by Mircea Birca
While many in Kosovo resent the idea of yet another tribunal charged with probing war crimes committed in the late 1990s, pressure to agree to the court is proving irresistible.
The European Union has asked the Dutch government to assist the EU’s special task force in possible criminal proceedings once an investigation into organ-trafficking allegation is complete.
Dutch Foreign Minister Frans Timmermans informed parliament last week about the request for assistance that will take place after the EU’s Special Investigative Task Force, SITF, finishes its investigation into alleged war crimes and other allegations contained in the December 2010 Council of Europe report compiled by Dick Marty.
The ministerial letter, obtained by BIRN, says the EU is still negotiating with Kosovo about the modalities of the criminal proceedings.
Timmermans further said that “the exact role of The Netherland is still unclear,” but what is known is that it will involve “a very a limited number of cases in a limited period of time”.
According to the minister, the new court will not be “an international tribunal for Kosovo based in The Netherlands”, but a special tribunal, while some procedures will take place in Holland, which “could involve the hearing of witnesses.”
The letter further said that The Netherlands would provide assistance requested by the EU, “given the unique Dutch experience in the field of international jurisprudence”.
However, Dutch support remained conditional on the court meeting ”the highest international criminal law standards and the standards enshrined in the European Court of Human Rights.
“These two conditions have to be achieved by the Kosovo authorities, in cooperation with the EU,” the minister noted.
Special court in EULEX mandate:
The European Union and the United States are currently negotiating with Kosovo on the mandate of the court, which BIRN sources within the EU said would be integrated into Kosovo’s own legal system, with special status.
However, tribunal sessions would be held abroad, and the judges, prosecutors and other staff would be international.
BIRN has learned that once the consultation procedure is over, the EU and Kosovo will exchange letters extending the mandate of the EU law mission, EULEX, which expires on June 14. The letters will also clarify the establishment of the special court in charge only of prosecuting charges brought by SITF.
BIRN sources within the European Union, speaking anonymously, said the court’s mandate would effectively be based on the report drafted by Marty.
It is still a unclear whether the new tribunal will deal with organ trafficking, but what is known is that it will deal with the abduction and deportation of about 500 people, mostly Serbs, who went missing after conflict in Kosovo ended in July 1999.
The Marty report further alleged that former commanders of the Kosovo Liberation Army, KLA, members of the so-called Drenica group – including Kosovo’s current Prime Minister, Hashim Thaci, and Shaip Muja, now an MP – ran organised criminal enterprises, including an ad-hoc network of detention facilities on the territory of Albania.
According to the report, they determined “the fate of the prisoners who were held in those facilities”. Some members of the Drenica group are already on trial for war crimes, but Thaci and Muja have not faced any of the charges contained in the Marty report.
Both men have meanwhile denied the allegations in the report.
Christopher Lamont, assistant professor at Dutch University of Groningen,said the new court would “provide a forum in which some investigations launched by the ICTY can be continued.
“While the assumption was that, as the ICTY closed its doors, domestic courts would continue its work, across the former Yugoslavia this has proven more often than not, not to be the case,” he told BIRN.
David Phillips, from Columbia University’s Institute for the Study of Human Rights, agreed that war-crimes prosecution remained a problem area for national courts.
“New states in the Balkans lack the capacity and political will to investigate alleged war crimes, especially when the purported perpetrators are in government or close to the government,” he told BIRN.
Tribunal requires legal changes in Kosovo:
Just as the SITF operates within the Kosovo justice system, and in accordance with the applicable law in Kosovo, the tribunal will do the same.
This would require some legal changes within Kosovo.
Nora Ahmetaj, director of the Centre for Research, Documentation and Publication, which is based in Kosovo, said several options were on the table.
The first is for the President of Kosovo to initiate amendments to the Kosovo Constitution to set up the tribunal.
President Atifete Jahjaga said last Friday that “Kosovo’s institutions have demonstrated their readiness to cooperate with international partners”, and assured Jonathan Moore, director of the US State Department’s Office for South Central European Affairs, that “Kosovo has shown courage and leadership in dealing with its past”.
The second option, according to Ahmetaj, is that the EU and Kosovo sign a letter, “and then ratification is done by the Kosovo assembly”.
She says another option is for the head of a parliamentary group, or a group of MPs, to propose the bill to the Assembly to proceed with the creation of such a tribunal.
“The Assembly will then debate and/or vote for or against a law on setting up the tribunal… [although] knowing the dynamics of different group interests within the Assembly, I doubt this would go smoothly… without external pressure,” Ahmetaj noted.
Several diplomats have told BIRN that pressure from the EU and US is growing on the Kosovo parliament to agree to the tribunal.
However, Jakup Krasniqi, speaker of parliament and former KLA secretary, has warned that any decision to establish a new tribunal, or extend the EU rule-of-law mission’s mandate, must be approved by two-thirds of MPs.
Some voices in parliament strongly oppose any such idea, starting with the nationalistic opposition Vetevendosje movement.
“The establishment of this tribunal would damage the national interest of Albanians for at least the next two years,” Glauk Konjufca, a lawmaker from Vetvendosje, said.
“In all the international media, Albanians would not be portrayed as freedom fighters but as people who engaged in suspicious crimes like organ trafficking,” the MP added.
Ardian Gjini, from the opposition Alliance for the Future of Kosovo, AAK, agreed that establishing such a tribunal posed a dilemma for Kosovo.
“The AAK does not prefer the establishment of such a tribunal. Kosovo was a victim in the war. But we must now decide whether to establish this tribunal or not, or let the UN Security council do so,” Gjini said.
According to Ahmetaj, this is the other option – to let it go to the UN Security Council.
“If the parliament of Kosovo fails to vote for the creation of the tribunal, the issue would automatically go to the UN Security Council, which would give way to the creation of the court, based on Resolution 1244,” she noted.
“That might have other political implications, since the Kosovo authorities would not prefer the creation of such a tribunal to take place through the UN Security Council, as that would be considered damaging for Kosovo,” she concluded.
Protection of witnesses a problem:
According to BIRN sources, one reason why the EU has decided to push for a solution outside Kosovo is the problematic state in Kosovo of witness protection.
In sensitive war-crimes cases held before the ICTY, but also before EU courts in Kosovo, witnesses have often changed testimonies. Several have been threatened, and some were even killed.
Ahmetaj agreed that lack of proper witness-protection measures meant it was inevitable that some “sensitive proceedings, such as hearing of witnesses, will not take place inside Kosovo”. However, that the seat of the court should still be in Kosovo, she said.
The court will also be composed of international staff, as EULEX has already expressed concerns that local judges in Kosovo are not up to handling sensitive cases.
In a joint letter, 17 EULEX judges said that international lawyers should retain the lead role in war crimes, organised crime and corruption cases in Kosovo, rather than handing over powers to local judges this summer, as had been proposed.
“We believe we have not yet reached the stage where the more complex and very sensitive cases, such as war crimes, serious corruption and organised crime, should be completely handed over to the local judiciary,” the letter sent in January to the head of EULEX’s executive division, Mats Mattsson, said.
So far, EULEX has prosecuted only 15 cases related to war crimes.
“If the international community insists that such a court needs to be composed only of internationals, with an appeals panel composed only of internationals, then this speaks volumes about the confidence in the Kosovo judiciary… in general”, Ahmetaj said.
“I see the creation of this court as a double slap in the face, not only of the Kosovo judiciary, but of EULEX, too. The judiciary in Kosovo has failed to deliver justice,” Ahmetaj told BIRN.
Lamont agreed, calling the new tribunal “an expression of complete frustration with the inability of local courts to prosecute difficult cases at home.
“Despite the efforts of the international community, and even the ICTY, to capacity-build local courts, the absence of political will to investigate and prosecute high-profile cases has meant that investigations that are politically problematic, from the perspective of potentially targeting one’s own side in the conflict, are just not a priority for local courts,” he concluded.