A new era for justice in Kosovo
Kosovo’s transition from 2016 to 2017 will not only mark the passage from the old year into the new one. As of January 1, the Special Court seated in The Hague will become operational. It will be in charge of examining suspicions of crimes committed mostly against Serbian civilians, as well as civilians of other nationalities during and after the Kosovo war. The story of how this court has been established is more or less known to everybody. Following the sensational revelation by former ICTY Chief Prosecutor Carla del Ponte, published in her 2008 memoirs (“The Hunt“) – namely that The Hague Tribunal’s Prosecution had had knowledge of mass kidnappings during the late stages of the Kosovo war and thereafter – Council of Europe’s Special Rapporteur Dick Marty has carried out an investigation which in late 2010 resulted in a shocking 27-page report1 which claimed that around 500 civilians (some 400 non-Albanians, mostly Serbs, but also Romani, as well as around 100 Albanians) were 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 has adopted the report in early 2011 thus providing it with major international credibility, as it was backed not only by the largest European organization but also by the body that is considered the exclusive human rights protector on the continent. As 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 for investigating these claims and examining them in 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 a special Kosovar court would be established which would nominally be part of the Kosovo judicial system but operate outside of Kosovo, and would only hire international judges and prosecutors. The Hague, as the international judicial capital, was defined as the seat of the court. Naturally, the funding for its operation was secured by the European Union, whereas its reins (especially pertaining to the prosecutorial domain) are held by the Americans. The saying about justice being slow but attainable has been confirmed on this occasion, as well. It took 6 years after the adoption of the Marty Report during a parliamentary assembly of the Council of Europe for the Special Court to be established. It is estimated that the Special Court will be operational for around 8 years, including the appeals process.
In his report, Marty directly points 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, as the most responsible parties for crimes the Special Court will be dealing with. ”We have found that the Drenica Group had as its chief – or, to use the terminology describing an organized criminal network, its ‘boss’ – a renowned political operator and probably the most internationally recognized person within the KLA, Hashim Thaçi,“ Marty stated.
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 specialized councils and specialized prosecution 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 staff is of a temporary nature; they 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 political opponents from Albanian ranks.
The “Yellow House” case in Northern Albania where the organs of the kidnapped persons allegedly were extracted, is also 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.2 This was made possible only in August, after the required alteration of the Kosovo Constitution.3 According to the law, the Special Court will try cases in concord 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. Archives and the court’s case documents will be kept outside of Kosovo, as will be 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 merely an international court which Kosovo will able to influence to the extent that it affects the International Court of Justice (namely, no influence whatsoever). Still, 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 was the case with previous international tribunals, as well as to bring about the belief that this was a common Kosovar-international project for determining the truth on one of the most shocking international reports on what took place during and after the Kosovo war.
The question arises why the court’s creators (USA and EU) have opted for such a judicial format, as opposed to the traditional one which operated through the establishment of international special courts 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 it is an Albanian one, has shaped this court’s format to a large extent. Namely, such a setup 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 forcing the tribunal format as a model for the establishment of a court in charge of Kosovo, would help create space for Russia to influence the court’s mandate and personnel, including Russian judges who then could face some of the present-day Kosovar politicians in court. A compromise was reached in establishing the court by the state of Kosovo but – for the purpose of avoiding potential accusations of partiality, as well as for the sake of witness protection – dislocating 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’s existence, and regardless of whether the Marty Report is 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, one should bear in mind that the international community 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 mainly created a great deal of animosity toward this court in the Kosovar public, thus it is safe to assume that the court will have to count on a hostile environment in the state that had formed it. Do the court and its founders need to be concerned with such a reception given the fact that during his Belgrade visit in November, lead 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“?4 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.
Kosovo will face harsh times when indictments concerning crimes addressed by the Council of Europe’s report are brought before the Special Court. When considering the relation and approach Kosovo should assume toward the Special Court, the first matter which needs to be settled by politicians and parties, as well as the media and citizens, should be linked with the question why it was decided in favor of international judiciary taking over the jurisdiction on determining the actual truth about the Marty Report which, according to the principle of territorial and actual jurisdiction falls under Kosovo’s competencies? The answer to this question is simple: Kosovo has failed to do its homework; it did not display political resolve in initiating an independent and efficient investigation about 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 internal jurisdictions 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 toward 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 record of a state that is unwilling or incapable of dealing with them. If, by any chance, Kosovo had taken initiative on its own, had it formed an investigative team or a special court 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 in this matter. However, Kosovo has 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 concrete names of the KLA leadership’s top echelon and, as a result, a complete international undertaking to establish the Special Court cannot be concluded in a way other than with a “big bang”, namely by issuing indictments against everyone that is mentioned in the Marty Report. The other school claims that the establishment of the Special Court could not have been avoided, as the Marty Report was no longer that of an individual but a report which was backed by the Council of Europe, but that the indictees will include regional KLA commanders who were in charge of the areas where mass abductions and disappearances had occurred. Both standpoints confirm the impression that no similar or previous international judicial project was veiled in secrecy to the extent that is the case with the Special Court, especially when bearing in mind the identity of those that it was established for.
Names indeed do 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 challenge which the court faces consists of securing evidence and witness protection. Although he refers to “insiders”, in his report Marty cites only anonymous witnesses, which is understandable considering the lack of security they are facing in Kosovo. Rumor has it that during their work on the report he and his modest team consisting of only a few investigators mainly used foreign intelligence agencies’ information and sources on the widespread abductions towards the end of the Kosovo war and after it. It is also claimed that Marty, due to his concern for the security of the witnesses he had provided, has 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, due to witness protection, had set up the investigation in such a way that his enormous apparatus of investigators knew only about pieces of the mosaic, whereas only this experienced prosecutor – known for having participated in the elaboration of The Hague indictment against former Serbian leader Slobodan Milosevic – had complete insight. Rumors, which are difficult to be independently confirmed, claim that statements confirming the indictment were made by some 400 persons and 30 of them would probably testify before court openly or as anonymous witnesses, as well as that – 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 considering that witnesses are the “Achilles‘ heel” of the Kosovar judicial system, as was previously assessed by the Kosovo Humanitarian Law Center, 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 smoothly and efficiently do its job. To say the least, Kosovo has had a very bad experience with international dispensers of justice. Since the war and to this day, the complete Kosovar judiciary was and is under direct international administration. UNMIK was first exclusively in charge of prosecuting the most serious criminal offenses; 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 made the smallest step during the past 17 years in order to shed light on the case addressed by the Marty Report, which is now under the Special Court’s jurisdiction. At the same time, everyone had known 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 come to terms with the fate of their loved ones and are still demanding truth, justice and responsibility.
There is also the question why these two international mechanisms have failed in shedding light on the alleged occurrence of one of the most serious criminal offenses which took place during the Kosovo war. Seeking an answer to it 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 in 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, as the largest (and most expensive) civilian mission in the history of the EU was such a failure that even the greatest EU supporters in Kosovo are wondering how a major and successful organization such as the EU could give birth to such an unsuccessful project. During its whole 8-year mandate, EULEX was directly in charge of what the Marty Report addresses but it made no effort whatsoever to shed light on this case. Instead of having the implementation of best European practices and “Europeanization” of Kosovo’s judiciary as its goals, EULEX – due to its incompetence, 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 referred to as a total failure, as there is someone who is even weaker in this domain: the local Kosovar judiciary. As for the Special Court, it needs profiles of prosecutors and judges from The Hague Tribunal for the former Yugoslavia, rather than amateurs – many of whom 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, perhaps even a succession of generations in Kosovo’s political scene. 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 had happened to the Democratic League of Kosovo (LDK) following the death of the “father of the nation” Ibrahim Rugova in 2006. 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. PDK’s decline would inevitably open up space for its political opponents, providing a chance to the largest (many would argue, the only true) opposition party – Vetëvendosje (Self-Determination) – to take over power, along with other, smaller opposition parties.
In normal democracies, a political party’s contribution toward the 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 the upcoming 2017. It could “knock out” the main Kosovar party, sending it from the driver’s to the back seat, or 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 constitutional changes and the adoption of the Law on Special Court, arguing that this would lead to indicting 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 thus 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 enable it another term in power. However, these calculations could be spoiled by Schwendiman if he opts against waiting for the Kosovar parties to complete their pre-election configuration aimed to alleviate consequences of the Hague tsunami, and addresses sealed envelopes with arrest warrants to Kosovo as early as in 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 other persons should appear before the court, besides those whose names are mentioned by Marty in his report, as it is possible that the secret, years-long investigation could have gone in a new direction and led to additional names. It could also prove 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, has stated5 that the investigation led by him has 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. “The Special Investigative Task Force has found compelling evidence to file an indictment against certain former senior officials of the Kosovo Liberation Army (KLA). Investigative findings are largely consistent with the Council of Europe report of 2011,“ 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, has 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 claims about hundreds of persons who were murdered with the purpose of extracting and trafficking their organs to be “totally unsupported“ – establishing that there could have been only a “handful” of such cases.
Apart from the unknown 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 such monstrous claims, namely that the abducted civilians’ organs had been extracted and were subject to organ trafficking. This, perhaps, is the strongest justification for the establishment of the Special Court, for such a serious claim 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 of Kosovo – one that will be composed of international judges and prosecutors and determine the real truth, as well as responsibility, if necessary.
Witness protection key for success
Let us go back to the names of future Hague indictees, as this is the most intriguing matter both for the domestic and international public. Western allies have divided tasks within the Special Court project. Americans have taken over the investigation and prosecution while 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 the indictments), only the Americans know who will be indicted and that the court and judges will learn about this on the same day as the public.
Since the prosecution did not ask for plenty of time for its establishment, as was the case with the court – the investigative team led by Williamson and Schwendiman was eventually just 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 spoken much publically yet 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”.6
One must not particularly emphasize that Kosovo’s current main leaders are persons in whose biographies the KLA represents a 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 case that credible evidence is provided 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 is related to witness protection. The witnesses are a key factor for the Special Court to complete its mandate. The hitherto judicial practice has shown that witnesses represent an unprotected and highly vulnerable category in Kosovo. Even witnesses directly protected by EULEX had 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 was launched by Del Ponte as a snowball, only for it to be completed in The Hague and 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 of 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 has been created by Williamson and that Schwendiman merely inherited it from his American colleague, continuing his work on the gathering and processing of evidence for already structured cases. 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 that will be included on the list of indictees. “Read the Marty Report,” was Williamson’s reply.
Heinrich Böll Stiftung, 29.12.2016.