Special Court Paradox

The public announcement of June 24th 2020 of the indictment filed by the Specialised Prosecutor's Office (ZPS) in The Hague against Hashim Thaçi, Kadri Veselini, and others has been the subject of numerous largely political and less legal discussions. While the disk has been focused among other things on the direct impact this announcement has had on (not) the development of the meeting envisioned at the White House, little attention has been paid to the nature and functioning of the judicial institution, whose seal this indictment holds. In this respect, I think it's important to analyze with the eyes of the retrospect what the political, judicial, and procedural context has been that led to the establishment of this institution, which is the structure and jurisdiction of this court, and above all the consequences that the decisions of this court can bring to Kosovo and the order of international criminal justice. This analysis can only be raised on the question of whether the Special Court or Specialised Chambers and the Kosovo Specialised Prosecutor's Office, as it is officially recognised, has first represented the will of the people of Kosovo and, second, whether it is conceived as the judicial institution more appropriate to address the demand for justice of victims in Kosovo.

On August 3rd 2015, the Kosovo Assembly approved under strong international pressure, and by a convincing majority of votes, Article 162 Kosovo Constitution i n Law on Specialised Chambers and Prosecutor's Office Specialised (Law No. 05,L -053). It is noteworthy that, with the exception of members of the Vetevendosje Movement who rejected this law by failing to participate in the vote, a abstention and five votes against members of other parties, this vote holds the signature of all other members of political parties represented in the assembly, including those accused of the act. What has resulted from this Constitutional amendment is the founding of a court entirely Sui Geners, of the only kind that has no resemblance to any other court in the entire spectrum of international criminal justice to date. The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda were courts ad hoc Founded by UN Security Council resolution. Other hybrid criminal courts, such as that of the Special Court for Sierra Leone, the Special Tribunal for Lebanon, the extraordinary Chambers of the Cambodian Court, have been established on the basis of the treaty, or agreement between the respective states and the UN, and have the nature of temporary and <x0-internationalised courts”, characterized by national and international elements in both their composition and function. Save International Criminal Tribunal (ICC) is a permanent court created by a treaty, “Rome statue” As will be seen from the following analysis, the Special Court is unprecedented in its structure, competencies and operation.

Special Court Competence and Jurydiction

Kosovo's Displaced Specialised Judicial Institute (called otherwise called Special Court or Specialised Chambers) as this institution was first baptized (a name to some extent cafkian as if to imply a will of Kosovo itself to shift some of its judicial powers outside its territory) is a local court, part of Kosovo's judicial system, to The Hague. As such, it is made up entirely of international judges and prosecutors, bringing the institution's greatest paradox -- a local administration court of which becomes entirely international outside Kosovo's territory. This court is funded by the European Union with an initial fund allocated over 400m euros. The special court is a court with a provisional mandate and a specific jurisdiction on crimes against humanity, war crimes, and other crimes defined in the Kosovo Law, regarding the claims filed in Kosovo Assembly Report Parliamentary Europe Council dated January 7, 2011 (Marty Report).

According to Article 12 of the Law (Nr. 05L -053), Specialised Chambers enforce international custom rights and the material criminal law applicable in Kosovo as long as it is in line with international customary law, which has been applicable at the time the crimes were committed. But what does that mean in practice? This vagueness evident in the content of this article brings to the trial's own experimental nature. The right of the international criminal procedure and the jurisdiction carried out so far offer no specific platform and guidance on which the international judges of this court can be based to apply and interpret this legal formula in matters that will be judged by it. In all the speeches I have held in Europe, the U.S. and Australia on the special court since 2016 until now, I have tried to shed light on the unprecedented nature of this court as well as the consequences it is expected to bring. The special court has been the subject of discussion at many tables and conferences, where I have been invited to give thought, and I say with conviction that I have not met any scholars, judges or prosecutors with international law experience who have not expressed scepticism about the nature and jurisdiction of this court. An experienced judge in The Hague even called this court '%sui gneris cul de sac. Meanwhile at the conference organised by the Ministry of Justice, the Ministry of Diaspora and the Kosovo Lawyers Oda, held in Pristina on 10 June 2016, what impressed me was how little or no knowledge there was in the district of Kosovo lawyers and judges regarding the structure, and the jurisdiction of this court. This suggests that the preliminary discussion about this court before the assembly vote and changing the Constitution has been led by a political and non-legal process, limited and not inclusive.

Actual

On 24 April 2020, the Specialised Prosecutor's Office (ZPS) presented Kosovo Specialised Chambers (DHSK) with a ten-point indictment of the Court, where Hashim Thaci, Kadri Wessel, and others are charged with a series of crimes against humanity and war crimes, and allegedly the accused were prosecuted responsible for approximately 100 unlawful killings. The incident is a criminal indictment and is the result of an investigation and a legal technical process. The public announcement of this indictment on June 24th 2020, prior to making its decision on confirmation or not by the judge-appointed preliminary procedure of the DHSK has in fact been made in violation of the 88th Rule of Procedure and Evidence, and as such is unprecedented in the practice of international courts and hybrids in The Hague. However, violating the regulation is not of that importance and seriousness that can affect, for example. to interrupt the prosecution's investigation procedure by the judge or its nonconfirmation for this reason. In my opinion, this violation will not bring consequences to the procedure, but may bring a damage to the specialised prosecutor's reputation.

The moment elected by the prosecutor to issue public announcement on charges, in his trial as necessary because of the accused's repeated efforts to prevent and sabotage the work of the DHSK, is controversial. If we strip our analysis of political interpretations, we can reason that this action may also have been a tactical act of the prosecutor, who would not want a several-year investigation process compromised in any form by empowering an accused who was expected to participate in high-level negotiations at the White House. However, these remain at the level of speculation and interpretation, as the impact of this action is already reality.

As part of this analysis, it is important to mention that any agreement that could have been reached as a result of negotiations expected in Washington, it would have no impact on the charges filed, even if amnesty for crimes committed were part of that agreement. Article 18 of the Law for The DHSK predicts the court's jurisdiction does not subject to any kind of amnesty allowed under Article 65%15 of the Constitution. Each amnesty given to persons for an international crime such as war crimes and crimes against humanity would be no obstacle to prosecution and condemnation.

Why a Special Local Court?

Suspected war crimes cases in Kosovo, from 1999 to today, have been handled in different forms by justice organs, mainly international ones. Initially, the United Nations administration UNMIK, which after the war established and empowered the justice system in Kosovo, and the International Criminal Tribunal for the Former Yugoslavia, founded by the United Nations, was taken over by the UN. Later, these cases were handled by the justice of the European Union through the EULEX mission. In this discurs, one important question is why another court was needed, and if another judicial instance was meant to be dominant, why exactly a special local court of this type of unprecedented. I think five are the reasons for that conclusion. First, it is claimed that during his nine-year term U n The NMIC did not address in the Kosovo judicial system the criminal acts discussed in the Marty Report, despite UNMIK possessing all institutional and human capacity to investigate and collect information allegedly in this report. Second, even EULEX that continued managing justice on the system inherited from UNMIK failed to deal with these alleged criminal acts. Thirdly, the demand for justice of war victims in Kosovo did not find sufficient attention during Kosovo's 20 years of governance and was not treated as a central part of Kosovo's post-conflict society transition justice. The fourth, the post-war judicial system established in Kosovo, even after a 20-year-old institutional and financial investment, has not yet shown the capacity to function with proper integrity and independence, which would be a prerequisite for a fair and independent process to deal with criminal acts of this importance. The European Court of Auditors' 2012 report said that judges in Kosovo, “tend to act under the influence of external influences”. Fourth, the former Yugoslavia's Tribunal prosecution, despite long and detailed investigations into KLA actions, failed to finalise the investigative process with an indictment of criminal acts discussed in the Marty Report. Even if these claims remained, none of these reasons and shortcomings could be attributed to the state and the citizens of Kosovo. Here the international community must recognise and accept its responsibility for handling justice in Kosovo as an experimental laboratory.

If we go back in time, what will be seen is that media pressure and that of the international community began to rise following charges filed in the very controversial book of former Yugoslav Tribunal for former Yugoslavia prosecutor Carla del Ponte. This resulted in a commitment of the Committee for Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, resulting in a report drafted by Dick Marty. This, though general, surface and naked from any evidence and evidence, was enough to further push pressure and discussion about establishing a new judicial institution. After this report was released, in September 2011, the European Union formed Special Plant Task (TFHS), for conducting an independent investigation into claims filed in the report and other crimes related to them. In 2014, T The FHS has come to know that there was enough evidence to bring an indictment up. In examining these claims, the establishment of a proper institution for proper trial proceedings was necessary. I think that here the Kosovo leadership could have shown more visionary and pro-active, paralysing pressure coming from the EU and the US, as a solution to the establishment of an institution within the Kosovo judicial system made up of the local and international judges, an institution offering adequate guarantees for the protection of victims and witnesses, and, above all, one that did not diminish the authority of the independent state of Kosovo's judicial authority. Special Court is already a reality that cannot be undone. The impact of decisions this court will take will be felt not only on those who will be subject to its judgments, but also on the rule of law in Kosovo and the jurisdiction of international criminal law.

*Dr. RUDINA JASINI is a specialist in international criminal law at Oxford University. It's written specifically for Lapsy. al