The Kosovo Specialist Chambers: In Need of Local Legitimacy

[Andrea Trigoso is a qualified lawyer with an LLM and experience in International Criminal Justice. She is currently pursuing a MAS in Transitional Justice.]

The notification of the Prosecutor of intent to initiate proceedings in February this year renewed hopes of the international community in the Kosovo Specialist Chambers (KSC), mainly because after almost five years of the commencement of its work, very little progress has been achieved in the investigations and prosecution of the cases. However, the Kosovar population does not necessarily share the enthusiasm with the international community, since there is the national perception that the success of the institution will not necessarily entail a change in the transitional justice context of Kosovar society.

A study led by PAX conducted in 2017 in Kosovo on the public perception of the KSC concluded that an overwhelming majority of ethnic Albanians in Kosovo viewed the KSC’s mandate to prosecute war crimes and crimes against humanity committed only by the Kosovo Liberation Army (KLA) as unfair. The reason behind this perception was that prosecuting exclusively alleged Albanian perpetrators associated with the KLA, stained the recollection of a just war conducted in defense of the Albanian civilians that were attacked by the Serbian forces, for whom no clear legal consequences have been yet imposed. Additionally, the participants of the above study expressed their concerns that while ethnic Albanians could not apply for positions in the Court, Serbian citizens were able to do so.

Furthermore, ethnic Albanian Kosovars broadly agreed that the law establishing the KSC was adopted under pressure from Kosovo’s international allies, and that it was an unfair imposition from abroad rather than a local initiative. This perception was shared with the ethnic Serb participants of the study that had the general impression that since the KSC was forced by the International community, there was no genuine desire to see justice done, but rather the need of Kosovo’s international allies to clean the image of the political leaders that emerged from the KLA who now hold positions of power. Moreover, Serb Kosovars were very skeptical that the KSC could bring justice to Serb victims because they have lost faith in judicial mechanisms after seeing the failure on that regard of previous international and national judicial systems.

This study confirmed the lack of local legitimacy of the KSC in the perception of the Kosovar population. This local rejection can be summarized in a nutshell through the following four reasons:

1. international pressure was the main element that led to the creation of the KSC;
2.  the one-sided justice dynamic, as the KSC prosecutes crimes committed only by the KLA, who many Kosovars consider to be freedom fighters;
3. the perception that previous international justice initiatives such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the United Nations Interim Administration Mission in Kosovo (UNMIK courts), and the European Union Rule of Law Mission in Kosovo (EULEX) failed to deliver justice, and did not contribute to the reconstruction of the Kosovar society; and
4.  the lack of political support from Kosovar authorities to the KSC, that in 2018 even led to an attempt to abrogate the law that created the KSC.

Now, given that the KSC operates from The Hague and has a hybrid nature, the question that arises is why is local legitimacy of such pivotal importance for the KSC?

In Kosovo, the war has left the social fabric in ruins, and the division between ethnic Serbs and ethnic Albanians is still very latent. It is undeniably a context of transitional justice, and the measures adopted in such a backdrop, according to a normative conception,  should indeed aim to provide citizens with recognition and civic trust as mediate goals, and reconciliation and democracy as final goals. These goals are interlinked and have a bidirectional relationship. However, due to space constraints, this post will primarily focus on civic trust and reconciliation in relation to local legitimacy.

Firstly, in order to understand the relationship between these concepts with the KSC, it is necessary to define them. Suchman describes legitimacy as “a generalized perception or assumption that the actions of an entity are desirable, proper and appropriate within some socially constructed system of norms, values, and beliefs.” Therefore, local legitimacy, in this case, is the perception of the Kosovar population that the KSC is desirable and responds to their system of values and beliefs.

Moving to civic trust, De Greiff describes it as “the sort of disposition that can develop among citizens who are strangers to one another, and who are members of the same community only in the sense in which they are fellow members of the same political community.” A judicial mechanism that actually contributes to the transition should reaffirm that the victims of war crimes and crimes against humanity are rights-holders, and should re-establish the relevance of norms that the perpetrators had violated. A court will show its trustworthiness by establishing that no one is above the law, and, if it operates well, it will catalyze trust in the system and between citizens, who will use it to resolve their differences. Consequently, if the KSC enjoys local legitimacy, it will be perceived as a reliable institution that since it understands the social system of norms, values, and beliefs, it can resolve the differences that the war left between Kosovar citizens.

Furthermore, De Greiff describes reconciliation as “the condition under which citizens can trust one another as citizens again (or anew).” Nevertheless, since the relationship between this notion and transitional justice is complex, the most that transitional justice measures can do in this respect is contribute to making institutions reliable and trustworthy. The KSC, by lacking the impetus of local legitimacy, has blatantly neglected and disregarded this goal, and even though it is a hybrid Court supposedly closer to the context and born from local authorities, it is following the same path of failure of the ICTY, that was an Ad-hoc Tribunal created by the UN Security Council in New York, and that never accomplished local legitimacy in the countries of the former Yugoslavia.

Accordingly, in order to achieve the goals of civic trust and reconciliation, and to actually contribute to the transition of Kosovo, the KSC has to listen and respond to what local legitimacy dictates, otherwise it will remain a mere academic exercise of International Law, condemned to satisfy the international community but with no real impact on the local society that it is designed to protect.

The good news is that the KSC is still in time to gain local legitimacy and have a real impact in the Kosovar society. The latest activities of the Prosecutor have put the KSC in the spotlight again, and with some political will, a few measures that target the enhancement of local legitimacy and the achievement of the transitional justice goals mentioned above can be implemented. These measures should encompass:

1. The extension of the KSC’s mandate to also investigate Serbian attacks, as prosecuting crimes committed by both sides to the conflict will create trust among citizens of both ethnicities and establish trustworthiness in the Court;
2. The inclusion of Kosovar staff and judges in the KSC, due to their unique understanding of the deeper nuances of the ground realities, they have a more accurate representation of what local legitimacy means for Kosovo and a better understanding of the facts investigated and prosecuted in the KSC;
3. Overcoming the secrecy of proceedings, making them and any related information more accessible to the public. So far, this secrecy has only increased the distance between the KSC and the Kosovar people, followed by rejection and a lack of credibility in the institution;
4. Bridge-building through local initiatives. The recent Draft Normative Act on the Truth and Reconciliation Commission of Kosovo might be an opportunity to establish communication and work together with a local mechanism.

Finally, it is crucial that International Criminal Tribunals shift their attention from the international community to the specific contexts of the countries where the crimes have occurred, because it is there where it lays the justification for any action they may take. In the case of Kosovo, it is absolutely necessary to ensure that International Criminal Justice begins to fit in the broader picture of the Kosovar community in transition and that it has a real impact on the people affected by the conflict. It is about time that the KSC is seen through the Pristina lens, rather than the Hague lens.