IBNA Op-Ed/The Special Tribunal threatens the ‘ne bis in idem’ and ‘res judicata’ principles

IBNA Op-Ed/The Special Tribunal threatens the ‘ne bis in idem’ and ‘res judicata’ principles

By Prof. Dr. Berat Aqifi

Kosovo is currently facing great international pressure which relates to the creation of the Special Tribunal on crimes allegedly committed by former KLA leaders. These allegations are based on the report of the senior official of the European Council, Dick Marty.

What’s absurd is the fact that the victims of the regime led by Serb dictator, Slobodan Milosevic, are being tried. Even this time, the international community is using double standards, putting in danger the sovereignty and the judicial system of Kosovo.

This act is damaging the image of the state of Kosovo, because foreign judges will rule on “crimes” that we have committed by defending ourselves in our lands and our homes, from a regime which has been condemned by all western world.

On this occasion, it’s necessary to stress that the “ne bis in idem” is being violated, which is also known as double prosecution, because the KLA leadership has been tried once after the war in Kosovo by the International Court of Justice.

This process will also see the violation of another principle known in the systems of national and international law as “res judicata”, which doesn’t allow a new ruling on a case which has been tried once and for which a ruling has been issued.

The tribunal will be established because there is no other alternative. If Parliament of Kosovo fails in establishing this institution, then it will be established by the UNO.

The second version is damaging because it puts in danger Kosovo’s subjectivity as a state and brings back UNMIK mission to Kosovo.

This also strengthens Resolution 1244, which has a neutral stance toward Kosovo and enables Serbia to decide on political processes in Kosovo.

But who brought this situation? Of course, the governments of Kosovo, since the end of the war and until today, have failed to build an independent justice system.

In the first case, if the Tribunal is established from our institutions, the world will laugh at us. They will ask if there exists a state without the main pillar of each democracy, the judicial system.

Perhaps there may be in dictatorships and classic monarchies, where all powers are concentrated in the hands of several individuals and casts around them, but not in normal states.

It’s not that we’re against these inquiries and against trying these crimes, but this process should have taken place within the Kosovo justice system. Experts from foreign courts may come for assistance, as they have done after the war and after the independence of the country from different countries of the world, but I fear that with the current political class, there will be no results.

Under these circumstances, this doesn’t mean that we must surrender the state. It’s better to sacrifice the current political class, which is deeply involved in crime, because Kosovo has the capacity and strength to build its state like it should do.

Meanwhile, UNO may go ahead and establish the Tribunal. Along with other actors, let it play this social drama in the Hague theater or anywhere else, because we are not powerful in front of other major decision making powers, which throughout history, they have caused many injustices, starting with the Berlin Conference, Versailles and other historical moments.

Even this time, the international community may pretend it’s blind and use double standards for Albanians, forgetting the murder of 15 thousand Albanians, the raping of 20 thousand women, the disappearance of two thousand people, the deportation of over 800 thousand people and the material damages that amount to billions of dollars.

*The author is a law professor at the University of Pristina and UBT University College. The opinion has been exclusively written for IBNA

** The opinion of the author doesn’t necessarily represent IBNA’s editorial line