Kosovo Specialised Chambers in The Hague: The Need for Local Legality

The Prosecutor's announcement of the goal of establishing procedures in February this year re-elected the international community's hope in Kosovo's Specialised Chambers (DHSK), mainly because nearly five years since the start of the works has achieved little progress in investigating and tracking cases. However, Kosovo's population does not share much of the international community's enthusiasm, as an impression prevails that the success of this institution would not necessarily mean change in the context of transitional justice in Kosovo society.

A PX-led study conducted in Kosovo in 2017 on public opinion perceptions of The DHSK had concluded that the overwhelming majority of Kosovo Albanians viewed as unfair the mandate of the DHSK, which would only prosecute war crimes and crimes against humanity committed by the Kosovo Liberation Army (UÇK). The reason behind this perception is the belief that the pursuit of alleged KLA-related Albanian leaders tarnished the history of the fair war made in defense of Albanian civilians who were being attacked by Serb forces and for whom there has still been no clear legal consequences. Furthermore, participants in the above study also expressed concern that as long as Albanians could not apply for office in this court, Serbian citizens could do so. On the other hand, the majority of Kosovo Albanians agreed that the law to establish the DHSK has been adopted under pressure from the international allies of Kosovo, and that this was rather unfair implantation from abroad than an internal initiative. That conviction is shared by Serb participants in this study who had the general sense that after the DHSK has been imposed by the international community, (it) has no genuine desire to do justice, but rather (is) a need of Kosovo's international allies to clear the image of political leaders now in power. Kosovo Serbs are even very skeptical that the DHSK will bring justice to Serb victims, because they have lost confidence in the mechanisms of justice after seeing failure on this level of international and local justice systems.

This study confirmed the lack of local legitimacy of the DHSP in the eyes of Kosovo's population. This local rejection can be summed up in a few words to four causes:

1. International pressure was the main element that brought about the creation of the DHSK;
2. The dynamic of unilateral justice after the DHSK only pursues crimes committed by KLA members, who most Kosovars see as freedom fighters;
3. The impression that earlier international justice initiatives like the War Crimes Tribunal in the former Yugoslavia, the United Nations Co-ordination Administration Mission in Kosovo (UNMIK Courts), and the EU Mission for Ending Law (EULEX) have failed to bring justice and have not contributed to the reconstruction of Kosovo society; and
4. Lack of political support from Kosovo authorities for The DHSK, which in 2018, even brought in the attempt to enforce the law that created the DHSK.

The question is that, after the DHSK operates in The Hague and has a hybrid nature, why is it so essential to have local legitimacy?

In Kosovo the war has left society destroyed, and rifts between Serbs and Albanians are still very impressive. This is obviously a context of transitional justice and measures taken on this level, according to the normative concept, should aim to bring citizens recognition and civic trust as medium-term goals; and reconciliation and democracy as the final goal. These goals are interrelated and have bilateral relationships. But because of limited space, this scripture will focus primarily on civic faith and reconciliation, in relation to local legitimacy.

First, to understand the relationship between these concepts and the DHSK, it is necessary to first define these. Suchman describes legitimacy as the “impression or general assumption that actions of an entity are desirable, relevant and appropriate under a structured standards system, values and beliefs”. Therefore, local legitimacy, in this case, is the perception of the Kosovo population that the DHSK is desirable and answers their values and beliefs.

Citizen faith De Greiff describes as a <x0 division developed among citizens who do not know each other and who are members of the same community only in the sense of being co-members of the same political community”. The justice mechanism that actually contributes to the transition should re-focus that war crimes victims and crimes against humanity are rights owners and should restore the order of norms that the perpetrators have violated. A court will prove its worth by determining that no one is above the law and that doing so will help put trust in the system and, if it works well, will also increase confidence in the system and between citizens and using it to resolve differences between themselves. Consequently, if the DHSK enjoys local legitimacy, then it will be seen as a reliable institution that understands the social system of norms, values and beliefs and that it can find solutions to the differences the war has left among Kosovo citizens.

Furthermore, de Greiff describes reconciliation as the “state in which citizens can trust each other as citizens, again (or from the start)”. However, since the relationship between this notion and transitional justice is complex, the more the transitional justice measures can be made in this respect is to contribute to the institutions becoming reliable and can be counted on. DHSK, having no local legitimacy, has completely neglected and ignored that goal, and even though it is a hybrid court that is supposed to be closer to the local context and originates with local authorities, is following the same path of failure as The Hague Tribunal, which was adhoc tribulal established by the UN Security Council in New York that never succeeded in having local legitimacy in the countries of the former Yugoslavia.

Consequently, in order to achieve civic trust and reconciliation, and to really contribute to the transition to Kosovo, The DHSK has to listen and react to demands that lay down local legitimacy, otherwise it will simply remain an academic enterprise under international law, doomed to satisfy the international community but without real influence in local society which is designed to protect it.

The good news is that the DHSK still has time to gain local legitimacy and have real impact on Kosovo society. The prosecution's recent activities have turned its attention back to the DHSK and, with little political will, some measures aimed at improving local legitimacy and achieving the goals of the higher-mentioned transitional justice. These measures should include:

1. Enlarging the mandate of the DHSK to investigate Serbian attacks as well, as prosecuting crimes committed by both sides in the conflict will build confidence among citizens of both ethnic groups and make the tribunal credible;
2. The involvement of Kosovars among employees and judges in the DHSK, who because of the unique understanding of deeper shades of realities on the ground, have a more accurate opinion of what local legitimacy means for Kosovo, as well as a better understanding of the fact investigated and followed by the DHSK;
3. Passing proceedings in secret, making them and any information related to them more open to the public. So far, this hiding has only increased the distance between the DHSK and the people of Kosovo, which has been followed by lack of trust in this institution;
4. Construction of bridges through local initiatives. The Standard Act's draft for the Commission for Truth and Conciliance in Kosovo could be an opportunity to put communication and work together in a local mechanism.

In the end, it is ironic that the International Criminal Tribunals shift attention from the international community to the specific contexts of the countries where crimes have occurred, as there is the reason for any action they take. In the case of Kosovo, it is absolutely necessary to ensure that International Criminal Justice finds place on the scene of the Kosovo community in transition and has real impact on people affected by war. It is time for the DHSK to be looked into by the eyes of Pristina, not The Hague.

[Andrea Trigoso is a trained lawyer in International Criminal Justice. Currently, it is attending post-diplomatic studies in Transnciological Justice.

Link: http://opinijuris.org/20/06/08/the-Kosovo-specialist-chambers-in-need-of-local-legitimacy/