Perspectives | Specialist Chambers

Demands to relocate the Specialist Chambers are unlikely to be met

By - 26.04.2021

Court should focus on other ways of increasing bottom-up justice.

On March 24, Gani Shehu, the president of the Atlantic Association of Kosovo, addressed an emotive letter to U.S President Joe Biden requesting the relocation of the Kosovo Specialist Chambers (KSC) from The Hague to Kosovo.

In his letter, Mr. Shehu recounts the role that the president’s son, Beau Biden, played in the rebuilding of justice institutions in post-conflict Kosovo. He further reminds President Biden of the president’s own benevolence toward the ex-Kosovo Liberation Army (KLA) leader, Hashim Thaçi, who currently stands accused of war crimes before the KSC.

Mr. Shehu’s demand to uproot the KSC is based on an accusation that the court is currently misused by unspecified EU member states that seek to subvert the U.S.-Kosovo relationship. A relocation of the chambers, Mr. Shehu argues, would ensure its independence and allow Kosovo to “administer justice and its judicial system herself.”

His demand is not new among Kosovo’s elite. Politicians from different sides of the political divide have repeatedly called for the localization of the KSC within the territory of Kosovo. But what would this localization actually entail? And, more importantly, would this transfer facilitate or hamper the goals of the KSC?

Localizing the KSC in theory

The history of international tribunals indicates that they are created to punish perpetrators and reconcile communities. 

Reconciliation is the ultimate and oft-elusive benchmark of transitional justice; it entails an overcoming of grievance and a coming together of communities and societies torn by war. 

For any reconciliatory effort to be successful, local ownership for accountability mechanisms should be put center stage, as it is only through the inclusion of the affected society in transitional justice processes that an actual impact can be made. This entails the participation of local groups and persons, such as civil society organizations, to tribunals’ proceedings. 

However past international tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), placed little emphasis on reconciliation and focused more on punishment.

The hybrid nature of the KSC was intentionally designed in a way intended to address some of the shortcomings of such purely international tribunals, by lending some degree of local ownership to the countries in question. 

The KSC has manifestly failed in creating any semblance of popular support from the subjects under its purview.

While the institutional design of hybrid courts is not set in stone, but rather decided upon in an ad hoc manner, there are two common denominators in the design of existing hybrid tribunals: that they are located in the country over which they have jurisdiction and that their staff is made up of both nationals and internationals. 

In the case of the KSC, neither of these two basic parameters is fulfilled. In spite of it being rooted in the domestic legal system of Kosovo, the nature of the chambers remains primarily remote.

In theory, therefore, holding its trials on site (whether partially or fully) and incorporating Kosovo nationals within its staff appear to be logical demands on the KSC, particularly if the institution claims to truly care about the local. This claim currently seems to be more in word than deed, as while the KSC pays tribute to the concept of local ownership in its mission statement and through its outreach activities, this appears to be merely a façade. 

The work of the KSC thus far has been primarily concerned with retributive justice, i.e. backward-looking punishment that seeks to be proportional to the crime committed. Moreover, the KSC has manifestly failed in creating any semblance of popular support from the subjects under its purview, which signifies a lack of concern about the local. 

In its myopic chase of the “big fish” who have allegedly fallen through the cracks of international justice one too many times, the KSC seems to have abandoned its broader responsibilities of norm-penetration and reconciliation among the affected communities. 

Practical problems of relocation

Talk of the relocation of the KSC to Kosovo has unsettled its Head Prosecutor, Ekaterina Trëndafilova, who views these efforts as attempts to undermine the court’s proceedings. From a prosecutorial perspective, Trëndafilova’s concerns are well-founded.

Were the chambers to be uprooted, a number of potential dangers could plague its retributive functions, particularly if this transferal would include the incorporation of nationals in the KSC’s structures. 

Firstly, the long history of witness intimidation within Kosovo could deter future witnesses from coming forward. The KSC is already dealing with the damages of the September 2020 document leak, which shook up the trust of current witnesses and arguably sparked a new wave of skepticism about the ability of the court to offer its witnesses due protection. A relocation of the chambers would exacerbate this already diminished trust and hamper its work further. 

Secondly, a national KSC is in danger of facing the same vetting challenges that permeate Kosovo’s domestic judicial system. The prosecutorial system and the judiciary in Kosovo inspire little trust among the country’s citizens, due to the omnipresent belief that such institutions are politicized and mired in corruption. If the KSC were to relocate, the vetting process risks becoming dubious and untransparent, in the same way that Kosovo’s domestic judiciary currently is. 

The court is seen as a foreign imposition, as the impetus for its establishment was international pressure, rather than local demand.

In spite of the challenges to its retributive functions, uprooting the KSC at this stage would also be unlikely to bring about any significant positive changes regarding reconciliation on the ground. 

Theoretically, bringing the chambers closer to home, in both a literal and metaphorical sense, could increase the claim of ownership by Kosovar Albanians, but in practice it’s not quite so simple. 

At the moment, the court is seen as a foreign imposition, as the impetus for its establishment was international pressure, rather than local demand. Moreover, the chambers’ institutional design, namely its exclusive international make-up and location in the Hague, have rendered it detached from local concerns and demands. 

Finally, the main grievance of the Kosovar Albanian population against the chambers is the unfairness of its mandate, which seeks to exclusively prosecute KLA veterans, and in turn, excludes former members of the Serbian army and Serb paramilitaries from the talons of justice. 

A physical transferral of the court would surely address concerns over distant justice, but it would do little to ameliorate the perceived bias of its mandate, or to tap into the concerns about its manner of establishment. Indicatively, the level of support from the Kosovar Albanian majority would be in danger of remaining low.

The same can be concluded for the Serbian minority, which already exhibits a high level of skepticism about the court’s ability to bring justice to the persons it intends to indict. Transferring the court to Kosovo would do little to ameliorate these concerns, particularly as the persons currently under indictment — Hashim Thaci, Rexhep Selimi, Kadri Veseli and Jakup Krasniqi — as ex-KLA members, are still seen as part and parcel of the Kosovar Albanian liberation struggle. 

Lessons for the KSC

Considering the array of obstacles a national KSC would have to face, a transferral at this point in time appears highly unlikely. Moreover, any future actions on the part of the KSC carry severe limitations, as the factors at the core of its low popularity are the very pillars on which the KSC is constructed, namely its origins, and its mandate.

However, the demand for relocation should serve to remind the court that there is a real need from the Kosovo population to establish a sense of sovereignty over the transitional justice processes undertaken under its name, for its benefit. 

Whereas the KSC can do little to nip the most concerning factors in the bud, it could do more to address smaller scale phenomena, such as lack of information on its functions or low public awareness. The court can also serve to facilitate and partake in the work of other initiatives on the ground, in an effort to create an overarching reconciliation strategy in Kosovo. In this line, the KSC can improve its outreach activities and participate in more deliberative forms of transitional justice

Firstly, the court could modify the approach of its outreach activities within Kosovo. Whereas the KSC has surely placed a bigger emphasis on outreach than its predecessor, the ICTY, these activities are limited in the actual impact they have had on the public within Kosovo. In fact, despite the many outreach events the KSC proudly displays on its website, rampant misinformation on the court and low public awareness about its mandate abound. 

Nobody with domestic political credibility is willing to advocate for the KSC on the ground.

In order to limit the disinformation of Kosovo’s citizens on the court, two initial steps are necessary: Firstly, more expansive training for domestic monitors of the court’s proceedings; and secondly, heightened emphasis on workshops and bi-directional informative sessions, in which attendees can both retrieve information from KSC representatives and voice their own demands.

It should also be kept in mind that the primary factor behind the minimal impact of KSC’s outreach activities is the absence of support from the government of Kosovo. At the moment, there is a PR vacuum in the country, as nobody with domestic political credibility is willing to advocate for the KSC on the ground. 

Considering that the support of the government of Kosovo is imperative in bringing about the societal changes that the chambers promise, a tighter and more constructive cooperation between the chambers and the government is needed. In this line, the KSC should be more proactive in fostering dialogue with the government, and in facilitating the role and participation of the state in transitional justice initiatives within Kosovo.   

Lastly, the KSC would benefit from supporting and upholding more deliberative forms of transitional justice. The bulk of current initiatives dealing with inter-communal reconciliation and the past in Kosovo are undertaken by civil society actors, with little to no support from state institutions. Moreover, there is no overarching victims-centered national strategy in Kosovo dealing with the past, which is greatly impeding the work of transitional justice actors on the ground. 

The KSC could play an important role in the creation of such a strategy by supporting and promoting institutions, NGOs and other stakeholders currently dealing with the past in Kosovo, as well as by organizing wide-scale consultations with victims’ groups and communities. 

In order for it to be most effective, transitional justice mechanisms need to employ a bottom-up approach, one which centers victims and survivors. Therefore, engaging with the Kosovar population at the local level should be front of mind for the KSC, as this is the first step toward a meaningful reconciliation process.

Feature image: K2.0.