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The EU-engineered hybrid and international specialist court in Kosovo: How ‘special’ is it?

Published online by Cambridge University Press:  06 December 2016

Fisnik Korenica ,
Argjend Zhubi  and
Dren Doli
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European Constitutional Law Review , Volume 12 , Issue 3 , December 2016 , pp. 474 - 498
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Copyright © The Authors 2016 

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Footnotes

*

Dr. Fisnik Korenica, Fundamental Rights & Constitutionalism Research Group, Vrije Universiteit Brussel and Faculty of Law, University of Prishtina. The authors would like to thank the editor and the three anonymous reviewers from EuConst for thoughtful comments and advice on this article. Thanks to Lowell West, our colleague from UC Davis, for proofreading this article. The usual disclaimer applies.

**

Argjend Zhubi LLM (Bristol), External Fellow, Group for Legal and Political Studies.

***

Dren Doli, PhD Researcher in public international law, University of Hamburg, Germany.

References

1 The International Crimes Database provides a more comprehensive explanation on the design and meaning of hybrid tribunals. It notes that ‘[h]ybrid, internationalized or mixed criminal tribunals are those tribunals which are half national, half international in nature. This can be discerned from: (1) the way they were established (e.g. agreement between the host state and the UN); (2) their subject matter-jurisdiction (both international crimes and national crimes); and (3) their staff (both local judges/prosecutors and international staff).’ See The International Crimes Database, <www.internationalcrimesdatabase.org/Courts/Hybrid>, visited 3 October 2016. The Special Court’s consideration on basis of these criteria is examined extensively in the main text below.

2 Other hybrid courts include the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Serious Crimes Panel, Dili, the Bosnia War Crimes Chamber and the Special Tribunal for Lebanon.

3 The European External Action Service is the EU’s diplomatic service. Besides the EU Rule of Law Mission in Kosovo (EULEX), the EU implements policy in Kosovo through the EU Office, an office staffed by the European External Action Service and directed by the Commissioner of Directorate-General for Neighbourhood and Enlargement Negotiations.

4 See generally, Romano, C. P. R. et al. (eds.) Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford University Press 2004)CrossRefGoogle Scholar.

5 On the functioning of UN mandated territorial administration systems, see Stahn, C., The Law and Practice of International Territorial Administration: From Versailles To Iraq and Beyond (Cambridge University Press 2008)CrossRefGoogle Scholar.

6 United Nations Mission in Kosovo is the UN-mandated civilian mission established in 1999 in Kosovo under the UN Security Council Resolution 1244. Until the declaration of independence, it acted as a de facto government for Kosovo with broad powers in the institutional sphere. Formally, it still exists under UN Security Council Resolution 1244, but has modest powers.

7 See on this point, Fichtelberg, A., Hybrid Tribunals: A Comparative Examination (Springer 2015)CrossRefGoogle Scholar; Dickinson, L. A., ‘The Relationship between Hybrid Courts and International Courts: The Case of Kosovo’, 37(4) New England Law Review (2003)Google Scholar.

8 Not technically a hybrid tribunal, the International Criminal Tribunal for the former Yugoslavia was established in 1993 under UN auspices. It has jurisdiction to hear cases of alleged crimes committed in the territory of the former Yugoslavia. Being a former Yugoslav territory, alleged crimes committed in Kosovo became subject to the jurisdiction of the International Criminal Tribunal for the former Yugoslavia after the termination of war. See, for this purpose, the statement issued by the Prosecutor, 10 March 1998 <www.icty.org/en/press/prosecutors-statement-regarding-tribunals-jurisdiction-over-kosovo>, visited 3 October 2016.

9 See the Completion Strategy for the International Criminal Tribunal for the former Yugoslavia, <www.icty.org/sid/10016>, visited 3 October 2016.

10 On the post-conflict courts system operating in Kosovo, see Betts, W. S. et al., ‘The Post-Conflict Transitional Administration of Kosovo and the Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law’, 22 Michigan Journal of International Law (2000-2001) p. 371 Google Scholar; Stahn, C., ‘Justice under Transitional Administration: Contours and Critique of a Paradigm’, 27 Houston Journal of International Law (2004-2005) p. 311 Google Scholar; Baylis, E. A., ‘Parallel Courts in Post-Conflict Kosovo’, 32 Yale Journal of International Law (2007) p. 1 Google Scholar.

11 See generally Cerone, J. and Baldwin, C., ‘Explaining and Evaluating the UNMIK Court System’, in C.P.R. Romano et al. (eds.), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford University Press 2004)Google Scholar; Carolan, R. F., ‘An Examination of the Role of Hybrid International Tribunals in Prosecuting War Crimes and Developing Independent Domestic Court Systems: The Case of Kosovo’, 17 Transnational Law and Contemporary Problems (2008) p. 9 Google Scholar.

12 Comprehensive Proposal for the Kosovo Status Settlement, 2 February 2007, <www.kuvendikosoves.org/common/docs/Comprehensive%20Proposal%20.pdf>, visited 3 October 2016.

13 On the EULEX scope of authority within the framework of the justice system, see generally Doli, D. and Korenica, F. ‘How powerful are Eulex judges and prosecutors in Kosovo’, 14 Revista General de Derecho Penal (2010)Google Scholar.

14 See generally ‘EULEX – Towards an integrated exit strategy – Strengthening the rule of law through EU integration’, A Policy Report by GLPS and DPC No. 05 (April 2014).

15 On the failures of EULEX Kosovo, see J.-P. Jacque, ‘Review of the EULEX Kosovo Mission’s Implementation of the Mandate with a Particular Focus on the Handling of Recent Allegations’, 31 March 2015, Report drafted under the auspices of the European External Action Service, <eeas.europa.eu/statements-eeas/docs/150331_jacque-report_en.pdf>, visited 3 October 2016.

16 We use ‘Special Court’ or ‘Specialist Chambers’ interchangeably in this article, as they both connote the same institution. We insist that, as opposed to the formal name of ‘Specialist Chambers’, the term ‘Special(ist) Court’ more substantively reflects the self-contained nature of this institution. For this reason, the label ‘Special(ist) Court’ has been used throughout the article.

17 <www.assembly.coe.int/CommitteeDocs/2010/20101218_ajdoc462010provamended.pdf>, visited 5 October 2016.

18 <www.assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=17942&lang=en>, visited 5 October 2016.

19 Under Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO. See Art. 3, point (d) EULEX KOSOVO shall inter alia ‘ensure that cases of war crimes … are properly investigated, prosecuted, adjudicated and enforced’.

20 <www.euobserver.com/opinion/128343>, visited 5 October 2016.

21 Several high US State Department officials visited Kosovo in the meantime, encouraging local institutions on the prospects of the creation of the court. See <www.top-channel.tv/lajme/artikull.php?id=304039&ref=ngj>, visited 5 October 2016.

22 In the EU-Western Balkans Summit (Thessaloniki 2003) Kosovo was promised a European future, though it has become tied to the Special Court.

23 See e.g. ‘The truth beyond any doubt (10/04/2014)’, statement by Samuel Žbogar, Head of the EU Office in Kosovo and EU Special Representative, <eeas.europa.eu/archives/delegations/kosovo/documents/statements/140410_the_truth_beyond_any_doubt_en.doc>, visited 17 October 2016.

24 Cf. C. E. Carroll, ‘Hybrid Tribunals are the Most Effective Structure for Adjudicating International Crimes Occurring Within a Domestic State’ (2013). Student Scholarship, Paper 90, <scholarship.shu.edu/cgi/viewcontent.cgi?article=1090&context=student_scholarship>, visited 17 October 2016, p. 8 (‘Proponents of ad hoc tribunals suggest they lead to more consistent treatment of international crimes, as opposed to a criminal body that incorporated more domestic law that would, by definition, vary from state to state. However, this goal of consistency has not been demonstrated by the [International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda]’).

25 Cf. Carroll, supra n. 24, p. 6, who argues that international tribunals are usually seated away from the ‘epicentre of the crime’ and ‘are subjected to foreign standards’.

26 The Special Court is to date not yet made fully operational. It will be seated outside Kosovo, but will also have one of its offices in Kosovo. The seat outside Kosovo had been a problematic issue, since an international agreement had to be negotiated and concluded with a third country (Netherlands).

27 The European External Action Service has been opaque with regard to the negotiation of the special court package, making its duties unclear.

28 The establishment of the Special Court for Kosovo has been engineered in Brussels. The EU both drafted and sponsored the law on the establishment of the Special Court for Kosovo and will financially support it as well.

29 <www.kuvendikosoves.org/common/docs/ligjet/04-L-274%20a.pdf>, visited 5 October 2016.

30 <www.ec.europa.eu/enlargement/pdf/key_documents/2014/20141008-strategy-paper_en.pdf>, visited 5 October 2016.

31 Council Conclusions on Enlargement and Stabilisation and Association Process General Affairs, Council meeting Brussels, 16 December 2014, para. 57.

32 See <www.president-ksgov.net/?page=2,6,3702#.VlzPnHarTIU>, visited 3 October 2016.

33 Press statement by the Ministry of Justice of Kosovo declaring that the Law on Specialist Chambers was drafted by the EU and was later translated into Albanian and Serbian, both being official languages in Kosovo. See press statement in Albanian, <www.md-ks.net/?page=1,8,1627>, visited 5 October 2016.

34 The parliamentary opposition argued that the Special Court will lead to the demise of Kosovo’s sovereignty, it will be unaccountable to the democratic institutions of the country, and it will be a selective system of justice against those who fought for the freedom of Kosovo: see ‘Vetëvendosje në mbështetje të protestës kundër Gjykatës Speciale’, Telegrafi, 16 June 2015, www.telegrafi.com/vetevendosje-ne-mbeshtetje-te-protestes-kunder-gjykates-speciale/, visited 5 October 2016.

35 See the resolution on inadmissibility in English at <www.gjk-ks.org/repository/docs/gjk_ko_107_15_ang.pdf>, visited 5 October 2016.

36 The English version of the Law on Specialist Chambers and Specialist Prosecutor’s Office is available at <www.assembly-kosova.org/common/docs/ligjet/05-L-053%20a.pdf>, visited 5 October 2016. See Assembly’s decision No. 05-V-139 of 3 August 2015 and decision of the Assembly to enact Law 05/L-053 of the same date.

37 The Law on Specialist Chambers establishes that the Special Court will have a seat in the Republic of Kosovo and one in the host state (Netherlands). However, the seat in Kosovo will be a ceremonial one, considering that all operations of the Special Court will be run in the Netherlands. The call for applications for judges and prosecutors for the Special Court (which are referred below) prove that judges and prosecutors will be based merely in Hague. That also proves that the seat of the Special Court in Kosovo has a purely ceremonial status.

38 Government of Netherlands, ‘Kosovo court to be established in The Hague’, 15 January 2016, www.government.nl/latest/news/2016/01/15/kosovo-court-to-be-established-in-the-hague, visited 5 October 2016.

39 Balkan Transitional Justice, ‘Kosovo’s New War Court: Major Challenges Ahead’, <www.balkaninsight.com/en/article/kosovo-s-new-war-court-major-challenges-ahead-08-11-2015>, visited 5 October 2016.

40 European External Action Service, ‘Call for Nominations for the President of the Kosovo Specialist Chambers’, <eeas.europa.eu/csdp/opportunities/2016/eulex_kosovo/annex_1_-_job_descriptions_(update)_15.07.2016.pdf>, visited 5 October 2016. See also European External Action Service, ‘Call for Nominations for the Judge on Roster of International Judges of the Kosovo Specialist Chambers’, <eeas.europa.eu/csdp/opportunities/2016/eulex_kosovo/annex_2_-_job_descriptions__(update)_15.07.2016.pdf>, visited 5 October 2016.

41 On the Kosovo’s constitution, see Doli, D. and Korenica, F., ‘Calling Kosovo’s Constitution: a Legal Review’, 22 Denning Law Journal (2010) p. 51-85 Google Scholar.

42 On the importance of independence of international courts like the ICC, see e.g. Posner, E. and Yoo, J.C., ‘Judicial Independence in International Tribunals’, 93(1) California Law Review (2005) p. 68 Google Scholar ff; Mackenzie, R. and Sands, P. ‘International Courts and Tribunals and the Independence of the International Judge’, 44(1) Harvard International Law Journal (2003) p. 271 Google Scholar, at p. 271 (‘Judicial independence is recognized to be a significant factor in maintaining the credibility and legitimacy of international courts and tribunals’).

43 Certain political parties and former Kosovo Liberation Army-affiliated organisations have vocally opposed the Special Court. See ‘Kosovo Opposition Challenges War Crimes Court Vote’, Balkan Insight Magazine, available at <www.balkaninsight.com/en/article/kosovo-s-opposition-parties-seek-invalidity-of-the-special-court-08-11-2015>, visited 5 October 2016.

44 Emphasis added.

45 Case no. K026/15, CC Kosovo, decision of 15 April 2015, para. 47 ff.

46 The concept of ‘notwithstanding norm’ was first introduced in an editorial in EuConst, written by Besselink, L. et al., ‘A Constitutional moment: Acceding to the ECHR (or not)’, 11(1) EuConst (2015) p. 2-12 Google Scholar. The article argued that by inserting the ‘notwithstanding norm’ in the EU Treaties the EU accession to the European Convention on Human Rights is still possible, despite the negative Opinion 2/13 of the ECJ. Although this term is not applied in the same context here, it still connotes an almost identical legal outcome. One could also find a similar ‘notwithstanding norm’ in Art. 151 of the Cyprus constitution. In the Cyprus case, nevertheless, the nature of the norm is not absolutely exclusive, unlike Kosovo’s constitutional amendment on the Special Court.

47 An excellent account of self-contained regimes in international law can be found in Simma, B. and Pulkowski, D., ‘Of Planets and the Universe: Self-Contained Regimes in International Law’, 17(3) EJIL (2006) p. 483 CrossRefGoogle Scholar.

48 One has to note that, according to Schabas (infra n. 70), there is a difference with regard to the international personality between UN-based tribunals (the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda) and treaty-based international tribunals (Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia). The former are considered subsidiary organs of the UN, and exhibit the personality of the organisation to which they belong (Art. 7(2), Art. 8 and Art 29 UN Charter), whereas the latter have a distinct personality under international law: see Schabas, supra n. 70, p. 587).

49 Emphasis added.

50 Emphasis added. In view of this authorisation, contrasted with the principles of the Vienna Convention on the Law of Treaties, the Special Court shall have full powers to negotiate agreements in view of Art. 7 Vienna Convention on the Law of Treaties, and to adopt and authenticate in view of Art. 9 and 10 of that Convention. However, the authority to express the consent to be bound by an international agreement, in view of Art. 11 of the Vienna Convention on the Law of Treaties, is conditional on the Special Court having first sought the permission of the government of Kosovo.

51 One has to note that only UN-mandated tribunals enjoy the capacity to force state cooperation (see e.g. the International Criminal Tribunal for the former Yugoslavia case, Prosecutor v Blaskic (Case No. IT-95-14), Judgment, para. 26). On the contrary, treaty-based tribunals (such as the Special Court for Sierra Leone) cannot force state cooperation: see Schabas, infra n. 70, p. 58.

52 One has to note that, as long as the EU is directly involved in the operation of the Special Court, it will play a role in convincing states to cooperate with the Special Court.

53 Two members must be judges with international legal backgrounds.

54 Cf. the Council of Europe Committee of Ministers, in its Recommendation (94)12, has pointed out that: ‘The authority taking the decision on the selection and career of judges should be independent of the government and administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority itself decides on its procedural rules. However, where the constitutional or legal provisions and traditions allow judges to be appointed by the government, there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned above’. The model of appointing judges for the Roster, as established by the Law on Specialist Chambers, does not seem compliant with the above standard.

55 Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO.

56 The EU takes on a new role by directly managing appointments. Other international tribunals have been managed by the UN, but the EU will control the Special Court’s functions.

57 This ombudsperson will be independent of the Republic of Kosovo by Art. 24, para. 1.

58 Cryer, R., Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press 2005) p. 127 CrossRefGoogle Scholar.

59 Rome Statute of the International Criminal Court, <www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>, visited 3 October 2016.

60 Stigen, J., The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complemantarity (Brill 2008) p. 1 CrossRefGoogle Scholar.

61 The exact date of the end of NATO’s active intervention remains contested.

62 To read a simplified version of this argument, see e.g. E. Founds, Risks for the Republic of Kosovo if Parliament Fails to Establish the Special Court, GLPS Opinion, 24 April 2015, <www.legalpoliticalstudies.org/wp-content/uploads/2015/05/Riks-for-the-Republic-of-Kosovo-if-the-Parliament-Fails-to-Establish-the-Special-Court1.pdf>, visited 3 October 2016.

63 Decision of 2 October 1995 Prosecutor v DuskoTadic, ICTY Decision On The Defence Motion For Interlocutory Appeal On Jurisdiction, para. 67.

64 Ibid. para. 70 (emphasis added).

65 The Kumanovo Peace Agreement constitutes a Status of Forces Agreement.

66 The Military Technical Agreement between the International Security Force and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia (commonly known as the Military Technical Agreement or Kumanovo Agreement) was an agreement concluded on 9 June 1999 in Kumanovo, Macedonia, which formally allowed NATO troop deployment in Kosovo and brought the hostilities to an end.

67 Therefore, the two latter bases are supplemental sources of law in addition to those specified in Art. 6 of the Law on Specialist Chambers.

68 Law on Citizenship of Kosovo 2013, available in English, <www.kuvendikosoves.org/common/docs/ligjet/Law%20on%20Citizenship%20of%20Kosovo.pdf>, visited 5 October 2016.

69 Emphasis added.

70 Schabas, W., The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press 2006) p. 129 CrossRefGoogle Scholar.

71 Emphasis added.

72 See Appendix A to the Kumanovo Agreement.

73 This provision mirrors the ‘principle of ubiquity’ (Ubiquitätsprinzip) of the German Criminal Code. One must note that the ‘principle of ubiquity’ in the German perspective is broader and includes also criminal acts which are entirely committed in the territory of another state but whose effects are measurable and affect interests in the state of the forum. Art. 8 of the Law on Specialist Chambers therefore reflects a restricted form of Ubiquitätsprinzip.

74 Schabas, supra n. 70, p. 130.

75 See e.g. Blakesley, C. L., ‘Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role of Human Rights, and Issues of Extraterritoriality Under International Criminal Law’, 24(1) Vanderbilt Journal of Transnational Law (1991) p. 15 Google Scholar (‘In the United States parallel to the German concept of ubiquity is the combination of the objective territoriality or effects theory and the subjective territoriality theory in which a constituent element of the offense occurs in the United States’).

76 See generally on the position of witnesses in the context of the administration of evidence by international tribunals, Ngane, S. N., The Position of Witnesses Before the International Criminal Court (Brill 2015) p. 127 ffGoogle Scholar.

77 ECtHR 11 July 2006, Case No. 54810/00, Jalloh v Germany, para. 94; see also ECtHR 16 November 2010, Case No. 926/05, Taxquet v Belgium.

78 ECtHR 27 February 2001, Case No. 33354/96, Lucà v Italy, para. 39.

79 ECtHR 15 December 2011, Case Nos. 26766/05 and 22228/06, Al-Khawaja and Tahery v UK, para. 127.

80 ECtHR 29 March 1990, Series A No. 166, Kostovski v Netherlands, para. 42.

81 Supra n. 79, para. 147.

82 As established by United Nations Mission in Kosovo Regulations 2000/6 and 2000/64, a UN-administered transitory court system that drew to a close upon Kosovo declaring independence in February 2008.

83 ‘Bringing the truth to light – Kosovo parliament votes to set up special court’, DW Report, <www.dw.com/en/bringing-the-truth-to-light-kosovo-parliament-votes-to-set-up-special-court/a-18628067>, visited 5 October 2016.

84 Cassese, A., ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, 9(1) EJIL (1998) p. 2 CrossRefGoogle Scholar at p. 16.