An international criminal tribunal has been set up to prosecute the victors of the 1999 war in Kosovo. Yes, you read that right. A court has been set up with a mission to investigate and bring to justice those members of the victorious Kosovo Liberation Army (KLA) allegedly responsible for heinous human rights violations and atrocities committed against ethnic minorities and political opponents in the region. An outgrowth of specialist chambers set up by Priština last summer, the lumpily named Kosovo Relocated Specialist Judicial Institution (KRSJI) will be hosted in The Hague. This marks the first time that a special court has been established with the express purpose to prosecute the victors of a war. But can it succeed?
Perhaps the most stubborn, unyielding criticism of international criminal tribunals is that they suffer from victors’ justice. Nuremberg only prosecuted Nazi crimes — and not the ghastly crimes of the Soviet Union or the Allied Force’s carpet bombing of Dresden; The International Criminal Tribunal for Rwanda only prosecuted the Hutu perpetrators of the genocide, leaving all others — including some who subsequently enjoyed political power — to enjoy impunity; the International Criminal Court (ICC) generally prosecutes one side of a conflict — and its targets are typically on the losing side. But in the case of Kosovo, there has been a push to ensure that new structures are created to combat one-sided accountability and to ensure that victors’ justice is itself vanquished.
The product of long-term negotiations aimed at integrating Kosovo into the European Union, the KRSJI will focus exclusively on KLA combatants, many of whom are revered in Kosovo. Precisely because of the controversial nature of prosecuting widely celebrated figures, all sides agreed that the tribunal should be housed away from the scene of the war. According to the government of the Netherlands,
prosecuting KLA members “is a sensitive issue in Kosovo. Possible suspects may be seen by sections of Kosovan society as freedom fighters, and witnesses may feel threatened in Kosovo. This is why the option of trying cases outside Kosovo was explored.”
The court itself is a sort of hybrid of a hybrid tribunal. Rather than having an international-domestic mix between the various elements — judges, prosecutors, staff, funding, etc., the EU will foot the entire bill, all of the judges will be internationals, and everything else will ostensibly come from Kosovo. Notably, it remains unclear who will be responsible for witness protection, especially given the fact that many witnesses have already been moved out of Kosovo.
As noted above, the special court will be based in The Hague — in some undisclosed location until the former Europol headquarters can be retrofitted with a courtroom. Some, however, don’t see it as an international tribunal at all. Because it was set up under Kosovan law, rather that under international law or some mix of the two, the government of the Netherlands has insisted that the KRSJI “will not be an international tribunal, but a Kosovan national court that administers justice outside Kosovo.” Again, however, all of the funding and all of the judges will be come from outside of Kosovo.
The big question is whether the tribunal — international or not — can manage to successfully pursue and prosecute KLA perpetrators. This is an undoubtedly daunting task. Not only is the KLA broadly supported in Kosovo but some of its most senior members remain in positions of political power. For one, Kosovo’s former Prime Minister and its current Foreign Minister is Hashim Thaçi, a founder of the KLA as well as its political chief. Thaçi was named in a 2011 Council of Europe report as a being involved in organized crime networks that committed war crimes and were involved in the sex trade as well as and organ trafficking. Unsurprisingly, Thaçi, who has hired a British PR firm to improve his image and profile, was less than supportive when asked about his cooperation with the KRSJI:
We’ll do our utmost not to allow for the perpetrators of crimes [Serb forces] and the victims of crimes to be equals in the book of history … This was a defensive war and I expect nothing else but this will be proven.
Not only has Thaçi declared that the allegations against KLA members were “groundless” but, according to some reports, he also at one point threatened to release the names of all ethnic Albanians who assisted the Council of Europe investigation.
There is no doubt that Thaçi does not trust the tribunal and sees it as the work of meddling Western powers. It will thus be fascinating to see how those powers negotiate their relations with him. According to one European diplomat,
“The sad thing is that the United States and European countries knew 10 years ago that Thaçi and his men were engaged in drug smuggling and creating a mafia state. The attitude was, ‘He’s a bastard, but he’s our bastard.’”
This points to the possibility of the KRSJI suffering from the very same affliction that often undermines the independence and impartiality of other tribunals: relying on the cooperation of actors involved in the perpetration of crimes under investigation or with strong political interests in protecting perpetrators. If it can’t receive that sort of cooperation from Priština, the special court may end up empty handed or with only a few small, and symbolic, scapegoats in its dock.
At the same time, there are those who believe that, even if KLA perpetrators were brought to justice, some actors remain outside the reach of accountability. In a piece addressing the creation of the Kosovo tribunal last summer, Aidan Hehir insisted that the institution needed to address how the United Nations Mission in Kosovo (UNMIK) as well as a NATO forces were implicated in crimes perpetrated in Kosovo:
The offences under [the Kosovo tribunal’s] jurisdiction were committed by agents acting with the sometimes overt and sometimes tacit support of external actors, namely NATO and the UN Mission in Kosovo (UNMIK). They are the same actors that assumed executive authority in Kosovo for half of the three-year time period under examination. The extent to which these actors will be held responsible for sponsoring and / or tolerating criminality conducted by the KLA will have a profound effect on perceptions of the Court’s legitimacy and thus societal stability within Kosovo…
… Investigating crimes committed by the KLA is obviously a welcome development in principle. The Court must, however, acknowledge the extent to which international actors tacitly, and at times overtly, supported the growth of the violent criminal network now under investigation. A narrow focus by the Court will isolate the perpetrators of the criminality from the enabling environment in which they operated, thereby obscuring the role played by the international community in the commission of these crimes.
The creation of the KRSJI is an important, probably even unprecedented, development. But its establishment is just the beginning and places the battle against victors’ justice in Kosovo firmly at the starting-line. What happens in the months and years to come will determine whether this novel body can successfully turn victors’ justice on its head.
I think it really depends on how you characterise the victor’s justice critique. To my mind, the critique is less about winners and losers, and more about the powerful and the weak. Kosovo is still a weak member of the international community and therefore creating a tribunal that targets crimes committed by the KLA is far from revolutionary; rather, it is very much in keeping with the narrative of Western control over how much justice is acceptable with respect to different conflicts around the world.
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This sui generis Court already appears riddled with paradoxes and shortcomings, even before it has begun to function. What is emerging here is a special court that will be formally part of Kosovo’s judicial system, at least in theory, will be staffed with foreign judges selected by the EU, will sit in The Hague, will be governed by special rules, and will be empowered to assess the constitutionality of its own rules and its own existence. The issue here is not whether this Court will have the capacity to successfully pursue and prosecute leaders of the KLA. It is the repetitive nature of these types of trials. The ICTY and UNMIK/EULEX War Crimes Panels in Kosovo had full capacity to investigate and pursue leaders of the KLA, and did that to a far greater extent than perceived (including the partial, albeit controversial, retrial in Haradinaj Case). The issue of witness intimidation is blown out of proportion, at least in my experience with the trials at the ICTY. Most importantly these types of domestic special courts are problematic irrespective of the motives that justify their creation. Precisely because they imply that certain crimes or criminals shall be treated differently from others, they breach the equality principle and justify doubts about their impartiality. The new court therefore appears poised to sit uneasily with traditional notions of sovereignty, which quintessentially includes the exercise of judicial authority as a central characteristic of statehood. Thus, this new legal mechanism will end up undermining Kosovo’s sovereignty and fragile democracy.
Hi Mark, Thank you for this once again excellent post. But I wonder how you would qualify the ECCC and the STL? They do not seem to fit exactly within the “victor’s justice” narrative.
Many thanks for your comment and kind words, AS.
Clearly not all tribunals amount to victors’ justice. The ECCC is probably closer to it than the STL but I don’t think tribunals should be painted with such a broad brush. Not all suffer from victors’ justice in the same ways or to the same extent. And I would agree that it would be hard to sustain a victors’ justice criticism for the STL.
All the best,
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