International justice: Kosovo Specialist Chambers on cusp of indicting war criminals

New premises, an increasing volume of witness testimony, judicial independence and a determination to learn from the past are the hallmarks of one of the world’s newest war crime tribunals.
The Kosovo Specialist Chambers (KSC) and Specialist Prosecutor’s Office (SPO) were established in 2015 after a 2011 Council of Europe report alleged that ‘serious human rights violations’ against Serbs, Albanians, Romas and other minorities had been committed during and in the immediate aftermath of the 1998-99 conflict in Kosovo.
The KSC and SPO are part of Kosovo’s legal system, but are based in The Hague and receive funding from the European Union. All staff and the judges that sit on the court are international, including Ekaterina Trendafilova, an experienced Bulgarian lawyer and jurist who became president of the KSC in January 2017.
Trendafilova has considerable pedigree. In the late 1990s, she led a working group tasked with reforming the Bulgarian Criminal Procedure Code in line with international standards and represented Bulgaria at the UN Commission for Crime Prevention and Criminal Justice. More recently, from 2006-2015, she served as a judge of the International Criminal Court.
Judges are like racing horses that are just waiting for the pistol to let them do their job
Ekaterina Trendafilova
President, Kosovo Specialist Chambers
Allegations of witness intimidation and interference were raised during previous investigations into war crimes in Kosovo, including those conducted by the International Criminal Tribunal for the former Yugoslavia (ICTY). However, Trendafilova believes that the KSC's existing set-up, its robust witness protection programme and lessons learned from other tribunals will ensure it rises to any challenges. ‘The relocation of proceedings outside Kosovo, the election of only international judges, the recruitment of international staff and additional protective measures, particularly regarding the relocation of witnesses and victims, all add additional safeguards,’ says Trendafilova, ‘in particular, against the leakage of information, which could put at risk witnesses, victims and anyone else [involved in the process].’
Four years since its inception, there’s growing anticipation that the SPO could be on the cusp of finally indicting individuals accused of crimes, including killings, abductions, detentions, sexual violence and illicit trafficking of human organs in Kosovo. Expectations were further heightened in June, when the KSC and SPO moved to new premises, equipped with holding cells, a dedicated courtroom and the ability to livestream proceedings. It stepped up another gear in July when Kosovo’s Prime Minister Ramush Haradinaj resigned after being summoned as a suspect.
Ekaterina Trendafilova
Indictments fall under the specific mandate of the SPO, which assesses the veracity of any allegations before filing charges, which are then confirmed by an independent judge. Trendafilova says Jack Smith, the US prosecutor serving as the SPO’s Specialist Prosecutor, has been ‘very actively investigating’ allegations since he took office in September and she’s hopeful there will be an indictment soon.
Much of Trendafilova’s work to date has centred on establishing the best legal framework to ensure proceedings are ‘fair, expeditious, safe, secure and economic’. As with any tribunal, the independence of the judges is paramount. 19 judges from a range of countries have been appointed to the KSC’s roster after a rigorous independent selection process. Trendafilova recently assigned three of the judges to prepare a paper on best practice management. This was circulated to all 19 judges and they held a three-day workshop in Bulgaria to discuss the paper.
While the judges’ diverse backgrounds and experience of different legal systems is extremely valuable, Trendafilova hopes the paper will act as a useful ‘handbook’ towards consistency. Judges have yet to preside over proceedings, but Trendafilova has no doubt that they are ready: ‘Judges are like racing horses that are just waiting for the pistol to let them do their job.’
Trendafilova believes the outreach activities and the work of the KSC’s Public Information and Communication Unit have been vital for upholding the legitimacy of the tribunal in Kosovo. ‘This is very important because we might do an outstandingly excellent job, but if people in the region and others don’t understand the nature of our institution, the genuineness of our mandate and of everyone involved in the functioning of the Specialist Chambers, then our work might be in vain,’ she says.
Mark Ellis, Executive Director of the IBA, believes this hybrid court approach will succeed in bringing individuals complicit in these heinous crimes to justice. ‘I’ve seen first-hand the destruction that took place in the former Yugoslavia and the need to bring justice to that region is absolutely paramount,’ he says. ’This is a different format and structure, with lots of different challenges, but one that I think could be successful. This was already demonstrated with the most recent decision by the Kosovan Prime Minister to put himself before the court, which is a very important development.’
Ellis says Trendafilova is ideally placed to preside over proceedings. ‘To have a top jurist and also somebody that’s not from a traditional western country in that position is important for the credibility and legitimacy of the court,’ he says. ‘The evidence is also quite clear that women suffer a disproportionate part of deaths, injuries or crimes directed towards civil populations, so having a female perspective in a court is exceedingly helpful and, in this case, really crucial.’
Trendafilova has a year and a half left of her tenure. She says she has no interest in leaving an individual legacy, but is determined that the KSC and SPO will bring justice to the people of Kosovo. ‘I believe that we are going to give what people in the region deserve,’ she says. ‘For anyone interested in positive developments in the field of international criminal justice, I hope that the contribution our institution is going to make might be considered to be not only humble, but great. But this is not for me to say, it will be for those who are going to be our watchdogs.’