Pineles: Special Court of Single Crimes Investigation mars its credibility

In an interview for the Voice of America, the author of the recently published book “The prosecution of a Judge”, where he analyzes the work of the Special Court, points out that if its decisions are not trusted by the people of Kosovo, then the court would not achieve one of the key goals, that of rectification of people.

Voice of America: Mr. Pineles, in your book “Odyssey of a Judge, you have analyzed the work of the Special Court of Kosovo. Former Kosovo President Hashim Thaci, former Parliament Speaker Kadri Veselin and other Kosovo Liberation Army leaders are awaiting the start of the trial against them at The Hague. How do you see the overall work of the Kosovo Special Court for War Crimes?

Dean Pineles: First, as a guiding principle of international law, people who commit serious crimes like war crimes or crimes against humanity must be held accountable. But this raises the question of how these people should be held responsible for their actions? In Kosovo the answer was the establishment of the Special Court. I have always maintained that the establishment of this court was not necessary because EULEX, where I worked, has directed a fully functional judicial system in Kosovo.

There have been many problems with EULEX, but they could have been solved if they wanted to, especially by the international community, Dean Pineles.

I was there when there was a debate about the establishment of the Special Court. There have been many problems with EULEX, but they could have been solved if they wanted to, especially the international community. But, in 2011-2014, the international community dominated the idea that the establishment of the Special Court for War Crimes in Kosovo was necessary and that EULEX could not handle this issue because of political interference, witness intimidation and other similar things. Thus, efforts were launched to establish the Special Court.

As you mention, after the end of the war in 1999, courts led by the UN Mission have operated in Kosovo and later by EULEX, where you have worked for over two years as judges. Did these courts fail to deal properly with war crimes-related cases?

Dean Pineles: The establishment of the Special Court was promoted by the international community. The thought that the establishment of this court was necessary because of political interference and witness intimidation if war crimes were handled in Kosovo. Thus, in this regard there can be an argument that its creation was necessary. I think this could be done by EULEX in Kosovo, if some changes were made within this organisation and court processes for war crimes cases could end sooner. Special Prosecutor Clinton Williams said the first war crimes charges could be filed as early as 2014. But they had to wait until the Special Court was established. Another aspect for me is the inflated Special Court. It has employed approximately 250 people from 25 different countries and spent more than 300m euros, and four cases are being reviewed by this court. One of them has already been solved. So if witness protection and the minimising of political interventions were impossible in Kosovo, the establishment of the Special Court in The Hague was necessary. Thus, there are strong arguments for both views. If the court was created faster, I could support it now. But now we have a huge institution, the Special Court, that is handling four cases. However, I would like to stress that this is a very professional court. It has every element of a modern court in 2022. However, the fact that it has spent more than 300m euros and has been taken with only four cases raises the question of whether this is the best way to bring people to justice. I think there might have been alternative ways of treating these cases.

You have suggested in your latest book and in some articles that the Special Court is biased because it is dealing only with crimes committed by Albanians, not those committed by Serb forces. Critics in Kosovo have raised concerns that it is exclusively dealing with the single crimes of an ethnic group. Does this harm the credibility of the Special Court?

Dean Pineles: I think this is certainly a controversial issue and I think so. I mentioned earlier that the Special Court hired 250 people from 25 countries. There is no Kosovar employed in court. It is a completely international organization. If in the end, this court, which has no representative from Kosovo, convicts these high-ranking KLA heroes, I don't think this would bring reconciliation among the public in Kosovo. And we have a precedent for that. If we take a look at the decisions of the war crimes tribunal in the spaces of the former Yugoslavia, those regarding Fatmir Limaj's case in 2005 and the two cases of Ramush Haradinaj, both were welcomed as heroes in Kosovo. Haradinaj was acquitted twice and considered a war hero. If the opposite had happened, I think there would have been protests in Kosovo. So the legitimacy of the special court is a very important issue. It was created with others with the intention of recapturing people and presenting the truth before the world, including in front of the people in Kosovo. And if decisions are not believed by Kosovo residents, then one of the tribunal's key objectives would fail.

Critics have also raised concerns that members of Serbian forces, who have committed war crimes in Kosovo, have not yet been investigated by any national or international courts. Who should deal with the judgment of these crimes?

Dean Pineles: Clinton Williams in his report has responded to this argument, saying many Serbs have been sentenced by The Hague tribunal for crimes in the former Yugoslavia, which is no longer in operation. He has said that the Special Court will deal only with KLA crimes. But there are still many people suspected of war crimes, living at large in Serbia. Serbia has a war crimes court, but it is moving with very slow steps, and very little is being done for investigating and judging these cases. Of course, it can become a convincing argument that we are dealing with an uneven treatment here.

In 2011, former Swiss Senator Dick Marty sent a report to the Council of Europe claiming that the Kosovo Liberation Army was involved in organ trafficking during the Kosovo war. Albania's Parliament has recently submitted a resolution to the Council of Europe, requiring the removal of these charges from the report. What are the chances of the Council of Europe adopting this requirement?

Dean Pineles: Despite all publicity about organ trafficking since the first day, since it was filed by Carla del Ponte, Dick Marty and Clinton Williams, no charges have been filed in the case at the Special Court. This is not mentioned in any case by this court. Ans one of the charges filed so far does not address the issue of organ trafficking. Although organ trafficking was one of the factors that led to the establishment of the Special Court, no charges have been filed on the case. I think Albania probably has a good case. This report, which has historical significance, specifically cites Albania as a country where there has been illegal organ trafficking.

Now, there is no evidence -- at least no evidence -- that has resulted in the raising of criminal charges to support these claims. I think Albania has a good case. But I don't know if the Council of Europe will review the report to drop these charges. The Council of Europe is a clumsy organisation with many different views within it. Some representatives may say, while there are no specific charges, dealing with organ trafficking, we all know what happened and that happened. So there might be thoughts of that kind in the Council of Europe. On the other hand, Albania may have great support for reforming the resolution.

This will be an interesting development.

Mr. Pineles, what are some of the challenges of Kosovo's legal system in dealing with issues related not only to war crimes, but also to corruption and other crimes?

Dean Pineles: Eulex had a fully functioning judicial system that was transferred to Kosovo's justice system. But there are still many challenges. Corruption and political interference continue to be present. These issues are critical in Kosovo's membership efforts in the Council of Europe, the European Union and other international organisations. Dealing with such matters in a somewhat isolated society is very difficult. There must be will at the highest levels of government to deal crucially with these issues. Laws on these issues exist. Kosovo has a very good law code, but there must be a will to identify lawbreakers and encourage people who have evidence of violations to have the courage to testify. But this is a problem that still remains present, not only in local courts in Kosovo, but also at the Special Court in The Hague. People do not want to testify against prominent political figures, especially against war heroes, who are being accused of war crimes. Extinction of corruption is a very difficult process. A strong will is needed to implement Kosovo's strong penal code. / VOA