IBNA Analysis: The question that naturally arises after the creation of such special Court is that if it will involve the consensus of political and legal actors of the country or if this doesn’t happen, what will be the next step which would sanction its foundation from an international mechanism
By Vigan Qorrolli*
A legal overture on the features, the status and international penal law ahead of the foundation of the Special Court of Kosovo which will handle the investigations carried out by the Special Investigative Task Force (SITF) of EULEX.
If the creation of the Special Court of Kosovo, which will follow the work and investigations of the EULEX Special Investigative Task Force (official prosecution institution), will be contradictory or complimentary toward domestic justice institutions, will depend on whether this Court falls into the category of international tribunals and if there’s incompliance with the history of their creation in different countries.
In reality, the following adjectives, “international penal tribunal”, “special court”, “special chamber for war crimes” are terminology inventions which are not very different from the idea of handling supposed war crimes, but they strengthen the international and national jurisdiction on the variety of the charges-which emanate from the Geneva Convention and its extra protocols in the treatment of what are generally called laws and war customs. The Geneva Conventions have later served as the main basis of codification of a unique science-namely of the humanitarian international law.
The history of the international penal science has recognized a total of 6 tribunals and/or special courts-which have handled war crimes taken place in different territories. The most well known one remains the International Penal Tribunal for former Yugoslavia based in Hague. Besides this there has also been the International Penal Tribunal on Rwanda, Special Court on Sierra Leone, Special Chambers of Courts in Cambodia and the Special Tribunal on Lebanon.
It must be said that these justice institutions have an international jurisdiction and operate outside the sovereignty of the country’s state, given that there’s national legislation which have established special chambers on war crimes in the framework of their Courts (example: Serbia and Bosnia).
Plan A (Parliament) as a model of exemption of Plan B (Security Council)
In theory, hybrid courts (mixed with domestic and foreign judges) uphold the flag of priority mainly in issues of efficiency due to their knowledge with the culture and operation location, while foreigners have a priority over domestic judges mainly on professional support given to the domestic personnel which is paid much less. Nevertheless, this will not be the case with the Special Court of Kosovo, given that it will be entirely comprised of international judges appointed by the head of EULEX in Kosovo and domestic judges will not be involved in it.
The question that naturally arises after the creation of such special Court is that if it will involve the consensus of political and legal actors of the country or if this doesn’t happen, what will be the next step which would sanction its foundation from an international mechanism. Here, the legal path is clearly known, although the Security Council would decide the foundation of this Special Court-like it has previously done- through a special Resolution under the spirit of article 41 (chapter VII) of the UNO Charter. Article 41 in fact entitles Security Council to impose authority and use a number of measures to implement its decisions. The tribunals and/or the courts mentioned above have been created under the ‘orders’ of this article. This would be “plan B”, in case the parliament of Kosovo fails in adopting the necessary legislation which would create the Special Court.
Two reasons for a legal experiment
Like lawyers of human rights develop the concept of transitional justice in every state and post-conflicting society, the creation of such court too can be considered “an extraordinary experiment of transitional justice”.
Kosovo is once again given such experimental characteristic, as it has happened in the previous processes of the NATO humanitarian intervention in 1999, the proclamation of Independence in 2008, the Advisory Opinion of the International Court of Justice in 2010 and everything else which relates to Kosovo and which today is known to be “sui generis” in the theory of international law.
Two are the reasons for this experimental character-based on which the Special Court will operate inside and outside the national jurisdiction of Kosovo.
The first reason of this experimental character is for the Special Court to operate in several jurisdictions, besides the one in Kosovo, as the circumstances have been mentioned in the report of the Parliamentary Assembly of the Council of Europe (Dick Marty’s December 2010 report), and these jurisdiciotns will possibly include Albania and then Macedonia and Serbia.
The second reason is the superior power which will create this Court with the eventual appeal of its rulings, which will not only end up with one Appeal Instance, but with a constitutional instance of the protection of the lawfulness of its decisions, thus excluding every domestic justice institution: Court of Appeal and then the Supreme Court and in an entirely irrational way-the Constitutional Court itself, as the last guarantor of human rights and liberties in the country.
What’s contained in the penal and international “lex loci delicti” theory, or the prerogative of the country where the criminal offense is committed, remains clearly understandable from the supremacy of the international law as opposed to domestic law, as what’s expected to happen with the Special Court and its instances (including the jurisdiction) is an unprecedented experiment in the history of the creation of such courts.
Given that the experiment is a very active and fictional science in the international relations, I’m in debt to the physician Albert Einstein for his theory, who while explaining the quantity of his experiments, said that “there’s scale and level of experiment that can prove that I’m right for as long as one experiment can prove every mistake of mine.”
*The author is a lecturer in the University of Pristina, Kosovo