The Kosovo Specialist Chambers – A Chronicle of Failure
Jason Steinbaum, former staff director of the House Foreign Affairs Committee and adjunct professor at American University in Washington, D.C., argues that the KSC failed both Kosovo and justice.
The Kosovo Specialist Chambers, also known as “the Special Court,” was created for the wrong reason, in the wrong way, under the wrong law, and with the wrong mandate. Other than that, Mrs. Lincoln, how was the show?
That, in short, is why the Court has failed.
Before the Court was established, the U.S. government consistently downplayed allegations against the Kosovo Liberation Army (KLA), the rebel group that fought for Kosovo’s independence during the 1998–1999 war. U.S. officials generally acknowledged that no army is perfect, especially in the fog of war, but maintained that the KLA had, on the whole, conducted itself reasonably. Some of the most serious accusations -- including claims that the KLA had engaged in terrorism or drug trafficking -- had already been publicly dismissed in a CIA report responding to an amendment by Rep. Eliot L. Engel, a strong supporter of Kosovo who later became Chair of the House Foreign Affairs Committee.
A few years later, a new round of allegations emerged from Swiss parliamentarian Dick Marty. Marty claimed that the KLA had engaged in organ trafficking, largely in Albania. Doubts increasingly arose because Marty offered little evidence to support his assertions. Nevertheless, in January 2011, the Council of Europe adopted Marty’s report essentially verbatim, giving the call for an investigation the imprimatur of a major European institution.
For several years, the State Department gave Marty’s claims little, if any, credence, even after the Council of Europe resolution. Then, almost overnight, the U.S. changed its position. American diplomats went from brushing aside Marty’s report to insisting in 2015 that an international court was needed to investigate its allegations. Kosovo, they argued, would benefit by endorsing a legal process that would place the new country firmly on the side of justice and accountability.
But the hammer was sitting just behind the door. If Kosovo did not create the Court, U.S. diplomats warned, it would be created by the UN Security Council -- though, of course, it could not happen if the U.S. used its veto. More importantly, Kosovo was told it should act without delay because the United States, its strongest and most consistent ally, was asking -- read: demanding -- that it do so.
Naturally, a superpower like the United States has many global interests, and sometimes those interests collide. While the Marty allegations were simmering in Europe and being largely ignored by Washington, the Obama Administration was pursuing its top international priority: a nuclear agreement with Iran. Nearly every foreign policy objective took a back seat to those negotiations, and maintaining the international coalition behind them was essential. That group, known as the P5+1, included the five permanent members of the UN Security Council plus Germany.
As a member of the P5+1, Russia had substantial leverage over the United States, given the importance President Obama placed on keeping the Iran coalition intact. If Russia or another partner requested a diplomatic move, it received serious attention. That is where the Specialist Chambers comes in.
There is no public record showing that Russia, or any European country, threatened to leave the P5+1 because of the Marty report. Still, many believe Russia, and possibly some European interests, urged the United States -- Kosovo’s senior partner -- to pressure the young country into creating a court to investigate and prosecute the allegations.
From President Obama’s perspective, a Kosovo court staffed by international judges and ostensibly committed to the highest legal standards likely appealed to his legal training and sense of fairness. For him, it was an easy concession. The instruction went down to the U.S. Embassy in Prishtina and throughout the State Department: Kosovo had to get this done.
So why did the United States demand the creation of the Specialist Chambers? Not primarily to advance justice or accountability for organ trafficking or other crimes by the KLA, but to serve the unrelated goal of securing the Iran nuclear deal.
Suddenly, American diplomats in Prishtina had new instructions: press the Kosovo government to create the Court and do not take no for an answer. Visiting dignitaries were told that Kosovo had to act or face a parade of horribles. I experienced this firsthand during a visit with Congressman Engel, for whom I worked for 27 years. Ambassador Tracey Jacobson surprised us not only with the sharp shift in U.S. policy, but also with the urgency the American government attached to establishing the Court. She strongly pressed Congressman Engel to urge the Kosovo government to pass the necessary law.
Reluctantly, and without knowing the reasons behind the policy change, Rep. Engel conveyed to Hashim Thaçi that the United States very much wanted Kosovo to establish the Court. Engel added that for Kosovo to move forward and be successful -- meaning maintaining US support -- it seemed necessary and important to create the Court. Like others, we came to regret the position we took and the sad and wasteful mess that the Court has become.
But the Court was not only created for the wrong reason. It was created in the wrong way, under a deeply flawed law.
American demands were expressed not only through diplomatic pressure. U.S. legal experts also had a heavy hand in drafting the constitutional and legal provisions needed to establish the Court. The result was a body made part of Kosovo’s judicial system, but in name only. Not one Kosovar judge sits on this Kosovo court, and the Court itself resides not in Kosovo, but in The Hague. Under the laws the United States pressured Kosovo’s Assembly to adopt, all meaningful authority over Kosovo’s own Court was stripped from Kosovo’s government. This framework left Kosovo with no real ownership of what is only nominally its own Court. The people of Kosovo have virtually no attachment to this coercively created judicial body, leaving it with little, if any, popular legitimacy. After telling the people of Kosovo for years that they are sovereign, taking such important proceedings out of their hands only diminishes that message.
Then there is the mandate.
It is axiomatic that anyone who commits war crimes should be prosecuted and tried. Period. That is true for Serbs, Kosovars, and everyone else.
But the mandate of this Court is deeply problematic. According to Human Rights Watch, “the overwhelming majority of war crimes in Kosovo were committed by Serbian and Yugoslav forces, for which no one has been held to account, including the organised transfer of hundreds of bodies to Serbia, where they were dumped in mass graves.” Human Rights Watch further reported that “rape was used as an instrument of war in Kosovo, and it should be punished as such. The men who committed these terrible crimes must be brought to justice.”
Given the grave crimes committed against Kosovo Albanians, creating a court to try and punish their wartime leaders seemed perverse. Indeed, the Kosovo Specialist Chambers may be unique: a court created to prosecute the victims and victors of a war, rather than the principal perpetrators and defeated aggressors. Kosovo Albanians feel this contradiction viscerally. Some have told me they believe the United States turned its back on them for reasons they still cannot understand.
They see former leaders sitting in jail for years without convictions. Among the defendants are Hashim Thaçi, a former president and prime minister, and Kadri Veseli, a former speaker of parliament. These are prominent individuals who voluntarily turned themselves in when indicted. They are not flight risks, and they remain innocent until proven guilty. Basic principles of international law support their freedom while investigations and trials proceed. If witnesses must be protected, there are ways to do so without imprisoning people who have not been convicted of a crime.
The Court’s mandate becomes even stranger when measured against its original purpose. It was created to investigate the allegations in the Marty report, which focused largely on organ trafficking. Yet the indictments do not even mention organ trafficking. Instead, they focus on leadership culpability for retaliatory attacks by low-level actors. In other words, the central reason the Court was created no longer drives the proceedings.
It is long past time to bring justice to the victims of the Kosovo war. Hundreds of thousands were driven from their homes. Many thousands were murdered. Thousands more were raped. Justice will come when the perpetrators of those crimes are held accountable.
We know the vast majority of those crimes were committed by Serbian security forces. They are principally the ones who should be on trial.
Does that mean Kosovars who committed crimes should escape accountability? No. But if Kosovars are the only ones held accountable, something is seriously wrong with the system. Until that imbalance is corrected, the Kosovo Specialist Chambers will bring little peace, little trust between communities, and little long-term reconciliation in Kosovo or the wider region.
Jason Steinbaum is Adjunct Professor of Government at The American University in Washington, DC. He is a member of the Board of Trustees of Rochester Institute of Technology Kosovo and a Peace Fellow at the Public International Law and Policy Group. He served in Congress for more than 30 years as Staff Director of the Foreign Affairs Committee of the House of Representatives and Washington Chief of Staff for Rep. Eliot L. Engel (D-NY).
This editorial was published based on interview questions by Petrit Selimi, editor of the “Bridges of Memory” newsletter and former Foreign Minister of the Republic of Kosovo.