This month saw Kosovo president Hashim Thaçi resigning from office following the confirmation of his indictment before a specialist court in The Hague. The document alleges criminal responsibility on Mr Thaçi’s part for war crimes and crimes against humanity committed during the Kosovo war of 1998-2000, specifically in the context of his former role as a founding member and leading functionary of the ‘Kosovo Liberation Army’. Amnesty International welcomed the news, claiming victims of violence and persecution over the course of the conflict had finally been brought “one step closer to long-awaited justice”.
The case is one of the first to be brought before the Kosovo Specialist Chambers, a temporary court which was established in 2015 as a formal part of the Kosovar judiciary. Far from being a standard domestic criminal court, however, its origins lie, firstly, in concerns voiced by the Council of Europe in a 2011 parliamentary report on ‘Inhuman Treatment of Humans and Illicit Trafficking in Human Organs in Kosovo’ during the Kosovo war, and, secondly, in the international call for the investigation of these concerns by a specialist criminal tribunal. The Kosovar legislative assembly paved the way for creating the Specialist Chambers by means of a constitutional amendment, with jurisdiction over crimes committed in the relevant three-year period of conflict. In supporting this process, the international community sought to provide a means of prosecuting war criminals where previous international courts had failed – notably the International Criminal Tribunal for the Former Yugoslavia (ICTY).
International Criminal Courts
International efforts to prosecute war criminals are, of course, not a new phenomenon. The post-WWII Nuremberg trials of 1945 and 1946 set a precedent for specialist criminal tribunals in the aftermath of armed conflicts around the world. In the 1990s, for example, the United Nations set up ad hoc courts to adjudicate upon the events of the Rwandan genocide and the Yugoslav wars. Beyond these temporary institutions, the International Criminal Court (ICC) was conceived under the Rome Statute upon its adoption in 1998, with jurisdiction over criminal cases under international law.
Despite multi-national cooperation in this regard, the effectiveness of international courts continues to be a contentious subject. Up until the expiry of its 24-year mandate in 2017, the International Criminal Tribunal for the Former Yugoslavia faced severe obstacles to its investigations. The Tribunal’s work was allegedly obstructed by authorities in the regions subject to its jurisdiction, with some refusing to recognise this jurisdiction altogether. In particular, obtaining reliable testimony from local witnesses without exposing them to the risk of retaliation proved to be difficult for the court’s prosecutors. Furthermore, insufficient evidence and the complexity of the cases severely impacted the ICTY’s ability to reach verdicts, leading many to question its effectiveness. After all, the significant lack of finished work on the Kosovo war was a major motivation for the creation of a new, specialist court in the Kosovo Specialist Chambers.
More fundamentally, however, international courts regularly face outright opposition to their legitimacy. Due to their very nature as international organisations, courts like the ICC depend on being recognised by sovereign member states as a source of authority. Several countries have not signed or ratified the Rome Statute and, consequently, do not directly recognise the ICC’s jurisdiction. This includes the USA, with members of the current administration expressing a clearly hostile attitude towards the court’s work. Furthermore, the ICC has been repeatedly accused of disproportionately targeting citizens of African signatory states, and even of being an inherently biased, western imposition upon the continent. With several African countries threatening to withdraw membership and recognition of the court, support for its continued operation and enforceability of its judgments seems somewhat uncertain.
In a similar vein, the ICTY was perceived by some as an illegitimate intrusion upon the former Yugoslav states’ sovereignties, with regional groups celebrating those indicted by the Tribunal’s prosecutors as war heroes or condemning it as a partisan institution. Given the persistence of post-war ethnic tensions over the course of its mandate, the ICTY’s president, Judge Carmel Agius, insisted that its role had only been to find out the truth about war crimes, and that it never extended to offering reconciliation between affected parties. Nonetheless, it seems as though a lack of local support was a significant obstacle to the Tribunal’s investigations, as well as to any role it might otherwise have played in maintaining peace in the region.
The Kosovo Specialist Chambers’ position
Taking into account the shortcomings of courts like the ICC and the ICTY, commentators have been cautious in their response to the proceedings initiated before the Kosovo Specialist Chambers, despite it not formally being an international court. Prior to former president Thaçi’s indictment being confirmed, the Specialist Prosecutor’s Office had already issued a statement alleging that Mr Thaçi and another defendant repeatedly attempted to obstruct the court’s work. In addition to these attempts, Kosovar lawmakers have sought to repeal the court’s founding legislation in order to overturn it entirely. Even if this has not yet been successful, it seems as though the KSC is likely to face procedural difficulties of similar gravity to those experienced by the ICTY.
Moreover, there does not appear to be overwhelmingly strong support for the court’s work among the broader Kosovar population either. Despite their formal rooting in the domestic legal system, the KSC and their panel of international judges operate from The Hague, with relatively little outreach to Kosovo itself. Given the extent to which EU member states and other countries supported its creation, the court may risk appearing to be a purely international court, a foreign imposition upon the Kosovar judiciary, and lose local legitimacy as a result.
It has been suggested that ethnic Albanians in Kosovo take the charges brought against members of the ‘Kosovo Liberation Army’ by the KSC as an indication of the chambers being inherently biased against their community. As with the ICC and ICTY, a lack of local support could prove detrimental to this court’s effectiveness in fulfilling its mandate. Besides lengthening the path to justice for many victims, this would further jeopardise any remaining potential for reconciliation between the conflicting parties.
Despite their special status as a Kosovar judicial institution, the Specialist Chambers thus face a number of considerable challenges to their effectiveness which were shared by their international predecessors. Whether or not they can overcome them and establish the model of a hybrid court as the future of international criminal justice remains to be seen.