Daan Everts: Special Court Like How War Crimes Should Not Be pursued

(1999: A Kosovo Albanian among 23 fellow countrymen killed in Recak, 25km south of Pristina)

OPENONIA by Daan Evert

The horrors of Ukraine's Russian occupation have rightly revived the war crimes issue.

The Netherlands is leading the way in seeking justice for those who are either directly or indirectly guilty of war crimes or of crimes against humanity there. Minister Hoekstra has recently made 15m euros available for that purpose. There is a stir of ideas about the best way to set up this trial, with The Hague as the self-declared capital of international justice, which will play a central role if possible. What seems to have saved many people is that a war crimes case (advised or others) is continuing for years, which is obviously not going well but offers lessons for future actions.

These are the war crimes for which a number of leaders of the former Kosovo Liberation Army (UÇK) leaders are charged. In 2015, under pressure from Western states, a special court was established, which is part of Kosovo's legal system, but at the same state's request, is not found in Kosovo's capital, Pristina, but in The Hague. This court, dubbed Kosovo Special Chambers, is an independent institution, Sui generis, financed mainly by EU countries along with the US, Canada, Switzerland, Norway and Turkey.

Mandata

Kosovo itself has no influence. The court's mandate is to try war crimes and crimes against humanity committed in Kosovo between March 1998 and the end of 1999, during and immediately after the war for independence from Serbia. In practice, surprisingly, it is only about crimes committed by Kosovo Albanians, read the KLA, and not by Kosovo Serbs or Serbs. This ethnic restriction probably serves as compensation for the alleged anti-Serb stand by the former Yugoslavia Court, also located in The Hague, which was targeted primarily by Serb war criminals, which Serbia has criticised.

The Kosovo Parliament readily agreed with Western demands for Kosovo's Specialised Chambers under political pressure from then pro-Western Kosovo President Hashim Thaci, former political leader of the KLA. The same president for two years is in custody in Scheveningen. Once the order to arrest him was announced, he voluntarily resigned as president to enable imprisonment. Same as the three other known KLA figures, also with high political profile. It is unclear why from the much larger number of leading KLA figures, this four is being prosecuted. All four are charged as part of a joint criminal enterprise. A very strange qualifications for a Western-backed resistance against the ethnic oppression of Milosevic's de facto apartheid regime. In Kosovo, the four are not seen as Mandela, but are seen as heroes of resistance.

Special Court organ trade has a long history. The reason was a motion at the Parliamentary Assembly of the Council of Europe in 2008, submitted by Russian MP Kosachev, a member of the United Russian “” of Putin (which was later placed on the US and EU sanctions list). The motion refers to inhuman treatment and illegal organ trafficking in Kosovo. A special rapporteur, Swiss MP Dick Marty, then conducted an investigation on behalf of the Council of Europe. He focused mainly on the leading role of the KLA. His report was below-level: no hard facts, but mainly assumptions and gossip. The report, however, was accepted in 2011 with the support of Dutch parliamentarians, such as Tiny Kox (PS) and Pieter Omtzigt (then still CDA) with the special court as a final result.

First Punishment

It seems that the trial against four will last for years. The court's first sentence after seven years, handed down last Friday, includes a local commander and has nothing to do with charges against KLA leaders. The fact that US chief prosecutor Jack Smith has just retired to Washington to act as a special prosecutor in the legal battle against former President Trump will not help speed up this subject.

All the time, suspects are staying in custody, including a former head of state and two former parliament heads, who after the war in Kosovo were treated with much respect from all Western capitals, including The Hague. President Beden, hyperbolically, even called Thaci “George Washington of Kosovo”.

Repeated requests for their parole, with police supervision guaranteed by Kosovo, were systematically rejected. This could mean that the four could spend four to five years in custody until a final judicial decision is made. A decision that could most likely imply an announcement of innocence. For example, Human Rights Watch, a widely respected organisation, has declared that “has no evidence of a co-ordinated policy (of violence against minorities) by political and military leadership. h - KLA.” The process so far has cost around 500m euros.

Countless judges, prosecutors, and employees are employed there. And so costs continue to increase by tens of millions, because tax-free wages and other costs are not bad. All this for a court process built on a suspicious basis and a suspicious report.

Near Forget

Unfortunately for Kosovo, its 20-year freedom struggle has completely waned in the reality of Ukraine's heroic resistance to Russia in 2022. And so this suspicious trial is crawling in almost dark. There are no wars without war crimes. They should not go unpunished. Of course, the Netherlands is not allowed to interfere with the contents of such a process. But as a champion of international justice, it would be beneficial, in this concrete case, to take a critical look at the treatment of the accused, if not the entire course of events, and to raise him to the Council of Europe, The EU and other sponsors. New initiatives regarding Ukraine will require more caution.

Daan Everts is former ambassador and chief of the mission in the EU, the UN, the OSCE and NATO.