Interview with the President of the Kosovo Specialist Chambers in The Hague, Ekaterina Trendafilova: The Court is Ready for its First Indictments

Jan Lhotský

The Kosovo Specialist Chambers and the Specialist Prosecutor’s Office (KSC) is a new hybrid criminal tribunal that combines elements of both international and national law. Although being formally part of the judiciary of Kosovo, it has a seat in The Hague. Why was it established?

From 2011 onwards, the European Union strongly supported the establishment of a new hybrid tribunal that could investigate particular crimes that were allegedly committed or commenced on the territory of Kosovo.

After more than a year of preparations the court plans to move from provisional premises into its final building where the future proceedings should take place. The President of the KSC, Ekaterina Trendafilova, was very kind and shared her experiences and views with the Czech Centre for Human Rights and Democracy.

 

Professional career in criminal justice

Madame President, thank you for accepting our invitation for an interview. Could you please, at first, describe your professional background and the steps that led you to The Hague?

My field of interest has always been criminal justice and the related areas of human rights law and international humanitarian law. As a professor at Sofia University, “St. Kliment Ohridski”, I lectured extensively in all these fields. I further enriched my knowledge in comparative criminal law and criminal justice during my stay in Germany and the United States as a Humboldt and Fulbright scholar.

Apart from my academic career, I practiced criminal law as a deputy district attorney at the Sofia District Court and later as a barrister registered with the Bulgarian Bar. Before joining the International Criminal Court (ICC), I represented Bulgaria in the United Nations Commission for Crime Prevention and Criminal Justice in Vienna and, as a European expert, I participated in various projects related to criminal justice in Bulgaria as well as countries of the former Yugoslavia.

In 2006, I was appointed to the ICC where I served as the Presiding Judge of the Pre-Trial Chamber II and the President of the Pre-Trial Division. I was also a member of the Appeals Chamber in a number of cases, adjudicating both interlocutory and final appeals. After the end of my term at the ICC in March 2015, I was selected and appointed as the President of the Kosovo Specialist Chambers (KSC).

During your term of office at the ICC, which cases did you work on?

I served on the Appeals Chamber in the first two appeals in the cases of the Prosecutor v. Thomas Lubanga Dyilo, which dealt with the merits as well as the issue of reparations, and the Prosecutor v. Mathieu Ngudjolo Chui. With regards to the latter, it was the second time in my nine-year mandate at the ICC that I disagreed with the majority.

In my capacity as Presiding Judge of Pre-Trial Chamber II and as member of Pre-Trial Chambers I and III, I was involved in most of the situations and cases on their agenda.  For instance, the first case of the Prosecutor v. Jean-Pierre Bemba Gombo, the former vice-president of the Democratic Republic of Congo, the cases of Bosco Ntaganda, also Joseph Kony and others such as the complicated cases in the context of the situation in the Republic of Kenya originally against six suspects, inter alia, the current president of Kenya Uhuru Muigai Kenyatta and the vice-president William Samoei Ruto.

Finally, I was also involved in the case against the president of Sudan, Omar Al Bashir, as well as in a number of other cases, which are still under seal. In sum, it was a challenging experience providing me with the opportunity to examine innovative and interesting legal issues and to come up with an interpretation of some parts of the Rome Statute, the Rules of Procedure and Evidence and the Elements of Crimes.

 

Why the Kosovo Specialist Chambers?

Now let us understand the reasons the “Kosovo tribunal” was established here in The Hague. Could you explain the course of events related to the creation of the KSC?

Since I did not participate in the political discussions, I can speak for myself only as an outsider who followed the development leading to the establishment of the KSC. The roots of the KSC can be traced back to the book by Ms. Carla del Ponte where she expressed her concerns over some of the crimes committed in the territory of Kosovo which remained outside the scope of investigation and prosecution of the International Criminal Tribunal for the former Yugoslavia (ICTY). These shortcomings were later reflected in the report prepared by Swiss lawyer, Dick Marty, for the Council of Europe Parliamentary Assembly, titled “Inhuman treatment of people and illicit trafficking in human organs in Kosovo“. Furthermore, this report of January 2011 called for proper investigation of numerous allegations of war crimes, crimes against humanity and other crimes committed in Kosovo.

In 2011, the European Union established a Special Investigative Task Force (SITF) to collect evidence related to these allegations. After three years, the Chief Prosecutor of the SITF, Clint Williamson, announced that the evidence obtained was of sufficient weight to file an indictment. In order to address these allegations, there had to be an adequate institution for proper judicial proceedings meeting the international standards of fair trial and the other rights of accused persons, as well as ensuring the security of witnesses.

Following a 2014 Exchange of Letters between the then, High Representative of the Union for Foreign Affairs and Security Policy, Ms. Catherine Ashton, and the President of Kosovo, Ms. Atifete Jahjaga, the Kosovo Assembly ratified the international agreement on the creation of the KSC. Soon thereafter, the Kosovo Constitutional Court rendered its judgment considering whether the establishment of the KSC would be in conformity with the Constitution of Kosovo. Finally, on 3 August 2015, the Assembly adopted Article 162 of the Constitution of Kosovo and the Law on Specialist Chambers and Specialist Prosecutor’s Office by which the KSC came into existence.

With regard to its structure, the KSC mirror each level of the court system in Kosovo – Basic Court, Court of Appeals, Supreme Court and Constitutional Court.

Was it necessary to create a new tribunal? Why were the ICTY or domestic courts not able to deal with these allegations?

First, in relation to the Kosovo judicial system, the international crimes to be addressed involve complicated legal issues, which are very difficult to be handled by purely domestic institutions. In addition, because of the sensitivity of proceedings, the EU and Kosovo authorities agreed that the investigation and prosecution of the crimes would be conducted in a more efficient manner by an institution relocated outside the territory of Kosovo.

Naturally, it is reasonable to ask why the ICTY could not deal with these cases. Primarily, the ICTY ceased its operation in November 2017. More importantly, its jurisdiction was limited only to crimes committed in the former Yugoslavia during the armed conflict while the report released by the Council of Europe examined crimes going beyond this territorial and temporal scope, i.e. both in Kosovo and Albania and after the end of the armed conflict. For these reasons, the ICTY was not in a position to fully address all crimes analysed in the report, although it adjudicated two cases which relate to this general context.


Proceedings in The Hague v. in Kosovo

Will the KSC also be allowed to hold proceedings outside The Hague?

This question was addressed in the Exchange of Letters and later reflected in the Law on Specialist Chambers and Specialist Prosecutor’s Office, which provides that the seat of the KSC may be equally in Kosovo and in The Hague. The decision to hold proceedings in the territory where the alleged crimes were committed, however, requires complex consideration of the situation in the country, position of witnesses and overall impact on the proceedings. For these reasons, it will depend on every panel that is sitting at different stages of the proceedings, be it Basic Court, Court of Appeals, Supreme Court and Constitutional Court.

Proceedings in situ may not only encourage, but also harm peaceful reconciliation in post-conflict societies. During my term as the ICC Judge, I dealt with two cases related to the situation in Kenya. Together with my colleagues, I was very much in favour of organizing public hearing in the country to combat the stereotype of a foreign court sitting in an ivory tower, remotely from the territory where the actual crimes were committed.  Surprisingly, the plenary of judges was approached by a group of NGOs who expressed their disagreement with this step, fearing that the hearing in situ would contribute to further disturbances in Kenya. This is a clear example that such decisions must be taken strictly on a case- by-case basis after careful consideration.

Is there any office of the KSC located in Kosovo, which could, for instance, provide assistance with witness testimonies?

This question falls within the competence of the Registrar who is currently considering such a step. On any account, witness testimonies may be conducted via video-link from other countries, depending on the residence of the particular witnesses.

 

Is the tribunal ready for its first case?

The new building planned as a seat of the court is almost finished. Is the KSC already fully operational?

After I took office in January 2017, we immediately set a number of priorities related to the operation of the KSC. First, we started drafting the Rules of Procedure and Evidence, which had to be adopted by the plenary of judges on the Roster of International Judges. After one month of intensive work, our small team finalized the first draft that was distributed for comments and proposals to judges, appointed by the Head of the EU Common Security and Defence Policy Mission after a thorough selection and recruitment process by an Independent Selection Panel.

Subsequently, our team made substantial amendments to the original version to accommodate these comments and proposals while trying to keep close to the language of the legal system of Kosovo. Furthermore, we were mindful of the need to integrate the best approaches not only from the domestic system, but also from other international institutions, such as the ICC, ICTY, Special Tribunal for Lebanon (STL) or the Extraordinary Chambers in the Courts of Cambodia (ECCC), in order to not repeat some of the mistakes from the past. The amended draft of the Rules was eventually adopted by the judges on the Roster in only three days, which, to the credit of the judges, was something unprecedented up until now.

The process then entered into the second stage when the Rules were subject to examination by the Specialist Chamber of the Constitutional Court. The judges conducted a detailed review of the Rules and eventually accepted 199 out of 208 provisions. The remaining provisions, concerning mainly special investigative measures, were found not fully compliant with Chapter II of the Constitution of Kosovo and required further revision. The final version of the Rules of Procedure and Evidence was formally confirmed by the Specialist Chamber of the Constitutional Court on 28 June 2017 and entered into force 5 July 2017. Since then, the KSC may accept indictments, special investigative measures or any other filing by the Specialist Prosecutor’s Office.

Besides the Rules of Procedure and Evidence, I have been working quite closely with the Registry on several internal legal documents, such as the Directive on Counsel, the Code of Professional Conduct for Counsel and detention regulations among others. Therefore, while we are waiting for the first indictments by the Prosecutor, there is a lot of work going on in the meantime.

As you mentioned at the beginning, Kosovo established the KSC and although having its seat in The Hague, it is legally part of the national judiciary. There have been some attempts recently in Kosovo to abolish the KSC. Is it possible to contest the very existence of the KSC under the current legal regime?

From a legal perspective, there is a strict constitutional procedure that has to be followed both for the establishment as well as the abrogation of the KSC. Personally, I do not believe that Kosovo authorities would do anything to abuse the rule of law, which constitutes one of its most respected pillars.

 

Future role of the hybrid tribunals and the International Criminal Court

Based on your experiences, both from the ICC and the KSC, will hybrid tribunals have a role to play in shaping the future of international criminal justice or do you think that the ICC will undertake this task?

 There are many arguments in favour of combining the existence of a permanent court and ad hoc hybrid tribunals. Understandably, the creation of the ICC was a revolutionary step in the development of international criminal justice, clearly establishing what type of human behaviour is unacceptable in modern society. At the same time, there are several limitations related to its operation.

First of all, the ICC became operational only after the 60th ratification of the Rome Statute on 1 July 2002 and its jurisdiction is strictly confined to war crimes, crimes against humanity, genocide and crimes of aggression. In other words, it is up to ad hoc hybrid tribunals to investigate and prosecute specific crimes, some of which happened prior to 1 July 2002. For example, the STL deals with the crime of terrorism and the ECCC address crimes dating back to the period of 1975 to 1979.

Furthermore, ad hoc hybrid tribunals may also play an important role in the process of building national judicial systems. This was, for instance, one of the reasons for the recent establishment of the Special Criminal Court in the Central African Republic, which should enable domestic judges to share their experiences with their international colleagues sitting on the same panel. 

Second, the capacity of the ICC is limited in the light of its resources. The Office of the Prosecutor has to manage substantial workload, dealing with all cases and situations on ICC’s agenda. Moreover, the Court is composed of only 18 judges while the jurisdiction of the ICC extends to territories or nationals of 123 countries in total. In this regard, ad hoc hybrid tribunals will, in my opinion, remain a vital part of the system of international criminal justice.

Since its creation, the ICC has been subject to criticism, which has recently prompted a number of countries to announce their intention to withdraw from the Rome Statute. Can the ICC overcome this critical period?

From my point of view, these critical comments about the work of the ICC and possible withdrawals of several countries actually demonstrate that the ICC is a firmly established institution in the international arena, which necessarily affects some interests and policies in individual countries that are not in line with international criminal justice. In other words, for me, it is proof that the ICC is doing the right job.

Note

The interview was conducted by Jan Lhotský. It is up-to-date as of October 2018.

Photograph

President of the KSC Ekaterina Trendafilova, source: KSC