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Explainer: New Hague Tribunal Looks To Avoid Mistakes Of Past Kosovar Prosecutions

Former Kosovo Liberation Army commander Rrustem Mustafa leaves from Pristina for The Hague and an appearance before the Kosovo Specialist Chambers on January 13.

This time it will be different.

At least that's the hope of the United States and European Union with the start up of the Kosovo Specialist Chambers (KSC) in The Hague.

Tasked with confronting one of the most painful periods of Kosovo's troubled history, the Specialist Chambers were heralded by the West as a vital step forward, even if it comes almost two decades after the end of the armed conflict between Kosovar Albanians and Serbian forces.

On January 14, the court finally began operation with the questioning of Rrustem Mustafa, a former commander of the Kosovo Liberation Army (UCK) about his role during the bloody 1998-99 Kosovo independence war that pitted forces of Yugoslavia -- by that point consisting of Serbia and Montenegro -- against the Kosovo Albanian rebel group.

The new court to try war crimes that took place in Kosovo follows the International Criminal Tribunal for the former Yugoslavia (ICTY), the United Nations Mission in Kosovo, and the EU Police and Justice Mission, or EULEX.

But how will the KSC differ from its predecessors?

Its supporters say this time, its specific mandate and jurisdiction will ensure trials avoid the witness-tampering alleged during previous attempts to prosecute defendants such as current Prime Minister Ramush Haradinaj, who was twice acquitted on charges amid allegations that two critical witnesses were intimidated.

Its detractors -- mainly Kosovo's dominant ethnic Albanian community -- say it won't differ and see it as little more than a witch hunt that ignores Serbian crimes against ethnic Albanians.

So what is the Kosovo Specialist Chambers? And how does it actually differ from the ICTY?

The KSC was created in 2015 when Kosovar lawmakers amended the constitution to allow for the passage of the Law on Specialist Chambers and the Specialist Prosecutor's Office.

Unlike the ICTY, which was established as an ad hoc court by the United Nations and prosecuted cases according to international law, the KSC is guided by Kosovo's legal statutes and mirrors each level of the Kosovar court system: the Basic Court of Pristina, the Court of Appeals, the Supreme Court, and the Constitutional Court.

They know that if they're going to be successful, they have to ensure that there are witnesses who are going to testify, even though it's going to be very challenging and very complex."
-- Mark Ellis of the International Bar Association

The court may be located on Dutch soil, funded by the European Union, and staffed completely by an international legal team, but it is nonetheless a Kosovar court. Think of it in similar terms to how an embassy is still its own sovereign territory although located in a foreign country.

The KSC also has a very targeted mandate of investigating incidents outlined in a 2011 report by Council of Europe Special Rapporteur Dick Marty that expressed concerns that "serious crimes" had been committed in Kosovo between January 1998 and December 2000, against Serbs, Kosovar Albanians suspected of being collaborators, and other individuals who had remained in Kosovo at the end of the armed conflict. The allegations include trafficking in human organs by the KLA.

"The jurisdiction of the Specialist Chambers is not limited by any amnesty that may be granted under the constitution of Kosovo. Judgments of the Specialist Chambers are also not subject to any pardon that may be granted under the constitution," notes Robert Muharremi, a professor at the European School of Law and Governance in Pristina.

While it may escape much of the political influence from inside Kosovo, one of the main challenges facing the KSC is convincing witnesses to testify, and then shuttling them to the Netherlands to do so.

During trials in national courts in Serbia and Kosovo, as well as international institutions such as the ICTY, which wound down its operations last year, witness intimidation and interference are a well-documented problem.

The problem became so bad in her dealings with Kosovo war crimes that former ICTY Chief Prosecutor Carla Del Ponte once complained publicly that "the investigation of the Kosovo Liberation Army fighters appeared to be the most frustrating of all the investigations done by the ICTY," in large part because "witnesses were so afraid and intimidated that they even feared to talk about the [UCK] presence in some areas, not to mention actual crimes."

Securing the support of witnesses before the Kosovo Special Court for war crimes will undoubtedly be a challenge and a complex process, experts say.

Mark Ellis, head of International Bar Association based in London, has seen how hard it can be to build a solid case when witnesses feel pressured in such tight-knit communities where the person they testify against may be seen locally as a war hero.

Ellis, who acted as legal adviser to the Independent International Commission on Kosovo from 1999 to 2000, says failing to pay enough attention to witness protection was a mistake in the past and a lesson that appears finally to have been learned as the EU is dedicating more funds to address the issue because "it will be too late later on."

"You don't have to look too far to understand the challenges that the Chambers has versus the failure of the ICTY in ensuring that witnesses are protected and that there's no intimidation, because it existed at the ICTY, and the Special Chambers now hopes that it will not have to repeat those mistakes," he told RFE/RL in an interview.

"It's providing more attention on the issue of protecting witnesses, protective measures, ensuring there's no intimidation of witnesses probably than any other court in the past because it knows how complex Kosovo is and how complex the conflict was. They know that if they're going to be successful, they have to ensure that there are witnesses who are going to testify, even though it's going to be very challenging and very complex," he added.

The KSC has measures in place to protect witnesses, including hiding their identity, giving testimony in private and closed court sessions, and one-way closed-circuit video links to keep the location of witnesses from being known.

"Protective measures are usually ordered before the witness testifies, to allow time for their implementation. However, there may be instances where such measures are ordered by the judges during the testimony to protect certain information," according to Angela Griep, spokeswoman for the chambers.

But even with safeguards for witnesses, some legal experts say the court will have difficulty convincing some to come forward, even though those asked to come are compelled to do so and face fines and possible imprisonment if they avoid the court.

Mustafa, who says he was invited as a "suspect witness," and his attorney spent about 17 hours being interviewed this week.

Former Kosovo Liberation Army commander Sami Lushtaku
Former Kosovo Liberation Army commander Sami Lushtaku

An interview with Sami Lushtaku, another former UCK commander, began on January 16, according to one of his lawyers, Arian Koci. Briton Geoffrey Nice, who led the ICTY prosecution of former Serbian President Slobodan Milosevic, is also representing Lushtaku.

Others, including Raimonda Rreci, the first female UCK member to be summoned, have been invited for interviews but say the intent of the interview is unclear.

Rreci, who lives in the United States, says she has nothing to hide and will answer any questions she faces, even though she's unsure of her status.

Some 13,000 people died in Kosovo's war for independence, most of them ethnic Albanians.

The conflict ended in June 1999 following weeks of NATO air bombardments against the Yugoslav Army and allied police forces that are accused of committing atrocities against ethnic Albanian civilians.

Despite its international support, few inside the country are happy about the KSC.

Twice in recent years, Kosovar lawmakers have tried to repeal the law on the KSC, saying it discriminates against former Kosovar Albanian guerrillas, whose ranks included President Hasim Thaci.

"The jurisdiction is framed in a unique way. It is essentially focused on one side of the conflict, namely the [UCK]. This is novel in the sense that it focuses on accountability of the 'victors' of the conflict, rather than the 'vanquished,'" according to Carsten Stahn, professor of international criminal law and global justice at Leiden University, just outside The Hague.

"The absence of domestic judges avoids inequalities between judges. But it might also entail downsides in terms of diversity of expertise and local perception," he adds.

It's those perceptions of the court that may ultimately decide whether it is judged as a success or a failure.