PRISTINA/BELGRADE, 12. AUG. 201 -MPs in Pristina finally voted to set up the court to try war crimes suspected former paramilitary Kosovo Liberation Army guerrillas, but protecting witnesses and assembling strong enough evidence to convict suspects could be formidable challenges. During the trial of former KLA leader Ramush Haradinaj at the International Criminal Tribunal for the Former Yugoslavia, a number of witnesses were killed and others refused to appear before the UN-backed court. At local courts in Kosovo administrated by internationals, some witnesses have changed their testimonies during trials or have allegedly been intimidated into not testifying at all. The new ‘specialist chambers’ of the War Crimes Court, as they are diplomatically described in the legislation adopted by Kosovo MPs, are expected to be up and running and to take on their first cases in the first half of next year. They are due to try former Kosovo Liberation Army fighters for their alleged involvement in the killings, abductions, illegal detentions, organ harvesting and persecution of Serbs, Roma and Kosovo Albanians believed to be collaborators with the Serbian regime or political opponents of the KLA leadership. According to BIRN sources close to the prosecution, indictments have already been prepared for a number of senior KLA officials. But the major challenges for the new court will be to secure witness protection and to obtain the cooperation of all Kosovo’s institutions in areas ranging from evidence gathering to police and judicial assistance. Jelle Janssens, the Belgian author of the book ‘State-Building in Kosovo’, said that “the biggest problem facing the international community is the lack of trust from the Kosovo population in the witness protection programme provided by the international community”. According to Janssens, protecting witnesses is hard because Kosovo is so small. “The reason why the size of Kosovo is important is because law enforcement officials see little opportunities in Kosovo to relocate witnesses. You might give someone a new identity, but the risk of being seen and recognised by someone travelling from one region to another (from Peja to Prizren for example) can be quite high considering the size of Kosovo,” he told BIRN. “Moreover, law enforcement officials have a feeling that Kosovo is dotted with close-knit communities. That means that everyone knows everyone in a certain community,” he added. The issue of witness protection has troubled all the courts that have prosecuted former KLA fighters so far. One of the main reasons given for establishing the new court by its international advocates were poor witness protection and the inability of the EU’s rule of-law mission EULEX and Kosovo institutions to deal with high-profile cases. The law on the specialist chambers passed by the Kosovo parliament says that “special measures” will be adopted to protect vulnerable witnesses, and the EU will lay out its witness protection plan in a series of procedural rules that it is currently drafting. According to BIRN’s sources within the EU, some of the witnesses who will be called to testify have already been relocated from Kosovo to other countries. Janssens said that establishing evidence strong enough to convict defendants will be another major issue. “Proving the alleged crimes will also be a big challenge for the new court, as some alleged crimes are 15-16 years old. But when proven and people are being convicted: managing the public outcry in Kosovo will be the biggest challenge,” he said. Many people in Kosovo, including some officials – especially those who were part of the Kosovo Liberation Army’s wartime leadership – see the court as an attempt to denigrate what they believe was a legitimate armed struggle against oppressive Serbian rule. Geert-Jan Knoops, a Dutch professor and lawyer with experience at the International Criminal Tribunal for the Former Yugoslavia, said this means that it could be difficult for the new court to get the assistance it needs from officials in Pristina. “One of the biggest challenges for this new court will be: to obtain state cooperation,” Knoops told BIRN. “Without the cooperation of states and particularly the Kosovo administration itself, it will be difficult for the prosecutor and also the defence to investigate a case and – for the defence – to have a fair trial. This is also the experience at other international courts where I work as defence counsel,” he said. The law on the specialist chambers says that they can request assistance from any Kosovo institution at any time, but it doesn’t outline the possible sanctions for obstruction or non-compliance. The new chambers will be based in both Kosovo and a so-called ‘host state’. That state still needs to be confirmed, although the most likely location is the Netherlands, where the International Criminal Tribunal for the Former Yugoslavia is also based. The court will also need judges, who will all be internationals. “At this stage, the next steps include the finalisation of the Host State agreements and negotiations on location and premises. This is to be followed with the selection of judges and recruitment of the staff of the Specialist Chambers and Specialist Prosecutor’s Office,” the EU office in Kosovo told BIRN. In March 2014, the European Union asked the Netherlands to assist its Special Investigative Task Force in possible criminal proceedings after its investigation into alleged crimes by Kosovo Liberation Army members was complete. The 2014 ministerial letter, obtained by BIRN, says that the EU picked the Netherlands because of “the unique Dutch experience in the field of international jurisprudence”. The Special Investigative Task Force conducted a three-year investigation into allegations initially made by Council of Europe, whose rapporteur claimed in a report in 2011 that crimes against civilians such as kidnapping, torture and organ-harvesting were committed by KLA members during the Kosovo conflict. The task force’s findings will provide the basis for prosecutions at the new court. The Dutch government told BIRN that it “has not yet taken a decision on the hosting of the mentioned tribunal”. “As a result, no information can be provided on location, costs or the selection of judges,” it said. According to BIRN’s sources in the EU, Kosovo’s foreign ministry first needs to officially request assistance from the Dutch government and sign an agreement which will regulate the functioning of the court. Kosovo’s foreign ministry, currently headed by the former political chief of the KLA, Hashim Thaci, who is also one of the key figures named as a suspect in the 2011 Council of Europe report, has not yet filed the request to the Dutch government and declined to comment on the subject. Kosovo’s justice ministry, which drafted the laws, also declined to comment, saying that the foreign ministry was responsible for the matter. The legislation passed by the Kosovo parliament also says that the new court will have its own budget, which will be independent from the state budget. The International Criminal Tribunal for the Former Yugoslavia cost around $300 million a year to run, but no estimate has yet been offered for the likely budget of the Kosovo court. “The financial details of the project also depend on the finalisation of the various ongoing talks concerning the practicalities around the Specialist Chambers such as premises. It further remains the prerogative of the EU member states to eventually decide on the overall budget. It is therefore not possible to pre-empt any decisions,” the EU office in Kosovo told BIRN. According to Knoops, one of the recurring problems for international courts has been the issue of funding. “The amount of cases and investigations to be dealt with by such courts depends on its budget,” he said. “For instance, the International Criminal Court has an annual budget of around 110 million euros. Based on such a budget, the prosecutor can perhaps investigate three to five cases maximum per year. The ‘success’ of the Kosovo court will therefore also in part depend on its budget,” he added. Meanwhile the Kosovo government pledged to secure funding for the ex-KLA suspects on trial. On the same day that it approved the Law on Specialist Chambers, the Kosovo parliament also approved the Law on Legal Protection and Financial Support for Potential Accused Persons in Trials Before the Special Court. According to this law, anyone who is accused has the right to ask for their defence costs to be paid for from the state budget of Kosovo. Their family members can also get financial support, while defendants who are found not guilty have the right to ask for compensation. Again, however, concrete figures have not yet been given – just one of several questions about the new court that have yet to be publicly answered.
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