A New Era for Justice in Kosovo

Kosovo Special Court became operational on January 1. If it indicts all persons mentioned as suspects in the Marty Report, it would represent a tsunami of sorts, one that could cause tectonic shifts.

Kosovo’s transition from 2016 to 2017 will not only mark the passage from the old year to the new. As of January 1, the Special Court seated in The Hague will become operational. It will be in charge of examining suspected crimes committed mostly against Serb civilians, but also those of other ethnic groups during and after the Kosovo war. The story of how this court was established is well-known. Following the sensational revelation by former ICTY Chief Prosecutor Carla del Ponte, published in her 2008 memoirs ("The Hunt“) –that The Hague Tribunal’s Prosecution had had knowledge of mass kidnappings during the late stages of the Kosovo war and thereafter – the Council of Europe’s Special Rapporteur Dick Marty carried out an investigation which resulted in late 2010 in a shocking 27-page report[1].

This claimed that around 500 civilians (comprising some 400 non-Albanians, mostly Serbs, but also Romani and around 100 Albanians) had been abducted in Kosovo following the deployment of KFOR and that an unidentified number of them were secretly transferred to Albania for the purpose of organ trade. The Council of Europe adopted the report in early 2011 thus providing the document with major international credibility, as it was now backed not only by the largest European organization but also the body that is considered the exclusive human rights protector in the continent of Europe. When it adopted the Marty Report, the Council of Europe called for an “independent investigation so as to reach the actual truth concerning these claims”. This was a signal for setting in motion a mechanism for seeking a way to investigate these claims and examine them in a court – the only competent instance for determining the truth, possible guilt and accountability.

After numerous negotiations on seeking a modality for this court’s establishment and manner of operation, it was decided to set up a special Kosovar court which would nominally be part of the Kosovo judicial system but operate outside Kosovo, and would only hire international judges and prosecutors. The Hague, as the “capital” of international courts, was chosen as the seat of the Special Court. The funding for its operation has, naturally, been secured by the European Union, whereas its reins (especially pertaining to the prosecutorial domain) are in the hands of the Americans. The saying about justice being slow but attainable has also been confirmed on this occasion. It took 6 years after the Marty Report had been adopted during a parliamentary assembly of the Council of Europe for the Special Court to be established. It is estimated that the Court will be operational for around 8 years, including the appeals process.

In his report, Marty points the finger directly at the majority of the main leaders of the Kosovo Liberation Army (KLA), headed by Hashim Thaçi, who were members of the so-called Drenica Group and who today make up the backbone of the Kosovar political establishment. For Marty these are the parties most responsible for the crimes with which the Special Court will be dealing. “We found that the Drenica Group had as its chief – or, to use the terminology describing an organized criminal network, its 'boss' – the renowned political operator and probably the most internationally recognized person of the KLA, Hashim Thaçi,”[2] Marty stated.  

Hybrid court

Formally (and officially), the Special Court is not a separate criminal court such as the ad hoc criminal tribunals for the former Yugoslavia, Rwanda, Sierra Leone or Cambodia. Basically, it is a group of four Specialist Chambers and a Specialist Prosecutor’s Office which are part of the Kosovo judicial system but relocated from Pristina to The Hague. Both the court and the prosecution will employ only international staff. The staffing is of a temporary nature; the staff have a special and clearly-determined mandate and will be in charge of crimes against humanity and war crimes which occurred between January 1, 1998 and December 31, 2000, allegedly committed by KLA members against ethnic minorities, but also against political opponents from Albanian ranks. The “Yellow House” case in Northern Albania where allegedly organs of kidnapped persons were extracted, also comes under this court’s jurisdiction.

Since this is a Kosovar court, it was necessary for the Assembly of Kosovo to adopt a law on its establishment[3]. This was made possible only in August 2015 after the required alteration of the Kosovo Constitution[4].  According to the law, the Special Court will try cases in concordance with Kosovar laws and international law. It will not depend on Kosovar higher judicial instances because the Special Court will also rule in the second, appellate instance. The Court’s archives and case documents will be kept outside Kosovo, as will the testimonies of protected and, by all accounts, anonymous witnesses. With everything considered, the Special Court represents a precedent. It was conceived as a hybrid Kosovar-international court, even though it will essentially be solely an international court which Kosovo will only be able to influence to the extent that it can influence the International Court of Justice (namely, no influence whatsoever).

Nevertheless, the Special Court was formalized in this way so as to dismiss any impression of it being a special court for war crimes used by the international community to “try a country”, as has been the case with previous international tribunals, as well as to encourage the belief that this is a joint Kosovar-international project for determining the truth of one of the most shocking international reports on what took place during and after the Kosovo war.

The question arises as to why the Court’s creators (the USA and EU) opted for such a judicial format, as opposed to the traditional one of establishing an international special court with exclusive jurisdiction over a specific country. There are two possible reasons for the establishment of the Special Court along the hybrid Kosovar-international pattern. The first consists of an intention to “save face” of a newly-established state which was created as part of a local, but also international project to extract Kosovo from Serbia, since a stubborn insistence on the resolution of the Kosovar crisis within Serbia would have induced a war of extermination. The fact that an independent Kosovo is as much an international project as an Albanian one, has shaped this court’s format to a large extent.

Namely, such a set-up protects the dignity of Kosovo in the eyes of the international community to the greatest extent possible. The second reason had to do with keeping the Marty Report out of the UN Security Council which, apart from enforcing the tribunal format as a model for the establishment of a court in charge of Kosovo, would have helped to create space for Russia to influence the court’s mandate and personnel, including the appointment of Russian judges who could then have faced some of the present-day Kosovar politicians in court. A compromise was reached in having the state of Kosovo establish the court but – for the purpose of avoiding potential accusations of partiality, as well as for the sake of witness protection – relocating it outside the country and employing international staff.

Therefore, legally speaking, the Special Court remains a Kosovar court even though it will not be Kosovo that will issue the rulings. One day, long after the Special Court has ceased to exist, and regardless of the fact whether the Marty Report has been confirmed or refuted, it will be possible to ascertain that the real truth about the report was determined thanks to Kosovo’s willingness to sacrifice part of its statehood, i.e. judicial sovereignty. In addition, however, one should bear in mind that it is the international community which has pushed through this project and that Kosovo joined it unwillingly.

One could even conclude that it was imposed upon Kosovo from abroad. This has created a great deal of animosity toward the Court among the Kosovar public, and thus it is safe to assume that the Court will have to count on a hostile environment in the state that formed it. Do the Court and its founders need to be concerned with such a reception given the fact that, during a visit to Belgrade in November 2016, chief prosecutor David Schwendiman stated that he was dedicated to managing a process that is “legitimate and will be considered as such by everyone the prosecutorial office’s work relates to“?[5] Before seeking an answer, it is perhaps better to pose the question on whether Kosovo needs to worry about such a hostile domestic stance toward the Court, since a confrontation with the USA and the EU is what it least needs today.

Cover-up produces internationalization

Kosovo will face harsh times when indictments concerning the crimes addressed by the Council of Europe’s report are brought before the Special Court. When considering the approach Kosovo should assume towards the Court, the first matter which needs to be settled by politicians and parties, as well as the media and citizens, should be why it was decided that the international judiciary should take over jurisdiction on determining the actual truth of matters covered in the Marty Report which, according to the principle of territorial and actual jurisdiction, should fall under Kosovo's competencies?

The answer to this question is simple: Kosovo failed to do its homework. It did not display the political resolve to initiate an independent and efficient investigation into claims of monstrous war crimes and crimes against humanity (which are not covered by statutes of limitation) – hence, this jurisdiction was transferred to international instances. The fact that the international judiciary is dealing with an issue which belongs to an internal jurisdiction is not a good sign for the continent’s youngest state which is still actively pursuing its place under the European sun. If it wants to take quicker steps towards its seat at the European family table, Kosovo needs to realize that problems like these cannot be resolved by putting them aside or covering them up, because, by doing so, they are then “internationalized“ and become a big stain on the suit of a state that is unwilling or incapable of dealing with them.

If, by any chance, Kosovo had taken the initiative on its own, had it formed an investigative team or a special court to be in charge of the Marty Report, had it managed to assure the world that it took this report seriously and reacted to it the same way, no one outside would even think of seeking an infiltration of international judiciary into this matter. However, Kosovo acted in a different way. After the Marty Report was published, the then Kosovar Prime Minister Thaçi, deeming himself mostly affected by it, announced a lawsuit against the Council of Europe’s Special Rapporteur. Charges are yet to be pressed.

Witnesses are the greatest challenge

There are two schools of thought in Pristina on who will be indicted in The Hague. The first one says that the indictees will include the main Kosovo officials who were launched into high politics due to their involvement in the war and KLA command positions. According to this standpoint, the Marty Report represents a direct indictment containing as it does the actual names of the KLA leadership’s top echelon. As a result, the whole international undertaking to establish the Special Court cannot be concluded in any way other than a “big bang”, namely by issuing indictments against everyone mentioned in the Marty Report.

The other school of thought claims that the establishment of the Special Court could not have been avoided, because the Marty Report became no longer that of an individual but a document officially backed by the Council of Europe, and that the indictees will include regional KLA commanders who were in charge of the areas where mass abductions and disappearances occurred. Both standpoints confirm the impression that no similar or previous international judicial project was veiled in secrecy to the extent as was the case with the Special Court, especially when bearing in mind the identity of those for whom it was established.

Names do indeed matter. For, if claims by the first school of thought prove to be correct, Kosovo will be politically decapitated. But they are not the most important, or the only ones that matter. One should bear in mind that the greatest challenges which the Court faces are the securing of evidence and protection of witnesses. Although he refers to “insiders”, Marty in his report cites only anonymous witnesses, which is understandable considering the lack of security they face in Kosovo. Rumor has it that during their work, he and his modest team of only a few investigators mainly used foreign intelligence agencies’ information and sources on the widespread abductions which took place towards the end of the Kosovo war and after it.

It is also claimed that Marty, due to his concern for the security of his witnesses, agreed to reveal their names only to US prosecutor Clint Williamson who led the Special Investigative Task Force in charge of examining claims from the Marty Report. On the other hand, it is claimed that Williamson, for the sake of witness protection, set up his investigation in such a way that individual members of his enormous apparatus of investigators each knew only pieces of the mosaic, into which only this experienced prosecutor– famous for having participated in the elaboration of The Hague indictment against former Serbian leader Slobodan Milošević – had complete insight.

Rumors, of which independent confirmation is difficult, claim that statements confirming the indictment were made by some 400 persons and that 30 of these would probably testify before court openly or as anonymous witnesses. In addition – based on the special protection program – the main witnesses in the Marty Report, including several former KLA members, have long been extracted from Kosovo and are today living in West European countries with altered identities. These rumors gain in credibility when one considers that witnesses are the “Achilles' heel” of the Kosovar judicial system, as was previously assessed by the Humanitarian Law Center – Kosovo, since they and their families are not safe; they are exposed to pressure and attacks and their lives are in jeopardy.

Just not down the EULEX road

It would be a grave error to fetishize the international judiciary system and expect the Special Court to do its job smoothly and efficiently. Kosovo has, to say the least, had a very bad experience with international dispensers of justice. Since the war and to this day, the entire Kosovar judiciary has been and is under direct international administration. First, UNMIK was exclusively in charge of prosecuting the most serious criminal offences; then, following the declaration of independence, this role was taken over by EULEX. Only since mid-2016 have Kosovar prosecutorial offices and courts gained full jurisdiction to process war crimes, as well as other criminal offences with political and ethnic backgrounds.

Neither UNMIK nor EULEX have taken the smallest step during the past 17 years to shed light on the situation addressed by the Marty Report, which are now under the Special Court’s jurisdiction. At the same time, everyone knew about it. The abduction and disappearance of around 500 people in the course of six months is no small matter. It was not a matter of numbers but human beings – particularly given the fact that their families have never been able to come to terms with the fate of their loved ones and are still demanding truth, justice and responsibility. There is also the question as to why those two international mechanisms failed to shed light on the alleged occurrence of one of the most serious criminal offences to be perpetrated during the Kosovo war. Seeking an answer to that would require much time and space. What is important regarding the Special Court is that it must not repeat the mistakes made by UNMIK and EULEX, nor be brought into any connection with them.

This particularly goes for EULEX – if one wants the Special Court to succeed, there must be no continuity between it and EULEX, since the largest (and most expensive) civilian mission in the history of the European Union has been such a failure that even the keenest EU supporters in Kosovo are wondering how could such a major and successful organization such as the EU could “give birth” to such an unsuccessful infant. During its entire 8-year mandate, EULEX was directly in charge of what the Marty Report addresses but made no effort whatsoever to shed light on the case.

Instead of having as its goals the implementation of the best European practices and the “Europeanization” of Kosovo’s judiciary, EULEX – due to its incompetence, and inadequate and often flawed recruitment of European judges and prosecutors, lack of courage, petty politicking and proneness to compromise – has allowed itself to become “Kosovarized”. Still, the EULEX mission cannot be termed a total failure, as there is another group which is even weaker in this domain: the local Kosovar judiciary. As for the Special Court, the profiles of its prosecutors and judges should be based on those from The Hague Tribunal for the former Yugoslavia, rather than the many amateurs who have handled court-related and prosecutorial tasks for the first time in the framework of EULEX.

A tsunami on the political scene

If the Special Court indicts all the persons mentioned as suspects in the Marty Report, it would represent a tsunami of sorts, one that would cause tectonic shifts in Kosovo’s political scene, perhaps even a succession of generations. Without Thaçi and the Drenica Group, their Democratic Party of Kosovo (PDK) would face a blow that would be difficult to overcome in the long run, similar to what happened to the Democratic League of Kosovo (LDK) following the death of “father of the nation” Ibrahim Rugova in 2006.The LDK is still unable to recover from that blow and has not been in power since, turning into a mere appendage of the ruling party.

A PDK decline would inevitably open up space for its political opponents, providing a chance for the largest and, many would argue, the only true opposition party – Vetëvendosje (Self-Determination) – to take over power along with other, smaller opposition parties. In normal democracies, the extent to which a political party contributes towards society’s progress is the decisive factor in determining the political winner of a power struggle. In Balkan "democracies“, things are different. Power is gained by those who control the media, public funds, vital state agencies, or are simply more skilled in election fraud. In the case of Kosovo, the Special Court emerges as an additional, perhaps even decisive factor. Although it is not its objective, this court could play an important role in the reconfiguration of the political landscape in upcoming 2017. It could “knock out” the main Kosovar party, sending it from the driver's seat to the back seat, or otherwise create a unique opportunity for Vetëvendosje to go from being the main opposition party to the party in power.

Should such a scenario unfold, it would represent an irony of sorts, for it was Vetëvendosje that vehemently opposed the constitutional changes and adoption of the Law on the Special Court, arguing that this would lead to an indictment of the entire KLA. The PDK leadership is aware of this scenario. This explains recent tensions between the coalition partners PDK and LDK, as well as reports that a crisis in the ruling coalition could be stirred up and lead to snap elections as early as next spring, which would, in turn, absorb the Special Court's “blow” against the largest Kosovo party and give it another term in power. However, these calculations could be spoiled by Schwendiman if he opts against waiting for Kosovar parties to complete their pre-election configuration aimed at alleviating the consequences of the Hague tsunami, and addresses sealed envelopes with arrest warrants to Kosovo as early as the beginning of 2017.

The list of names of former high-ranking KLA commanders who are subjects of the investigation based on the Marty Report is still being kept in utmost secrecy, and no one in Pristina, apart from the US Ambassador, has the slightest clue about it. It is highly logical that, besides those mentioned by Marty, other persons should appear before the court, as it is possible that a secret investigation lasting so many years could have gone in a new direction and found additional names. It could also have proved some of Marty’s findings to be unfounded.

Why “some”, rather than all? Because Williamson, at his farewell press conference prior to handing over his mandate to his American colleague Schwendiman, stated[6] that the investigation led by him had found evidence of mass abductions and disappearances after the Kosovo war and that he could immediately raise indictments concerning this part of the Marty Report. "[Investigative findings] are largely consistent with the Council of Europe report of 2011.  [...] The Special Investigative Task Force found compelling evidence to file an indictment against certain former senior officials of the Kosovo Liberation Army (KLA),” Williamson stated.

He went on to say that “the victims of these crimes were mainly Serbs, Roma, and other minorities, but also Kosovo Albanians who were labeled either to be collaborators with the Serbs or, more commonly, to have been political opponents of the KLA leadership. [...] The Special Investigative Task Force has found compelling evidence that certain individuals in the senior leadership of the former KLA used elements of that organization to perpetrate violence in order to obtain political power and personal wealth for themselves”, he said. But the investigation, Williamson argued, had failed to secure convincing evidence of trade in kidnapped persons’ organs, which does not mean that it did not proceed along this path or that it will not continue to do so. With regard to this issue, he stated that his investigation has shown that the claims about hundreds of persons having been murdered for the purpose of extracting and trafficking their organs, are “totally unsupported” – establishing that there could have been only a “handful” of such cases.

Apart from the secrecy over the names of former KLA commanders and today’s high-profile politicians who could be indicted before the Special Court in The Hague, the second mystery which has followed this story from its beginning relates to the (im)probability of monstrous claims about the large numbers of abducted civilians whose organs had been extracted and subject to trafficking.

This, perhaps, is the strongest justification for the establishment of the Special Court, for such serious claims can be examined and determined only by an independent party – not by a party involved in the conflict. That is an additional reason why an independent judicial instance needed to be established outside Kosovo – one that will be composed of international judges and prosecutors and determine the real truth, as well as, if necessary, responsibility.

Witness protection key for success

Let us go back to the names of future Hague indictees, as this is the most intriguing matter for both the domestic and international public. The Western allies have divided tasks within the Special Court project. The Americans have taken charge of investigation and prosecution while the Europeans – apart from securing the funding, as always – have managed the process leading up to the establishment of the court and recruitment of staff. This leads one to conclude that, only a few days before the Court becomes operational (and perhaps unveils indictments), only the Americans know who will be indicted: the Court and its judges will learn about this on the same day as the public.

Since the prosecution did not need to ask for a lot of time to establish itself, as indeed was the case with the Court as a whole – the investigative task force led by Williamson and Schwendiman was eventually simply renamed as the special prosecutorial office – it is claimed that the indictments have long since been formulated, sealed and placed in envelopes. Apart from blanket statements on how Kosovo should cooperate with the Special Court, US diplomats have not yet spoken much publicly about who could be on the receiving end of envelopes containing indictments and arrest warrants which will be sent to Kosovo by Schwendiman.

That was the case – for the first and last time – on May 20, 2015 when future US Ambassador to Kosovo Gregory Delawie testified before the US Senate Committee on Foreign Relations as President Barack Obama’s candidate for this post. On that occasion, he told the US Senate that “Kosovo must respond appropriately to allegations of serious crimes committed between 1998 and 2000”, because “an American prosecutor found evidence that indictable offenses were committed by a small number of former Kosovo Liberation Army senior leaders”.[7] One does not have to particularly emphasize that Kosovo’s current top leaders are persons in whose biographies the KLA appears as a career springboard.

Is current Kosovo President Thaçi on the Special Court prosecutor’s list? The answer to this question is very simple. If the prosecution has secured evidence against the former political leader of the KLA, he will be indicted. If not, he will not be in the dock in The Hague. Although Thaçi was considered the darling of US diplomacy after the war, it is not very likely that the Americans, in the event of credible evidence being offered against him, will grant him amnesty for the sake of political interests, as is claimed by his opponents. The Special Court issue has gone too far for one to expect that politics instead of the Court (i.e. the prosecution) will determine who will be indicted and held accountable for war crimes, and who will not.

A question more significant than whether Thaçi will be indicted concerns witness protection. Witnesses are a key factor in enabling the Special Court to complete its mandate. Judicial practice hitherto has shown that witnesses represent an unprotected and highly vulnerable category in Kosovo. Even witnesses directly protected by EULEX perished, as was the case with Agim Zogaj in the Kleçka case. The protection of witnesses and their families will be the Court’s greatest challenge. If it succeeds, then there is a chance for the actual truth about the Marty Report to be determined. That is the only way for Kosovo to be victorious in this whole story which, having been launched by Del Ponte as a snowball, is being completed in The Hague for the expected avalanche to occur in Pristina. Kosovo needs the truth on what really took place towards the end of the war and thereafter concerning mass kidnappings. That is why one can make a well-founded claim that the Special Court marks a new era in the Kosovar rule of law system – a shift from the time when war crimes went unaccounted for, to one when culprits are held accountable, thus bringing justice for victims and their families.

Read the Marty Report

With regard to the greatest unknown, namely who will be included on the indictees’ list, there is widespread speculation in Pristina that the list was drawn up by Williamson and that Schwendiman has merely inherited it from his American colleague, continuing his work on the gathering and processing of evidence for cases already structured. A source close to Williamson told the author of this text that, towards the end of the latter’s mandate, he asked Williamson about the names to be included on the list of indictees. “Read the Marty Report,” was Williamson’s reply.

This article was at first published by our foreign office Serbia, Montenegro and Kosovo.