Kosovo Specialist Chambers – Part 1: its Statute and Rules of Procedure and Evidence in a nutshell

A new internationalized tribunal, the Kosovo Specialist Chambers (“KSC”), is poised to open its doors for business: indicting, arresting, prosecuting and so on. The KSC was established to try crimes against humanity, war crimes, and other crimes under Kosovo law committed by persons of Kosovo/Yugoslav citizenship or against persons of Kosovo/Yugoslav citizenship between January 1, 1998 and December 31, 2000 in the territory of Kosovo.1   See Law on Specialist Chambers and Specialist Prosecutor’s Office, Arts. 6-9, 13-15. Though located in The Hague, the KSC is a specialized chamber within the Kosovo Judiciary, much like the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) which is an extraordinary chamber within the Cambodian judiciary.2   “Unlike the other United Nations and United Nations-assisted tribunals, the Extraordinary Chambers in the Courts of Cambodia forms part of the national court structure. It is a Cambodian national court, based on the French civil law system, with special jurisdiction, and with United Nations participation. It is an example of a special chamber within a national jurisdiction…. [It] is a national court of Cambodia.” United Nations Security Council, Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, including, in particular, options for creating special domestic chambers possibly with international components, a regional tribunal or an international tribunal and corresponding imprisonment arrangements, taking into account the work of the Contact Group on Piracy of the Coast of Somalia, the existing practice in establishing international and mixed tribunals, and the time and resources necessary to achieve and sustain substantive results, U.N. Doc. S/2010/394, 26 July 2010, pp. 42-43. The KSC is hybrid in that it has common law and civil law modalities, applying both Kosovo law and international law.  

The KSC, and the Specialist Prosecutor’s Office (which functions as an independent office responsible for the investigation and prosecution of crimes within the KSC’s jurisdiction)3   Law on Specialist Chambers and Specialist Prosecutor’s Office, Art. 35. are staffed with international judges, prosecutors, and officers. Staff recruitment has been going on for some time, though those who do not come from European Union Member States and contributing third States (Canada, Norway, Switzerland, Turkey and the United States) need not apply. As for those who may be interested in defending, I was told last year that we could expect sometime during the summer months of 2017 for the Defence Office, which is part of the Registry,4   Id., Art. 24. to start soliciting applications from defence counsel who wish to be listed for potential appointments.

For some years now this tribunal has been rumored, then openly discussed, then formally negotiated, and now very much a reality. The gestation period has been rather long, for reasons I will explain below. But with much of the groundwork having been laid, it now appears that it may be only a matter of months before accused persons are named, summoned, arrested, detained, and eventually tried.

Judge Ekaterina Trendafilova

Judge Ekaterina Trendafilova, a former Judge of the International Criminal Court is the President of the KSC as of December 12, 2016. The Specialist Prosecutor’s Office is headed by David Schwendiman, a former United States federal prosecutor, who is no stranger to war crimes and mass-atrocity cases, having been a one-time Deputy Chief Prosecutor and Head of the Special Department for War Crimes in Bosnia and Herzegovina. The Registry is headed by Dr. Fidelma Donlon, former Deputy Registrar of the Special Court for Sierra Leone.

The Law on Specialist Chambers and Specialist Prosecutor’s Office, otherwise known as the KSC Statute, was adopted by the Assembly of the Republic of Kosovo on August 3, 2015. Much like the other international(ized) tribunals, the Judges were entrusted with drafting the Rules of Procedure and Evidence (“RPE”). Adopted by the Judges on March 17, 2017, the RPE needs to pass muster by the Specialist Chamber of the Constitutional Court (“SCCC”), the chamber responsible for interpreting the Kosovo Constitution as it relates to the KSC.5   Id., Art. 49. On April 26, 2017, the SCCC found nine of the rules to be inconsistent with the Kosovo Constitution.6   Judgment on the Referral of the Rules of Procedure and Evidence Adopted by Plenary on 17 March 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law no. 05/L-053 on Specialist Chambers and Specialist Prosecutor, 26 April 2017, p. 57. See also Pronouncement of Judgment on the Referral of the Rules of Procedure and Evidence (KSC-CC-PR-2017-01), 29 April 2017, p. 2. Necessary revisions are currently being made by the Judges. Should the SCCC find the revised rules constitutionally compatible, the RPE will come into force seven days after the SCCC’s determination. Directives no doubt are also in the making.

While all of this is happening, the Specialist Prosecutor’s Office is busy investigating and preparing the indictments – though I would not be surprised if sealed indictments already exist.

Now that we have the Statute and a draft RPE with all but nine of the rules having been found constitutional, a brief analysis of the KSC based on its founding documents may be worthwhile.

Here, I will merely provide the context for establishing the KSC. In the posts to follow, I will explore the Statute and the RPE as currently formulated.

Why the KSC was established

In 2008, Carla Del Ponte, Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia (“ICTY”), published a set of memoirs with claims that leading commanders of the Kosovo Liberation Army (“KLA”) were reportedly harvesting and trafficking in human organs taken from Serb prisoners during the end of the armed conflict in Kosovo.7   Dick Marty, Rapporteur, Council of Europe Parliamentary Assembly Committee on Legal Affairs and Human Rights, Inhuman treatment of people and illicit trafficking in human organs in Kosovo, AS/Jur (2010) 46, 12 December 2010 (“Marty Report”), Explanatory Memorandum by Dick Marty, para. 1. Shocking as these claims were, and the fact that there was no official follow-up, the Council of Europe Parliamentary Assembly’s Committee on Legal Affairs and Human Rights appointed Dick Marty as Rapporteur and instructed him to propose a preliminary draft resolution and to draw up a Report.8   Id., para. 2. According to the Report, released in 2010, these alleged crimes by the KLA were never properly investigated by any national or international authorities,9   Id., para. 3. as the international organizations in Kosovo at the time favored a pragmatic political approach – restoring some semblance of order as quickly as possible, while avoiding anything that could destabilize the region – forgoing principles of justice and accountability.10   Id., para. 7; Draft Resolution, para. 10.

Marty attributes the lack of an international investigation to the “strong feelings” in reaction to the crimes alleged to have been committed by Serbian forces and the “attitude of certain international agencies,” that one side of the conflict (Serbs) would be regarded as the perpetrators of crimes and the other side as innocent victims (Albanian Kosovars).11   Id., Draft Resolution, para. 13.

All the indications are that efforts to establish the facts of the Kosovo conflict and punish the attendant war crimes had primarily been concentrated in one direction, based on an implicit presumption that one side were the victims and the other side the perpetrators. As we shall see, the reality seems to have been more complex.12   Id., Explanatory Memorandum by Dick Marty, para. 3.

The ICTY had conducted an initial examination of possible organ trafficking, but ended up dropping the investigation.13   Id., Draft Resolution, para. 8. The investigation that had been done was supposedly “fairly superficial … with a standard of professionalism that prompts some bewilderment.”14   Id., Explanatory Memorandum by Dick Marty, para. 3.

Marty lamented this selective justice, “with impunity attaching to many of the crimes that appear, based on credible indications, to have been directly or indirectly the work of top KLA leaders.”15   Id., para. 7. He asserted that there is “concrete and convergent indications” that Serbs and some Albian Kosovars considered to be traitors or collaborators were held in secret detention centers under KLA control in northern Albania, and were subjected to inhumane and degrading treatment, before ultimately disappearing.16   Id., Draft Resolution, para. 3. According to investigations carried out by the European Union Rule of Law Mission in Kosovo (“EULEX”), gruelingly, organs were reportedly removed from prisoners and taken abroad for transplants.17   Id., para. 4. The investigations by EULEX indicated that these alleged acts by the KLA are linked to organized crime (and possibly to some in positions of power in Kosovo), and continued from about 1998 to 2010, possibly even later.18   Id., para. 5, Explanatory Memorandum by Dick Marty, para. 7.

The Kosovo and Albanian authorities appeared to be non-cooperative in the investigations that have already taken place, with the Albanian authorities intimating that they had no reason to open their territory to inquiry as they were not affected by the conflict.19   Id., Explanatory Memorandum by Dick Marty, para. 3. Considering this non-cooperation and the seriousness of the crimes purported to have taken place, the Draft Resolution by Marty advocated for the drafting of an international legal instrument to prosecute the perpetrators.20   Id., Draft Resolution, para. 20.

Acting on Marty’s Report, a Special Investigative Task Force (“SITF”) was set up in 2011 by the European Union to conduct a full-scale criminal investigation.21   Statement of the Chief Prosecutor of the Special Investigative Task Force (“SITF”), 29 July 2014, p. 1. In 2014, the SITF concluded its preliminary investigation and announced that there was sufficient evidence to file indictments. It found that there was compelling evidence that elements of the KLA:

Intentionally targeted the minority populations with acts of persecution that included unlawful killings, abductions, enforced disappearances, illegal detentions in camps in Kosovo and Albania, sexual violence, other forms of inhumane treatment, forced displacements of individuals from their homes and communities and desecration of churches and other religious cites…. [and] engaged in a sustained campaign of violence and intimidation through 1998 and 1999 directed at Kosovo Albanian political opponents, which also included acts of extrajudicial killings, illegal detentions, and inhumane treatment.22   Id., p. 2.

The SITF concluded that “these crimes were not the acts of rogue individuals acting on their own accord, but rather that they were conducted in an organized fashion and were sanctioned by certain individuals in the top levels of the KLA leadership.” Due to the widespread and systematic nature of these alleged crimes, the SITF recommended prosecutions for crimes against humanity, war crimes, and certain violations of domestic law against several KLA senior officials.23   Id.

While Marty’s Report focused on organ harvesting and trafficking, the SITF found that the evidentiary basis for these allegations was not sufficiently strong for an indictment based on these acts. The SITF Chief Prosecutor clarified: “by no means, have we dismissed the validity of these allegations.” It was just challenging to obtain evidence for these alleged crimes.24   Id., p. 3.

After exchanges between the Kosovo authorities and the European Union, the Kosovo Assembly adopted Article 162 of the Kosovo Constitution and the Law on Specialist Chambers and Specialist Prosecutor’s Office, which provide for the establishment of the KSC within the justice system of Kosovo.

Next – a look at the organic structure of the KSC

The Statute and RPE of the KSC are interesting and provide for a unique procedure. Even though the KSC is not yet fully operational, much can be gleaned from looking at the founding documents – especially when compared and contrasted with the founding documents and jurisprudence from other international(ized) tribunals. In the next post, I explore the Statute. By all measures it is interesting, innovative, and instructive.

 

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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