Kosovo Specialist Chambers As A New Hybrid Court In The International Judicary

The establishment of Kosovo Specialist Chambers is intricately linked to the 1998–2000 armed conflict in the territory of Kosovo.

The armed conflict over Kosovo's independence between Serbs and Kosovo Albanians in the last years of the 20th century. It is estimated that the greatest intensity and development of the conflict occurred between 1998 and 2000 as a result of the start of activities by the armed guerrilla organisation, the Kosovo Liberation Army (Ushtria Çlirimtare e Kosovës).

The responsibilities of the UN mission were partly taken over by the EU by establishing the European Union Rule of Law Mission in Kosovo mission

The Kosovo Force was a NATO international peacekeeping force, a mission created to restore security in the territory of Kosovo.

Of particular relevance in the context of the subsequent establishment of the Chambers appears to be the report of the Parliamentary Assembly of the Council of Europe on ‘Inhuman treatment and trafficking in human organs in Kosovo’

Inhuman treatment of people and illicit trafficking in human organs in Kosovo (Council of Europe's report), (Doc. 12462 07 January 2011) <https://www.scp-ks.org/sites/default/files/public/coe.pdf> accessed 11 April 2022.

In September 2011, following up on the report, the Council of Europe issued a resolution

Council of Europe, Parliamentary Assembly Resolution 1782, Res. 1782 [2011].

The judicature and jurisprudence of public international law have not yet developed a unified hybrid court that considers all the specificities of this peculiar subtype of international tribunals. Moreover, the characteristics of these courts are interpreted from the connecting elements of current hybrid courts.

Sarah MH Nouwen, ‘Hybrid Courts: The Hybrid Category of a New Type of International Crimes Courts’ [2006] 2(2) Utrecht Law Review 192.

Following the definition indicated above, it is necessary to stress that since hybrid courts are established in the territory of states affected by armed conflicts, civil wars, or dictatorships and are created to adjudicate on various violations of ius cogens norms and national norms governing the most serious crimes and human rights violations, they are criminal courts.

ibid.

Another reason justifying the establishment of internationalised courts to try crimes in these kinds of circumstances is the fear and apprehension of national judges to act against individuals suspected of genocide, war crimes, and other atrocities because of their own safety and the lack of adequate protection against the criminals.

Antonio Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’ in Romano, A Nollkaemper, and Kleffner (eds), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford 2004) 10.

In view of the above, it is believed that justice should be sought in international law by establishing appropriate mechanisms of international law, while at the same time making efficient use of domestic law mechanisms to ensure that the process of holding perpetrators accountable for their crimes is fully legitimate and effective.

Focusing on the international mechanisms used in the creation of such bodies, it is first necessary to mention the legal basis constituting these bodies. Past practice indicates that the impetus for the creation of hybrid courts was the reactions of the international community to various major conflicts taking place in the world. As part of the activities undertaken by the international community, acts were created that introduced appropriate changes and modifications to the local justice systems by establishing bodies that combine international and national elements. Such acts include, for example, the resolutions of the UN Security Council,

Security Council resolutions have created, e.g., the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.

Another international element may or may not be the law applied by hybrid courts, both substantive and procedural. After all, some violations of ius cogens norms such as the crime of genocide, torture, and war crimes, are also considered crimes in national legal orders, and consequently, within the national judiciary, there are specific norms of criminal procedural law that may apply in cases of this gravity. In this connection, it should be stressed that it does not appear that in the new era of international justice there would be a hybrid court that would rule solely on the basis of the norms of international law. As a matter of principle, it would not be in the nature of such courts to base their judgements exclusively on international law. Consequently, the internationalisation of the law applied to the procedures and actions would depend only on the entities forming the court in question. Thus, the scope of international law applied by hybrid courts may be limited to a small number of international law rules

According to of the Law on the Establishment of the Extraordinary Chambers of the Courts of Cambodia (NS/RKM/1004/006), the Extraordinary Chambers shall apply Cambodian law when taking procedural actions. In case this law does not address a specific issue: there is ambiguity on how to interpret or apply a norm of Cambodian law, or there is inconsistency of the law with international standards. Then the solution should be sought at the level of international law standards <https://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf> accessed 4 April 2022.

When examining the substantive law applied by hybrid courts, it cannot be overlooked that the subject matter jurisdiction of hybrid tribunals, like the tribunals themselves, is not uniform. Moreover, it is based on a peculiar mixture of the domestic law of the state concerned and the rules of public international law. The scope of acts to be judged by judges of internationalised tribunals is determined by laws or conventions of the states and international organisations constituting the court. Due to the universal acceptance by the international community of certain norms as norms whose violation is inadmissible (norms ius cogens), the scope of substantive jurisdiction of hybrid courts covers the most serious crimes of international and national law such as genocide, mass cleansing of selected ethnic or religious groups, or severe violations of the laws of war. Undoubtedly, the compilation of international law together with national law influences the proceedings in hybrid courts. It may happen that national law insufficiently covers the scope of crimes committed during an armed conflict, leading to some perpetrators escaping the reach of justice. The norms of international law, in particular the norms of ius cogens, incorporated into the statutes of hybrid courts compensate for the deficiencies of national law through their universality.

The personal aspect of the structures of internationalised tribunals consists of both judges and staff from the countries on whose territory the international crimes took place and international staff. The shape of the personnel working within the hybrid courts is primarily influenced by the reasons for the establishment of such bodies. As already mentioned, hybrid courts are set up in post-conflict circumstances, i.e., in situations where state structures are often completely disintegrated or where there are only a handful of judges in the territory and, in addition, they do not have the experience to try serious crimes. In most cases, therefore, it has not been possible to set up bodies composed exclusively of citizens of the country in which the judicial body is being established. It also appears that the creation of purely international judgeships has been abandoned. This is mostly due to the possibility of insufficient legitimisation of personnel with only international roots in the eyes of the local community. After all, it may happen that international staff will not be able to fully understand and adapt their actions to the specificity of the community they will have to deal with.

Romano, ‘The Judges and Prosecutors of Internationalized Criminal Courts and Tribunals’ in Romano, A Nollkaemper, and Kleffner (eds.), Internationalized Criminal Courts, (Oxford 2004), 240.

As a result of the above, and many other circumstances, the composition of hybrid courts is usually a mixed composition. Presumably, the international organisations that are one of the entities creating hybrid tribunals would insist on appointing only foreign judges, given the greater experience of such judges and the greater likelihood of respecting the norms of international law underlying the functioning of the body. However, the mixed composition of staff is not an accidental solution chosen when creating hybrid courts. Their specificity does not allow the composition of the judiciary to be devoid of both a local and an internationalised element. As Cesare Romano points out, ‘local judges and staff are essential to instil in the local community a sense of ownership of the justice sought on their behalf’

ibid.

When defining the nature of hybrid courts, the issue of their ad hoc nature cannot be overlooked. This is a feature that distinguishes them from distinct types of permanent bodies of international criminal law. The hybrid courts are not established to function permanently, as their purpose is not to replace the International Criminal Court. In the literature, the term ad hoc courts

An ad hoc court is a court set up to deal with a specific dispute.

The establishment of the Kosovo Specialist Chambers would not have been possible without the continuous support of the Republic of Kosovo by the EU in the democratisation of the state and the reconstruction of structures. Discussions and conversations between the Kosovo authorities and representatives of the EU structures have been taking place for a long time to strengthen and achieve as fully as possible the objectives set by EULEX. The establishment of a separate judicial authority was achieved through the adoption by the Kosovo Parliament of the Law on the Ratification of the International Agreement between the Republic of Kosovo and the EU on the European Union Rule of Law Mission in Kosovo.

Agreement between the EU and the United States of America on the participation of the United States of America in the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO (EULEX KOSOVO 2008), (OJ L 292, 25.10.2008, 33–38).

Kosovo Specialist Chambers, together with the Special Prosecutor's Office, have legal capacity under Kosovo law and fully exercise its rights. The legal framework for the KSC legal personality derives from the constitutional regulations and the Statute of the Chambers, which established, inter alia, the competence to enter into agreements with other states, international organisations, or other entities.

Statute, section 4(1).

When analysing the hybridity of Kosovo Specialist Chambers, it is important to look at the law applicable by this court. The sources of law under which the Chambers operate and adjudicate are the Constitution of Kosovo, customary international law, international instruments protecting human rights, including, in particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights, the Statute of KSC, and any provisions of Kosovo law

Statute, section 3(2).

Listing the Constitution of Kosovo as the most important source of law applied by the Chambers may have been inspired by the provision adopted by the Extraordinary Chambers of the Judiciary in Cambodia.

In the statute of this hybrid court, mainly Cambodian law supplemented by international law is indicated as the law applicable.

The procedural matter concerning the manner in which the Chamber conducts its proceedings has been largely covered by a separate act, the Procedural and Evidentiary Rules before the Kosovo Specialised Chambers. This act specifies the scheme of conduct of proceedings, among other things, the rights of the accused, the process of making arrests and detentions. Passed by the judges of the Chambers under Article 19(1) of the Statute, it codifies the procedural rules applied by the Specialised Chambers (both the Trial Chambers and the Office of the Prosecutor). The Rules of Procedure and Evidence before the Specialised Chambers in Kosovo is an act that supplements the Statute with important practical issues, while remaining respectful of the provisions of the Statute. It was the intention of the judges to embody, both in the Statute and in the aforementioned Act, the highest standards of international human rights developed both within the Council of Europe and the UN. In particular, it should be presumed that the injunction to observe the highest standards of international human rights in Article 19(1) of the Statute is inspired by, among others, the already famous Article 6 of the European Convention on Human Rights, which set the standard of a fair trial.

The scope of temporal and territorial jurisdiction is limited to crimes initiated and committed on the territory of Kosovo between 1 January 1998 and 31 December 2000.

Statute, section 7-8.

The personal jurisdiction of the Specialised Chambers is limited to natural persons holding Kosovar citizenship, or as stated precisely in the Statute, persons holding citizenship of the Federal Republic of Yugoslavia.

Statute, section 9.

Still remaining with the jurisdiction of the Chamber, it is worth pointing out the provision in the Statute of the Special Chambers that it is not possible to invoke immunity rationae materiae

Immunity rationae materiae is a functional immunity that relieves state officials from liability for acts performed in the exercise of their official functions.

An important aspect in the context of the subject matter jurisdiction of the Kosovo Specialist Chambers is their superiority over any other Kosovo court.

Statute, section 10(1).

The concept of shaping the jurisdiction of the Chambers in the described manner seems to use the most prominent solutions contained in the statutes of the already existing hybrid courts. Particularly noteworthy is the extension of the Chambers’ jurisdiction to crimes committed by state officials in the line of duty and the lack of entitlement of these persons to invoke immunity for their defence in proceedings before the Chambers. Bearing in mind the long-standing reflections of the doctrine of international law on the immunity of the state (including the highest state officials) in the field of international crimes, it should be pointed out that every attempt to legally regulate this problem contributes to strengthening the practice of the subjects of international law. It is not unlikely that the shaping of the scope of subject matter jurisdiction in this way will in the future become a universal model for a new generation of judicial bodies.

Turning to the organisational structure of the Kosovo Specialist Chambers, it is necessary to indicate that the Kosovo Specialist Chambers are composed of the following chambers: the Ordinary Trial Chamber, the Appeals Chamber, the Supreme Court Chamber, and the Constitutional Court Chamber.

ibid section 4(1).

Judges appointed to serve as a judge to one of the Chambers are selected from the official Roster of International Judges. This list is compiled by an independent Qualification Commission composed of three members of international origin, including two judges with experience in international criminal law.

ibid section 28(2).

A positive aspect of the structure of the Kosovo Specialist Chambers thus adopted is, primarily, the authority of the Chambers to move their seat. It is usually suggested in the literature that the majority of judicial bodies of this type have their seat on the territory of former conflicts, which favourably influences the active participation of injured parties in the process of restoring state structures and the realisation of judicial proceedings. The disadvantage of this solution may be the high probability of influence of potential perpetrators on the course of proceedings. In connection with this, the possibility of transferring the seat to another country seems reasonable, since protecting the independence of judges and the efficient course of proceedings should be a priority for every judicial body.

While the complete exclusion of local judges from the Roster of International Judges is incomprehensible, in jurisprudence, the inclusion of local judges in the structures of hybrid courts is assessed positively due to the previously mentioned sense of wielding justice that is administered to criminals. Consequently, the lack of judges of Kosovar origin may in the future affect the legitimacy of this judicial body and hinder the procedure in further legal proceedings.