Eleven years after a contentious vote to establish a hybrid court based in The Hague, and three weeks after a guilty verdict in it most important trial, Kosovo’s Assembly last week approved amendments to the law on the Kosovo Specialist Chambers (KSC) aimed at changing the court’s mandate.
The vote came after the court last month sentenced former Kosovo president Hashim Thaçi and three other former Kosovo Liberation Army (KLA) leaders, Jakup Krasniqi, Kadri Veseli and Rexhep Selimi, to respectively 25, 25, 18 and 13 years in prison, for war crimes.
The crimes involved the murder of at least 96 people and the unlawful detention and torture of more than 300 others, most of them Kosovo Albanians. The court dismissed the charges of crimes against humanity.
The verdict triggered an important wave of protests in Kosovo, where many consider the sentences unjust and view the court as a politically motivated institution established to make concessions to Serbia to bring it closer to the West.
And the move is far from over. Yesterday, October 14, Kosovo’s government approved the establishment of a working group to support the four former KLA leaders appeals. The working group would be led by first deputy Prime Minister and Foreign Minister Glauk Konjufca, and would include institutional and parliamentary representation.
Attempt to control the Specialist Chambers
The amendments specifically provide for cases deemed to fall outside the Specialist Chambers’ jurisdiction to be prosecuted in Kosovo. It also allows appeals to Kosovo’s Supreme Court, caps prison sentences at 15 years in line with the former Republic of Yugoslavia sentencing limits and the lex mitior principle favouring defendants and requires sentences to be served in Kosovo.
The changes aim to “prevent institutional overreach” and reaffirm the “constitutional primacy” of Kosovo’s regular courts, enabling the transfer of cases outside the KSC’s jurisdiction, along with evidence, protected witnesses and detainees, to domestic authorities while “safeguarding fair-trial rights and procedural continuity and legality”.
Under the new amendments, the KSC would not have jurisdiction over general war crimes, crimes against humanity and post-war political violence in Kosovo unless these constitute an immediate and integral part of specific crimes within its mandate. This means the KSC would no longer be able to prosecute war crimes, including torture, murder, unlawful detention, or political killings committed during or after the war, unless they fall within the narrow scope of the organ trafficking that initially prompted its establishment, or crimes against minorities.
The amendments to the law on the KSC were initiated by the Democratic Party (PDK), the party of Thaçi, which made its support for the ruling Vetëvendosje party conditional on a vote to elect a new president by the October 6 deadline.
The amendments secured a two-thirds majority in parliament. However, constitutional amendments require a double majority: two-thirds of all 120 MPs and a majority of MPs representing minority communities. By a single vote, the required threshold was not met.
“These moves to amend the law are hasty”
“We had very limited time to analyse the amendments, especially given that we do not yet have the final judgment”, acknowledged Prime Minister Albin Kurti in an address to the Parliament. “These moves to amend the law on the Specialist Chambers are hasty and have not been sufficiently analysed. However, I supported these amendments, convinced that Kosovo does not accept the actions of this court, which undermine Kosovo’s struggle for freedom,” Kurti added.
Established in 2015 under an international agreement and enshrined in Kosovo’s Constitution, the KSC are judicial institution mandated to prosecute crimes related to the 1998–99 conflict. Kosovo’s Constitution provides that the Specialist Chambers may have a seat both inside and outside Kosovo. However, the court has yet no office in Kosovo and receives logistical support from the EU Rule of Law Mission (EULEX).
Their most contested establishment followed pressure from Kosovo’s US and EU allies, and a Council of Europe report alleging organ trafficking. Although the EU Task Force found no evidence of organ trafficking, it identified evidence of war crimes.
In conflict with international agreements
The European Union (EU) has made clear that the legal amendments conflict with Kosovo’s obligations. “This is concerning. We call on Kosovo to adhere to its international obligations to guarantee the judicial independence of the Kosovo Specialist Chambers,” Ursula von der Leyen’s office told Justice Info.
It says that this commitment stems from a 2014 exchange of letters between Kosovo’s then-president, Atifete Jahjaga, and the EU’s foreign policy chief, Catherine Ashton, which served as the foundational international agreement for establishing the Specialist Chambers. A separate interim agreement between Kosovo and the Netherlands subsequently provided for the court’s relocation to the Netherlands.
To change the KSC’s mandate, Kosovo would need to amend or withdraw from the relevant international agreements, a move requiring the approval of two-thirds of all MPs.
Alexander Heinze, substitute professor and lecturer in law at the University of Göttingen in Germany, said to Justice Info the court’s authority was ensured principally through the delegation of certain sovereign powers for the duration of its mandate. A corollary of this arrangement, he added, was the establishment of the court’s own legal framework.
“We can compel the court to apply it”
Following the changes to the law, it remains unclear how Kosovo’s authorities will proceed.
Commenting on the move, the KSC spokesperson said it would remain “fully focused” on implementing its mandate. “The KSC will ensure fair, impartial and secure judicial proceedings, and the protection of witnesses and victims,” Michael Dole told Justice Info.
However, last week’s move was not the first attempt to alter the court’s legal framework. In December 2017, the Kosovo Assembly attempted to repeal the law on the KSC, but the initiative failed following strong reactions from the EU and the US. In August 2020, president Thaçi himself submitted a proposed constitutional amendment seeking to replace the existing termination clause, which governs the KSC’s mandate.
The proposed constitutional amendment was subsequently referred by the speaker of the Kosovo Assembly to the ‘Specialist Chamber of the Constitutional Court’ for a prior assessment, as required by the Constitution. In November 2020, just a week after Thaçi’s arrest, the Chamber ruled that the proposed constitutional amendments would diminish the rights and freedoms guaranteed by Constitution. Referring to the 2014 exchange of letters with EU, it noted that the KSC’s mandate would continue until the completion of the respective proceedings.
The issue was not discussed further in Kosovo until last week.
Perparim Gruda, who chairs of the Assembly’s Committee on legislation, said an institutional path would be found to ensure that the Specialist Chambers apply Kosovo law. “Those amendments to the law are quite different from other initiatives. There is a legitimate concern about whether the KSC will implement the legislative amendment adopted by the Assembly concerning the court,” Gruda said to Justice Info.
“As a state, we can compel the court to apply it. It is an obligation,” he added.
“An autonomous legal regime”
For Kosovo authorities and many others, the KSC’s position suggests that it considers itself an autonomous legal regime.
Kushtrim Istrefi, an associate professor and director of the master’s programme in Public International Law and Human Rights Law at Utrecht University, as well as a substitute member of the Venice Commission, argued that the Specialist Chambers had failed to provide persuasive reasoning on the application of the principle of the most lenient sentence.
Also, “it leaves unanswered the meaning of the court’s legal autonomy,” Istrefi told Justice Info. He pointed out that, seized on the Salih Mustafacase, the Kosovo Constitutional Chamber has failed to provide detailed reasoning and theoretical backing for what it means when it refers to its autonomy. “It is regrettable that the Constitutional Chamber showed less rigour and willingness to engage with controversial questions of applicable law,” he said.
Frank Harhoff, a former judge at the International Criminal Tribunal for the former Yugoslavia (ICTY), believed that changing the law “is premature to assert at a stage where certain processes have yet to unfold.” “I am not certain it makes sense now to argue that we should not overlook this history when some important decisions were taken,” he told Justice Info.
Selective empathy for victims and witnesses
Protests against the Hague court, legislative changes, also implies the public shaming of certain victims and witnesses, and calls to release testimony related to specific killings. All this have heightened fears among the families of some of those involved in the proceedings.
The family of a person named in the indictment against the four former Kosovo Liberation Army (KLA) leaders convicted in September is deeply distressed. “We are not at all satisfied or happy. It doesn’t make you feel content being regarded as a ‘traitor’,” said the brother of one victim. “We will not accept any reparation,” he added.
Law professor and transitional justice researcher Gjylbehare Murati said victims’ suffering remains on the periphery of public discourse. “Many have perceived the conviction as unjust and such situation fostered a form of selective empathy, directed at victims who align with our political, social, or ideological convictions,” she told Justice Info. “This has left little room for empathy that embraces all victims, regardless of their identity or affiliation.”
“A verdict cannot determine how society perceives victims, understands their suffering or shows solidarity with them,” Murati added.
