Special Court: What's It All About?

The Assembly of Kosovo meets today (August 3) with just a single issue on the agenda: the special court. It's a debate that has been rumbling on for over a year, with a deep divide between opposing view points. Here, Kosovo 2.0 cuts through the political wranglings and explains the main issues at stake. 

The effort to establish a special court has become the foremost political event of the summer in Kosovo. A lot of pressure has been applied to Kosovo’s MPs, from both internal and external sources, to approve the necessary amendments to the constitution that would pave the way for the formation of a special court. If approved, the court would deal with crimes that were allegedly committed by former Kosovo Liberation Army (KLA) members, during and immediately after the 1998-99 war, against Kosovo Serb civilians, members of the Roma, Ashkali and Egyptian (RAE) community and Kosovo Albanians that were thought to have collaborated with Slobodan Milosevic’s regime.

The special court is planned to be located in the Netherlands and would be solely comprised of international staff. Its primary function would be to deal with the allegations made by EU Rapporteur Dick Marty in his 2010 report; namely so-called ‘organ trafficking,’ mistreatment of detainees, abductions, and systematic killing of Milosevic collaborators. The controversial report was adopted by the Council of Europe in January 2011.

Marty named the KLA’s leadership as having been directly linked with the alleged crimes, and included former Prime Minister of Kosovo — and current Foreign Minister and Deputy Prime Minister — Hashim Thaci amongst the accused.

Investigating war crimes is one of the key objectives of the EU’s rule of law mission, EULEX, which was launched in Kosovo in 2008. However broadly speaking, EULEX has proved unable, or unwilling, to pursue the most serious war crimes accusations effectively. Last year an EU Special Investigative Task Force’s findings were ‘largely consistent’ with the Marty report conclusions and found “compelling evidence” against certain former senior KLA officials, saying that it was ready to issue indictments. Kosovo was asked to establish a special court to hear those charges, and has subsequently come under significant international pressure from the EU and USA in particular to do so.

In order to establish the special court, changes are required to Kosovo’s constitution, requiring a two thirds majority vote from the Assembly (i.e. at least 81 of the Assembly’s 120 deputies must vote in favor or any change). On June 26, the relevant constitutional amendments were voted on in the Assembly; against most people’s expectations, the changes were rejected. The opposition parties Vetevendosje (VV), Alliance for the Future of Kosovo (AAK) and Initiative for Kosovo (NISMA) voted against the motion as expected, but they were joined in their opposition to the court by several deputies from the coalition’s Democratic Party of Kosovo (PDK).

The backlash from that vote began immediately, with the international community, led by the US, initiating a host of emergency international visits and repeating barely veiled threats that if Kosovo failed to establish the special court itself, a less favorable alternative would be established by the UN Security Council. Kosovo’s government has shown great determination to re-introduce the vote on constitutional changes. They now believe that they have the necessary support to pass the bill, although with little having changed on the surface, the means of securing the extra required support from PDK deputies, suggests that significant pressure has been applied on dissenting deputies behind closed doors for them to have reportedly changed their minds.

The long running debate over the special court has been passionate and acrimonious with a seemingly never ending war of words between supporters and opponents. Kosovo 2.0 summarizes the key arguments for and against the special court, with the help of recent interviews with two Assembly deputies; LDK’s Blerim Grainca and Vetevendosje’s Ilir Deda.

Key arguments in favor of establishing the special court:

Maintain strong ties with international partners:

Kosovo is tightly bound with international partners, taking into account the contribution of the West that led to the country’s liberation. International partners have additionally invested both economically and in the consolidation of democratic practices for the past 16 years since the war. Proponents of the special court strongly emphasize the importance of the international community in Kosovo. Kosovo also aspires to Euro-Atlantic integration, which have been the strong discourse of each government since the war.

Grainca emphasized the importance to Kosovo of preserving good relations with its international partners. “Kosovo has international obligations, and the government has taken international obligations to finish these issues, that opens a path towards the integration process.”

Justice:

The Marty report, and subsequent Special Investigative Task findings, made serious allegations against former members of the KLA. A key principle of western legal systems, including Kosovo’s, is that justice is not only done but that it is seen to be done. While there are serious allegations being made without efforts to hold those accused to account, it gives the impression that justice is not being served. Bringing justice for all and shedding light on the allegations is not only important for the future credibility of Kosovo’s legal system, it is also seen as important for improving Kosovo’s image abroad.

The LDK-PDK coalition emphasize that establishing the special court is an opportunity to draw a line under the allegations in the Marty report, without necessarily demonizing the KLA. “If there have been individuals that committed war crimes, they cannot be addressed to the KLA,” said Grainca.

For Grainca, the issue of justice is particularly important and one that is felt particularly by LDK. “Political eliminations of LDK activists after the war is one of the core reasons why LDK is seeking to vote for the special court.”

Risk of the UN Security Council establishing a special court:

Advocates of forming the special court emphasize that if Kosovo fails to adopt the constitutional changes, the UN Security Council will do so anyway. Initiated by permanent UN Security Council members Russia or China  countries that do not recognize Kosovo’s independence  any court established through the UN would almost certainly produce far more inconvenient consequences for Kosovo than a court initiated domestically. The other permanent Security Council members  the United States, Great Britain and France  have already said that they would not veto a resolution by Russia or China, if Kosovo failed to create the special court.

Key arguments against establishing the special court:

Continued barriers to Kosovo’s sovereignty:

One of the key arguments made for rejecting the special court is the continuation of a situation whereby Kosovo’s sovereignty is shared. Kosovo already shares executive powers with EULEX in judicial matters and cases relating to war crimes, while NATO’s KFOR (alongside Kosovo’s Police) is responsible for the country’s security.

“The Special Court transfers a judicial sovereignty of Kosovo to a semi International court,” said Deda. “This court would be run by the European Union, managed by the EU and would enter into international arrangements on behalf of Kosovo without parliament ratifications, only notifications to the president and government.” Grainca concedes that to some extent, this is the case but argues that it is a necessary price to pay. “Law experts claimed that the court creates an intervention and dualism of sovereignty, but this is a consequence for not fulfilling the duties of Kosovars after the war.”

Problems with a court being established to deal with monoethnic alleged crimes:

The Court would deal solely with alleged war crimes committed by the KLA against other communities. Opponents of the court consider this to be highly disproportionate, given the extent of crimes and alleged crimes committed against Albanians during this period.

“This is the first monoethnic court since 1945 after the Nuremberg process and we will have this process too,” said Deda. “Other former Yugoslav states didn't have it, and thus it is a false step in the beginning and unjust for Kosovars.” Grainca rejected this point, stating that “crimes have no ethnicity,” but failed to answer when asked why the special court would deal solely with monoethnic alleged crimes.

The damage to Kosovo’s image / The discreditation of the KLA’s ‘righteous’ cause:

According to opposition voices, the damage caused to Kosovo’s image and international relations will be threatened by the formation of a special court. The argument goes that by establishing the court in the first place, it already assumes that there were serious war crimes committed, a point made recently by Vetevendosje’s former leader Albin Kurti. “Serbia is continuing to campaign against Kosovo, but with the special court the image of Kosovo will be exacerbated internationally.”

The opposition have tended to use a discourse of the court demonizing the KLA’s effort for freedom. “There are only just and unjust wars, there is no such thing as clean and unclean war,” said Deda. “But our war was just.”

Although the government remains confident that the constitutional amendments will pass in today’s Assembly vote, nothing is guaranteed until all ballots are counted. It promises to be another hot week ahead in Kosovo, and not just in terms of the weather.

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THE SIX PARADOXES OF KOSOVO’S SPECIAL COURT

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