A new international court, funded by the European Union, is expected to begin hearings in the Netherlands as early as next year exclusively to try crimes allegedly committed by Kosovo's ethnic Albanian rebels during their war with Serbia in 1998 and 1999.
The court is expected to cost in the region of €170 million to set up, but its running costs and the length of time it will need to remain in existence will be impossible to calculate until it begins its work and issues its initial indictments, all in a difficult domestic political climate.
The Kosovo Liberation Army (KLA) rebels had the backing of NATO during the war in which some 10,000 people were killed and 300,000 displaced. It was brought to an end by a campaign of allied air strikes, the first ever launched without the approval of the UN Security Council.
The rebels emerged from the conflict as national heroes. Their former political chief, Hashim Thaci, was elected first prime minister of a newly independent Kosovo in 2008, and described at one point by US Vice-President, Joe Biden, as "the George Washington of Kosovo".
But as the sickening extent of the bloodshed committed by all sides in the Yugoslav wars began to emerge, the KLA too was accused of atrocities – specifically of trucking prisoners across the border to secret torture camps in Albania, and most notoriously of trafficking in the organs of dead Serbs.
One regular visitor, Louise Arbour, then chief prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY), set up in The Hague in 1999, famously described Kosovo in the aftermath of the war as "one vast crime scene".
Chilling terms
In similarly chilling terms, forensic anthropologist, Jose Pablo Baraybar, head of the UN's Office of Missing Persons and Forensics, and a veteran of Srebrenica, said the discovery of so many mass graves made it "one of the most exhumed places on earth".
Even so – and despite huge advances in DNA technology – almost 2,000 people remain missing today.
The problem, as ever, is evidence. Many Kosovars, maintain their accusers, have embraced a “taboo of silence”. Supporters of the former KLA say that’s absurd: a war supported by the international community 15 years ago is now needlessly “being put on trial”.
One way or another, investigators say prosecutions to date have been hindered by intimidation of potential witnesses and their families.
So the fact that the West is now planning a new tribunal focused on Kosovo alone is widely regarded not as a victory for justice, but rather as a belated admission that it has so far signally failed to hold its former allies to account.
The EU-backed court will have its symbolic seat in Kosovo. But in fact all its key work, including hearing witness testimony, will take place in The Hague – where a complex but low-key security presence already protects five separate courts and their staff, the International Court of Justice, the International Criminal Court, the ICTY, the Special Court for Sierra Leone, and the Special Tribunal for Lebanon.
In terms of the mechanics of setting up such a large legal organisation, that “distance” from Kosovo is regarded as crucial to its success – yet is must be regarded as having the same legitimacy as a domestic court.
“We asked for a court comprised only of international judges and an appeals panel comprised only of internationals,” one EU official involved in the preparations told the Associated Press news agency. “This must be done and it must be done abroad. That is the only way to maintain credibility.”
Lawyers with considerable experience of The Hague's tribunals agree. "Where intimidation is a serious issue, having local judges is just too hard for all concerned, including the judges' families still living in the countries in question," one told The Irish Times.
US Ambassador to Kosovo, Tracey Ann Jacobson, summed up the diplomatic balancing act involved in the negotiations. "The proposal is for the creation of a Kosovo court implementing Kosovo law, staffed with international judges, with both an internal seat in Kosovo and an external seat."
The basis of any indictments brought before the new court will be a two-year-long investigation on behalf of the EU, led by American prosecutor, John Clint Williamson, whose team is due to complete its work in mid-June.
The new court will draft its own internal procedures, using Kosovo law, the penal code of the now-defunct Yugoslavia where appropriate, as well as UN legal documents promulgated while Kosovo was under United Nations control.
The head of the EU delegation in Pristina, Samuel Zbogar, said he understood that many in Kosovo feared the damage the new court's revelations might do to the country's image. "I would argue the contrary: that clarifying these accusations will remove a dark cloud . . . and show a country with the courage to trust in the rule of law and justice."
