UNMIK, have been criticized for a “systemic failure” in dealing with war crimes in Kosovo due to–among others–the low prioritization of war crimes compared to other international goals. During its tenure in Kosovo, UNMIK managed to complete just over 40 war crimes cases of 1,187 ones and EULEX–38 ones.

One of the main criticism is that UNMIK and EULEX have failed to deal with victims of the war: the missing persons and survivors of sexual violence. To date, 1,654 individuals, including my uncle, remain unaccounted for. The family quest to international justice about my uncle’s whereabouts has never received an answer. Nobody has ever arrested or tried in my uncle’s case. Two decades after the war, meanwhile, the victims of sexual violence are still waiting for justice. Despite a large file of statements documenting these crimes, UNMIK had, according to Amnesty International, never issued any war crimes or crimes against humanity in cases of sexual violence. Moreover, UNMIK, as the organization argues, had made no efforts to adopt a gender-based and sexual-violence approach (like in Sierra Leone, for example), for it lacked the expertise and training in dealing with survivors of sexual violence. It is supposed that about 20,000 Albanian women were sexually abused by Yugoslavia and Serbia forces during the NATO bombing in 1999, including five young girls from a village in the central part of Kosovo. As mother H., told me in 2000 when I was investigating these crimes, her daughter was taken from Serbia’s paramilitaries along with four other girls, then they were raped and threw in the wells. Their bodies were found after the war. In total, only three cases of sexual violence had been conducted–one by the ICTY–partially on sexual assault charges and two cases by EULEX.

The ICTY, from its part, adjudicated 14 cases relating to Kosovo’s war crimes of 161 ones. Seven cases were found guilty–a number, which according to Zaum, is “too small” considering the gravity of war crimes in Kosovo. Not mentioning the fact that Milosevic, against whom this Tribunal was founded, died with no verdict being issued, thus failing, as Waters argues, “to not bring an accounting for great violence, and a vindication and justice for the victims.”

Serbia: No Progress on War Crimes in Kosovo

Woefully, justice in the Balkans is still regarded as unfinished business. Serbia, which is responsible for killing 13,535 people in Kosovo, including my sister 21 years old, has made no progress in this matter due to the constant political pressure that the justice institutions have faced with. The War Crimes Prosecutor’s Office (WCPO) has indicted 184 individuals, of them 84 were convicted. Only 14 percent of these cases represent crimes in Kosovo. Since the adoption of War Crimes Strategy in 2016, in total eight new indictments have been issued.

The overwhelming majority of war crimes have gone unpunished. Serbia’s post-Milosevic governments not only failed to deal with past crimes in Kosovo, but they have repeatedly refused to accept the responsibility for crimes committed by Milosevic on behalf of Serbia’s population. They never offered a public apology to Kosovo’s victims and their families and failed to provide information on the missing persons’ whereabouts.