MPs in Pristina finally voted to set up the court to try Kosovo Liberation Army guerrillas, but protecting witnesses and assembling strong enough evidence to convict suspects could be formidable challenges./
The new ‘specialist chambers’, as they are diplomatically described in the legislation adopted by Kosovo MPs last week, are expected to be up and running and to take on their first cases in the first half of next year.
They are due to try former Kosovo Liberation Army fighters for their alleged involvement in the killings, abductions, illegal detentions and persecution of Serbs, Roma and Kosovo Albanians believed to be collaborators with the Serbian regime or political opponents of the KLA leadership.
According to BIRN sources close to the prosecution, indictments have already been prepared for a number of senior KLA officials.
But the major challenges for the new court will be to secure witness protection and to obtain the cooperation of all Kosovo’s institutions in areas ranging from evidence gathering to police and judicial assistance.
Jelle Janssens, the Belgian author of the book ‘State-Building in Kosovo’, said that “the biggest problem facing the international community is the lack of trust from the Kosovo population in the witness protection programme provided by the international community”.
According to Janssens, protecting witnesses is hard because Kosovo is so small.
“The reason why the size of Kosovo is important is because law enforcement officials see little opportunities in Kosovo to relocate witnesses. You might give someone a new identity, but the risk of being seen and recognised by someone travelling from one region to another (from Peja to Prizren for example) can be quite high considering the size of Kosovo,” he told BIRN.
“Moreover, law enforcement officials have a feeling that Kosovo is dotted with close-knit communities. That means that everyone knows everyone in a certain community,” he added.
The issue of witness protection has troubled all the courts that have prosecuted former KLA fighters so far.
During the trial of former KLA leader Ramush Haradinaj at the International Criminal Tribunal for the Former Yugoslavia, a number of witnesses were killed and others refused to appear before the UN-backed court. At local courts in Kosovo administrated by internationals, some witnesses have changed their testimonies during trials or have allegedly been intimidated into not testifying at all.
One of the main reasons given for establishing the new court by its international advocates were poor witness protection and the inability of the EU’s rule of-law mission EULEX and Kosovo institutions to deal with high-profile cases.
The law on the specialist chambers passed by the Kosovo parliament says that “special measures” will be adopted to protect vulnerable witnesses, and the EU will lay out its witness protection plan in a series of procedural rules that it is currently drafting.
According to BIRN’s sources within the EU, some of the witnesses who will be called to testify have already been relocated from Kosovo to other countries.
Janssens said that establishing evidence strong enough to convict defendants will be another major issue.
“Proving the alleged crimes will also be a big challenge for the new court, as some alleged crimes are 15-16 years old. But when proven and people are being convicted: managing the public outcry in Kosovo will be the biggest challenge,” he said.
Many people in Kosovo, including some officials – especially those who were part of the Kosovo Liberation Army’s wartime leadership – see the court as an attempt to denigrate what they believe was a legitimate armed struggle against oppressive Serbian rule.
Geert-Jan Knoops, a Dutch professor and lawyer with experience at the International Criminal Tribunal for the Former Yugoslavia, said this means that it could be difficult for the new court to get the assistance it needs from officials in Pristina.
“One of the biggest challenges for this new court will be: to obtain state cooperation,” Knoops told BIRN.
“Without the cooperation of states and particularly the Kosovo administration itself, it will be difficult for the prosecutor and also the defence to investigate a case and – for the defence – to have a fair trial. This is also the experience at other international courts where I work as defence counsel,” he said.
The law on the specialist chambers says that they can request assistance from any Kosovo institution at any time, but it doesn’t outline the possible sanctions for obstruction or non-compliance.
The legislation passed by the Kosovo parliament also says that the new court will have its own budget, which will be independent from the state budget.
The International Criminal Tribunal for the Former Yugoslavia cost around $300 million a year to run, but no estimate has yet been offered for the likely budget of the Kosovo court.
“The financial details of the project also depend on the finalisation of the various ongoing talks concerning the practicalities around the Specialist Chambers such as premises. It further remains the prerogative of the EU member states to eventually decide on the overall budget. It is therefore not possible to pre-empt any decisions,” the EU office in Kosovo told BIRN.
According to Knoops, one of the recurring problems for international courts has been the issue of funding.
“The amount of cases and investigations to be dealt with by such courts depends on its budget,” he said.
“For instance, the International Criminal Court has an annual budget of around 110 million euros. Based on such a budget, the prosecutor can perhaps investigate three to five cases maximum per year. The ‘success’ of the Kosovo court will therefore also in part depend on its budget,” he added.
Meanwhile the Kosovo government pledged to secure funding for the ex-KLA suspects on trial.
On the same day that it approved the Law on Specialist Chambers, the Kosovo parliament also approved the Law on Legal Protection and Financial Support for Potential Accused Persons in Trials Before the Special Court.
According to this law, anyone who is accused has the right to ask for their defence costs to be paid for from the state budget of Kosovo.
Their family members can also get financial support, while defendants who are found not guilty have the right to ask for compensation.
Again, however, concrete figures have not yet been given – just one of several questions about the new court that have yet to be publicly answered.
Kortezi:Marija Ristic, Ivana Nikolic, Petrit Collaku-BIRN
Kosovo’s New War Court: How Will it Work?
After MPs in Pristina voted to set up a new court to try Kosovo Liberation Army ex-guerrillas, BIRN examines how it will operate, who it can prosecute and for which offences./
By Marija Ristic/
The 50-page Law on Specialist Chambers and Specialist Prosecutor’s Office, which was negotiated between the EU and Kosovo, was finally passed this week by the Kosovo parliament after months of bitter arguments, street protests, frenzied media speculation and delays caused by political opposition to the legislation that will see former KLA guerrillas – who are seen as heroes of the liberation struggle in Kosovo – put on trial.
The establishment of the so-called ‘specialist chambers’ comes after the EU’s Special Investigative Task Force in July last year published the findings of its three-year investigation into the allegations initially made by Council of Europe rapporteur Dick Marty, who claimed that crimes against civilians such as kidnapping, torture and organ-harvesting were committed by KLA members during the Kosovo conflict.
The EU task force said it conducted the most comprehensive investigation so far of crimes perpetrated by KLA, explaining that as a result it will be in the position to indict high-level perpetrators when the new court starts operating.
Since then the EU and US have been pushing the Kosovo government to ensure that the necessary constitutional amendments and laws go onto the statute books. They believe the court is needed because the Kosovo judiciary would be unable or unwilling to properly prosecute high-ranking former KLA figures, and the EU’s rule-of-law mission, EULEX, does not have the capacity to do so.
The first vote in the Kosovo parliament failed last month due to lack of support among MPs, but after further pressure, including the threat that the UN Security Council could set its own court to try former KLA fighters, they were finally approved on Monday.
The court, which is expected to be fully functional in the course of six months to a year, will address allegations that KLA fighters were involved in the killings, abductions, illegal detentions and persecution of Serbs, Roma and Kosovo Albanians believed to be collaborators with the Serbian regime or political opponents of the KLA leadership during and after the 1998-99 conflict.
Detentions and organ-harvesting
The new Law on Specialist Chambers and Specialist Prosecutor’s Office establishes and regulates the organization, functions and jurisdiction of the new court.
According to the legislation, which BIRN has seen, the ‘specialist chambers’ will be independent from Kosovo judiciary, but will be part of Kosovo’s justice system. The law says that “specialist chambers shall be attached to each level of the court system in Kosovo: the Basic Court of Pristina, the Court of Appeals, the Supreme Court and the Constitutional Court”. The chambers will have primacy over all other courts in Kosovo.
The court will be located in Kosovo but also in a so-called ‘host state’. The EU has already asked Netherlands to be the host state for the court and it is expected that Kosovo and the Netherlands would soon sign an agreement which will regulate the functioning of the court. According to the law, “the court may sit elsewhere on an exceptional basis if necessary”.
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 KLA were later detained in camps in north 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.
In Article 14 of the legislation, it specifically states that it can also prosecute a crime it describes as “subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by medical, dental or hospital treatment”.
This provision has been specially added to address potential cases of alleged organ-harvesting, after the EU task force concluded that there was evidence that this happened, but only on a very limited scale. “A small number of individuals were killed for the purpose of extracting and trafficking their organs,” the task force report said.
It also cautioned however that investigators “encountered significant challenges in obtaining such evidence”, and suggested that it would be difficult to raise indictments for alleged organ-trafficking.
The new court is widely seen in Kosovo as an insult to the Kosovo Liberation Army as a whole, and to its war for freedom from repressive Serbian rule, but the law says it will deal only with individual criminal responsibility.
Many believe that top Kosovo politicians will end up in the dock, including Foreign Minister Hashim Thaci, who is the former political chief of the KLA. The Council of Europe report levelled serious allegations of criminality against Thaci, which he strongly denied.
But the law makes it clear that no official is out of bounds for prosecution by the new court. “The official position of any accused person, including the head of state or government or a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment,” it says.
International judges, EU funding
The specialist chambers will consist of the two main institutions – the chamber and the registry. The chamber will include a basic court chamber, court of appeals chamber, supreme court chamber and constitutional court chamber. All judging panels at all court levels will be composed of three international judges.
The registry will include a defence office, victims’ participation office (which will represent victims’ interests), 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 and it is expected that the lead prosecutor of the EU’s Special Investigative Task Force, David Schwendiman, will take over once the office is established. His will have a four-year mandate with a possible extension. The prosecution will also have police with the authority and responsibility to any exercise powers given to Kosovo police.
The prosecution can, in exceptional cases, use evidence provided by the International Criminal Tribunal for the Former Yugoslavia and the Kosovo courts. The status, privileges and immunities of those who work for the new court will be the same as the ones already enjoyed by the EU rule-of-law mission in Kosovo, EULEX.
The court’s costs will not be paid by Kosovo, and are expected to be funded by the EU. The annual budget is not mentioned in the legislation. The court’s archive and documents will be held in a dedicated depository outside Kosovo.
When it comes to detention, police will have 48 hours from the arrest to bring the suspect to the judge who will decide on dentition. The detention facilities of the court will be in the ‘host state’ – the Netherlands. There will be also a possibility of bail with release and house detention and prohibition of approaching specific places.
The maximum sentence the chambers will be able to impose is life imprisonment. Defendants can appeal against the initial verdict, but will not have a new trial. According to the law, the so called court of appeals panel “may affirm, reverse or revise judgement” of the trial panel. The law also envisages third-instance appeals proceedings.
Defendants who are found guilty will serve their sentence in prisons in states willing to accept them. The same model has already been used by the International Criminal Tribunal for the Former Yugoslavia, but the new court has yet to sign agreements with countries that might be interested, although is expected that these will all be within the EU.(Courtesan:BIRN)