It is a time of change in the international criminal law scene in the Hague, Netherlands.
Heads are turning now to a new specialist war crimes court recently approved by the Kosovo parliament. The Court will be officially known as the Kosovo Relocated Specialist Judicial Institution.
The Court is being funded by the European Union (EU) and is being setup as a precondition on Kosovo being considered for membership with the EU.
The war in Yugoslavia may have taken place in the 1990s but the repercussions are still being felt today. In 1987, Serbian president Slobodan Milosevic announced the abolition of Kosovo’s autonomy and placed the province under direct control of Serbia in 1989. Kosovo’s ethnic Albanian majority fought an insurgency against Serbian forces in the late 1990s. NATO then joined the war and bombed Serbian positions; Kosovo was taken out of the hands of Serbia and placed under United Nations Mission in Kosovo (UNMIK).
The Court will investigate alleged war crimes committed by ethnic Albanian fighters during the Yugoslav war in the 1990s. The now-disbanded Kosovo Liberation Army (KLA) will be the prime focus.
The Court will have jurisdiction over crimes committed between 1 January 1998 until 31 December 2000 that were committed or commenced in Kosovo. Crimes in Albania may be investigated as well, as many of the prisoners of the KLA that were taken to that country.
A 2010 report by the Council of Europe accused the KLA of abductions, murders and organ-harvesting. The report by Dick Marty, a Swiss lawyer, stated that previously, “the international organisations in Kosovo favoured a pragmatic political approach, taking the view that they needed to promote short-term stability at any price, thereby sacrificing some important principles of justice.”
“For a long time little was done to follow-up evidence implicating KLA members in crimes against the Serbian population and against certain Albanian Kosovars,” he said (Council of Europe, 10). The perception was that justice so far belonged to the so-called victors of the war in the Balkans, as seen by appalling crimes uncovered by the International Criminal Tribunal for the Former Yugoslavia .
Predictably, the new approach of the Court is already causing controversy because many of the former soldiers of the KLA in the hierarchy are now senior members of the new Kosovo Parliament.
Many of the top politicians will be questioned, including Foreign Minister Hashim Thaci who has had serious allegations levelled against him. Prime Minister Isa Mustaf has said “Finding the truth about some allegations from during and after the war is a challenge that we have to deal with.”
Evidentiary hurdles – such as coaxing witnesses to testify before their leaders in the Hague – are anticipated by international experts.
The Court – composed of international judges – will be part of Kosovo’s judicial system but will have primacy over all other courts in Kosovo. Proceedings will be held in the Netherlands in the main, alongside other international courts and tribunals.
The maximum sentence the Court can impose is life imprisonment, with prison terms served in where States are willing and able.
There will be no links to the International Criminal Tribunal for the Former Yugoslavia – now in its final days – though its jurisprudence is considered as influential.