In-depth | Justice

Between court models

By - 24.05.2017

The Specialist Chambers to work with a hybrid approach.

As well as knowing exactly how the Specialist Chambers and Specialist Prosecutor’s Office will work, it is also crucial to understand their formation, in order to know exactly what we are dealing with over the next five years. Are these Chambers a domestic court like the Supreme Court of Kosovo? Are they an international court like the International Court of Justice or the International Criminal Tribunal for the Former Yugoslavia? Or are they something entirely different and new?

There are three important issues that we should analyze in order to answer these questions, and understand the model of Specialist Chambers and Specialist Prosecutor’s Office properly: Have the Specialist Chambers and the Specialist Prosecution’s Office adopted a hybrid model? What exactly is a hybrid model, and is this the first time Kosovo encounters hybridity?

An ad-hoc form of hybrid model

The Specialist Chambers and the Specialist Prosecutor’s Office are composed to function in a way that sets them apart from traditional Kosovo Judicial institutions. Notwithstanding the fact that they are foreseen to function within the Kosovo justice system, they enjoy certain privileges that only a part of the international community enjoys in Kosovo.

Founded on Kosovo law but composed of only international judges, the Specialist Chambers and Specialist Prosecutor’s Office have the best (or perhaps the worst) of two categories and as such are to be considered as a hybrid court. Nevertheless, it should be noted that these Chambers lack the most distinguishing feature of hybrid courts — the mixed composition of international and local judges. As such, the Specialist Chambers and the Specialist Prosecutor’s Office are a novelty among existing models of hybrid courts. But even so, it still mixes and matches both domestic and international elements.

Many authors claim that hybrid models adopt the best of both worlds, by serving domestic justice while upholding international law.

What exactly is a Hybrid Model?

Hybrid courts are the latest type of international criminal courts and are characterized by a mix of domestic and international components. As such, these courts seem to be very promising; offering an approach that may address some concerns about pure international justice on the one hand, and pure local justice on the other, while at the same time avoiding the impediments of domestic trials and proceedings.

Whilst all hybrid courts share domestic and international elements, it should still be noted that there are many differences even between different hybrid courts. These type of courts are often referred to as mixed courts, tribunals, internationalized courts, mixed-domestic international tribunals, semi-internationalized criminal courts, hybrid domestic-international courts and so on.

Regardless of the name used to refer to them, most authors on the subject mention the same courts as representative of the hybrid model; the Serious Crimes Panels in the District Court of Dili in East Timor, the Special Court for Sierra Leone, the Extraordinary Chambers in the courts of Cambodia and the Regulation “64 Panels” in the courts of Kosovo. Certain authors also hesitantly group the War Crimes Chamber in the Court of Bosnia and Herzegovina, the Iraqi Special Tribunal and the Ethiopian Special Prosecutor’s Office under the ‘hybrid courts’ model.

However, generally, there are two main categories of hybrid courts. The first category considers the composition of both domestic and international judges as the only defining element of hybrid courts, whereas the second category is concentrates on the legal foundation of the institution, meaning whether the court is established using international or domestic legislation.

This distinction allows for many authors in the field to claim that hybrid models adopt the best of both worlds, by serving domestic justice while upholding international law, being more effective, costing less and providing ownership over cases while not affecting independence and impartiality. Unfortunately that is not always the case.

Hybrid history in Kosovo

The history of Kosovo’s judicial system is not entirely straightforward or easy to understand, especially after 1999. But it is important to take a step back and address the fact that it is not the first time that the hybrid model is mentioned in relation with Kosovo’s judicial system.

It actually all started in June 1999 when the United Nations Security Council announced a resolution that established the United Nations Mission in Kosovo (UNMIK). Apart from many other requirements that UNMIK’s mandate included, its responsibilities were specific in terms of law and order that entailed the detention, trial and punishment of those who had allegedly committed atrocities during the war in Kosovo.

All in all it was pretty clear that aftermath of the war combined with years of discrimination against Albanians had left a crippled judicial system in place.

This was a task way beyond the scope of both UNMIK’s capabilities and local infrastructure given the damage to the latter during the war. There were very few experienced local judges and lawyers at the time given that most of the Albanians bolted from the judiciary during the ‘90s. All in all it was pretty clear that aftermath of the war combined with years of discrimination against Albanians had left a crippled judicial system in place that had no capacity to conduct proper war crimes trials. The ICTY on the other hand made it clear that they could not handle all the cases and were only capable of trying those who had committed the worst atrocities on the widest scale.

That is when the support for the creation of a special court (that would be known as the Kosovo War and Ethnic Crimes Court) grew rapidly. This court would have jurisdiction over war crimes and would focus on the less high-profile offenders that the ICTY did not have the capacity to try.

The Kosovo War and Ethnic Crimes Court was never established either due to financial constraints or political obstacles, or perhaps both. But the history of experimenting with the hybrid model continued when UN authorities issued a series of regulations that enabled the mixture of local and foreign judges to sit at existing local Kosovar courts, while at the same time allowing foreign lawyers to work together with domestic lawyers on these cases. This came to be otherwise known as the ‘Regulation 64 Panels.’

Over the years, this continued with the reconfiguration of UNMIK’s mandate, and the establishment of European Union External Action (EULEX), which had similar responsibilities to UNMIK. Just like UNMIK, EULEX also continued (and still continues) to have a mixture of local and international judges and also adopted local law; up to the extent that it is not in conflict with international human rights norms.

That being said, it is clear that the Specialist Chambers and the Specialist Prosecution’s Office are a result of continuous internal and external failures to establish a decent judicial system in Kosovo. As such, they are continuing to adapt the hybrid model, now with slight changes, hoping that the results will be fruitful. Whether they will or not shall remain to be seen.K

Feature image: Majlinda Hoxha / K2.0.

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