Analysis 28 Jun 17

Kosovo Special Court Prepares to Charge Ex-Guerrillas

Six years after a Council of Europe report accused Kosovo Liberation Army fighters of brutal crimes, the special court set up to prosecute these allegations is almost ready to issue its first indictments.

Marija Ristic BIRN Geneva
The Specialist Chambers building in The Hague. Photo: Europol.

Former members of the Kosovo Liberation Army guerrilla group who are allegedly responsible for killings, abductions, torture and other human rights violations during and after the Kosovo war may soon be standing in the dock because the new court’s rules of procedure will enter into force in seven days’ time after they were finally approved on Wednesday.

Although based in The Hague, the Specialist Chambers is legally part of Kosovo’s judicial system, but independent from the Kosovo judiciary and staffed by internationals, while all decisions and appointments related to the court will be made by the European Union.

The chambers had their rules of procedure and evidence ready in March. But a month later, the chambers’ Constitutional Court decided that out of 208 rules of procedure and evidence, ten provisions were not in line with Kosovo’s constitution.

They were found not to be consistent with Chapter 2 of the Kosovo constitution dealing with fundamental rights and freedoms and were related to people’s rights during investigations and administration issues in the Specialist Chambers.

So the chambers took another month and a half to correct these issues in order to assure that the “highest human rights standards are applied”, said the new court’s president Ekaterina Trendafilova.

The revised rules of procedure were finally adopted on Wednesday, paving the way for the prosecution to officially launch indictments and to start trials.

What next for the prosecution?

David Schwendiman, the chief prosecutor at the new Kosovo court. Photo: Kosovo specialist prosecutor's office.

After seven days, when the rules of procedure enter into force, the Specialist Prosecutor’s Office can issue indictments against former members of the Kosovo Liberation Army.

In the last couple of years, there have been speculations about who will be charged, particularly as the initial Council of Europe report looking at the alleged crimes mentioned the names of those who were claimed to have been responsible, including the current Kosovo President Hashim Thaci.

However prosecutor David Schwendiman has so far managed to keep the names confidential.

In an interview with BIRN last November, Schwendiman also stressed that suspected criminals are his target, not the Kosovo Liberation Army itself.

“I am not after organisations, I am not after ethnicities, I am looking at individual responsibility for what was done,” he argued.

It also remains to be seen if the prosecutor will produce sealed or public indictments.

During any arrests, he can count on EU rule-of-law police in Kosovo, but also on the Kosovo police force, as well as seeking cooperation from any other state.

Kosovo’s law on the Specialist Chambers also allows the prosecution to have its own police, but how this will work in practice remains a secret due to the sensitivity of the task. Many in Kosovo however believe that those ex-guerrillas who are indicted will voluntarily surrender to the court.

When it comes to detention, police will have 48 hours from the arrest to bring the suspect to the judge, who will decide on custody measures. The chambers’ detention facilities will be in the Netherlands.

What is the court’s mandate?

A banner showing Serbs kidnapped and killed during the Kosovo war, whose cases may now result in prosecutions. Photo: BETA

The Specialist Chambers will have jurisdiction over crimes that occurred between January 1, 1998 until December 31, 2000, and that either were committed or commenced in Kosovo, meaning it can also prosecute crimes committed in Albania, as many of the prisoners who were taken away by the Kosovo Liberation Army were detained in camps in northern Albania.

The chambers will be able to prosecute crimes against humanity, including murder, extermination, enslavement, deportation, imprisonment, torture, rape, enforced disappearance and other persecution on political, racial, ethnic or religious grounds. It will also prosecute war crimes and other violations - including the destruction of civilians’ property, towns, villages and religious buildings.

What crimes are likely to be prosecuted?

Clint Williamson, chief prosecutor at the EU special task force. Photo: SITF

The last person who spoke in detail about alleged violations committed by Kosovo Liberation Army members was Clint Williamson, the head of the EU Special Task Force which investigated the claims of violent abuses made in the initial Council of Europe report.

In a statement in 2014, Williamson said that enough evidence had been gathered to file indictments against senior Kosovo Liberation Army officials who “bear responsibility for campaign of persecution that was directed against ethnic Serbs, Roma and other minority population of Kosovo and toward fellow Kosovo Albanians whom they labeled as collaborators of Serbs or more commonly to have simply been political opponents of the KLA leadership”.

According to Williamson, ethnic cleansing of large numbers of Serbs and Roma also took place in Kosovo.

Williamson also said that the evidence was compelling that these were not the acts of rogue individuals but conducted in an organised fashion, adding that the abuses that took place after June 1999 amounted to crimes against humanity.

Why was the new court necessary?

Anti-EULEX graffiti in Kosovo. Photo: Flickr/John Worth.

There have previously been attempts to prosecute these allegations by three international institutions.

The crimes committed by the Kosovo Liberation Army in camps in northern Albania were first discovered by US journalist Michael Montgomery, who passed the evidence he got to the UN Mission in Kosovo, UNMIK, which was the administrative authority in Kosovo after the war ended in June 1999.

The memo sent to UNMIK went to the UN-backed International Criminal Tribunal for the Former Yugoslavia, ICTY, which was then investigating crimes committed during the Kosovo war.

The ICTY progressed slowly on the case and encountered numerous obstacles in investigating these claims, as former ICTY chief prosecutor Carla del Ponte detailed in her book in 2008.

Del Ponte’s book revealed to the public for the first time the allegations of organ trafficking which led to the Council of Europe inquiry.

UNMIK in Kosovo also initiated investigations, but they never reached trial. The same happened with the EU rule-of-law mission in Kosovo, EULEX, which took over war crimes prosecution in 2008.

After 2012, international powers, mainly the US and EU, advocated that the special tribunal be established.

They believed the court was needed because the Kosovo judiciary would be unable or unwilling to properly prosecute high-ranking former KLA figures, and because EULEX did not have the capacity to do so.

What are the court’s main challenges?

Central Pristina ahead of June's elections. Photo: BETA/AP.

The court will face serious challenges in securing the safety of its witnesses - as well as establishing its legitimacy in the minds of Kosovo Albanians.

At the same time it will be the first court in Kosovo that will try to secure victims’ participation and employ a reparation mechanism.

The failure of international courts and missions to keep witnesses safe and prosecute war crimes without political interference was one of the key reasons to establish the Specialist Chambers.

The witness intimidation problem was first raised by ICTY, then by UNMIK and EULEX.

Witnesses changed their testimony during trials, recanting what they said during the investigation phase. Witnesses also faced the risk of being ostracised by society mostly due to the fact that KLA members are perceived as heroes and testifying against them is seen by many Kosovo Albanians as an act of treachery.

The new court has pledged that witness protection will be its highest priority and insists that it has prepared a robust witness protection programme.

Other key issues are legitimacy and outreach. The court is seen in Kosovo as biased because it only focuses on one side of the conflict - the KLA’s activities, not the actions of Belgrade’s forces.

It is also perceived as an insult to Kosovo Albanians, most of whom believe that their fight against Serbian oppression was just. Many have pledged to take the streets to protest once indictments are issued.

The court is expected to cause serious turmoil on the political scene, as many leading ex-KLA figures hold official positions and exercise major influence in many areas, including government and business.

At elections in Kosovo earlier this month, three former KLA leaders united to form a political bloc which some observers dubbed the ‘war wing’ or the ‘Hague coalition’ - and won the largest proportion of the vote.

In an atmosphere like this, the Specialist Chambers’ outreach team will probably have one of the hardest jobs that any international tribunal has faced so far.

The fact that the chambers is located in The Hague, far away from the communities in which the crimes took place, is likely to make the job of communicating the righteousness of its mission to Kosovo Albanians harder still.

How will the court work?

The panel of judges at the Kosovo Specialist Chambers. Photo: Specialist Chambers.

The Specialist Chambers represent a new type of ‘hybrid’ judicial institution; it is a mix of international and domestic judicial elements; they will mirror Kosovo’s courts, but will have some features usually attributed to international tribunals.

The Specialist Chambers consist of two main institutions - the chamber and the registry. The chamber includes a basic court chamber, a court of appeals chamber, supreme court chamber and constitutional court chamber, mirroring the Kosovo judicial system. All judging panels at all court levels will be composed of three international judges.

The registry includes a defence office, victims’ participation office, witness protection and support office, detention management unit and ombudsman’s office. The official languages of the court will be Albanian, Serbian and English.

The specialist prosecution office will be independent, it has repeatedly stressed.

All court and prosecution staff are international, and the funding is also supplied by foreign donors, mainly the EU and US.

Defendants who are found guilty will serve their sentence in prisons outside Kosovo.

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