The Kosovo Specialist Chambers: The last resort for justice in Kosovo?, by Maria Stefania Cataleta and Chiara Loiero, with avant-propos by Ornella Ferrajolo, preface by Robert Kolb, and postface by Fabián Raimondo and Renée de Geus, LAP Lambert Academic Publishing, 2021, approx. 180 pp.
“A universal value is stymied by particularistic thinking. It is a matter of experience that in all societies torn by violence – but indeed even in societies at large – persons are unable to think in a reciprocal and equal way under the polar star of the Kantian imperative. On the contrary, they view persons having committed even most heinous crimes under the lens of political considerations of a particularistic nature. Thus, a person is a national hero or a war criminal according to the side where a person stands. The same acts can for the same person be heroic or criminal according to whether they are done by friends or by foe. During the Bosnian war, the communities in the former Yugoslavia reasoned more than largely on such fault lines.… There seems to be an inability of a greater number of persons to attach to the acts and only to the acts, and to condemn them from whichever side they come when they are criminal.”
Robert Kolb, Preface
In an exquisitely cogent preface, Robert Kolb, Professor of Public International Law at the Law Faculty of the University of Geneva, distills the particularistic nature of ad hoc or hybrid international(ized) criminal tribunals and courts, which, in part, due to political considerations, are incapable of delivering unqualified/objective local acceptance. This is not necessarily because of the quality of justice – though there is much that can be said about the unevenness in charging and the more-than-the-occasional unimpressive qualifications of some judges – but because, to use an aphorism, acceptance or rejection of the judicial process and results is dependent on whose ox is being gored.
In essence, the authors of The Kosovo Specialist Chambers The last resort for justice in Kosovo? set out to address this conundrum (hence the question mark to the title) by delving into the process behind the establishment of the Kosovo Specialist Chambers and Specialist Prosecutor’s Office (KSC) and analyzing the procedure adopted. Considering past experiences of other international(ized) criminal tribunals and courts and the KSC’s adherence to the Kosovo Constitution and criminal procedure, query whether the process and procedure adopted by the architects and patrons (funders, and in a sense, instigators) of the KSC will assuage the fears (real or fancied) harbored by the accused and Kosovo Albanians, who, as Professor Kolb aptly notes (as a general phenomenon), are unlikely to expect and accept that substantive and procedural justice can, let alone will, be delivered by the KSC.
The KSC is a national court applying international law with a sui generis procedure drafted by the international judges (neither Kosovo-Albanians, nor Kosovo-Serbs), approved by the Constitutional Court of Kosovo, financed by the international community (EU and other donors), and assisted (run) by internationals. It’s the new hybrid international(ized) criminal court on the block. Hybrid, because like its predecessors, it mixes and mashes procedural modalities from common law (adversarial party-driven) and civil law (inquisitorial judge controlled) systems. Internationalized, because it is part and parcel of the Kosovo court system, even though the judges and prosecutors are exclusively international.
The KSC remains largely untested. The first trial (Specialist Prosecutor v. Salih Mustafa) which started on 15 September 2021, is expected to be relatively short, serving as a mere warm-up. The real show, where most of the pesky legal issues are prone to be raised, assuredly determining the quality of jurisprudence and prospects of fair trials and justice at the KSC, is the case to follow, Specialist Prosecutor v. Thaçi et al.. The filings and decisions are already proving to be interesting.
If the Pre-Trial Chamber’s confirmation of the indictment with joint criminal enterprise (JCE) having been read into the Statute à la Cassese is upheld and is indicative of things to come, the KSC might, as virtually all international(lized) criminal tribunals and courts, be susceptible to judicial legislating from the bench. Notably, any reference to JCE, in any of its forms, is absent in the KSC Statute or Kosovo Criminal Procedure Code – see my three-part series here, here, and here. Hopefully, any excessive judicial adventurism will be tempered by the Supreme Court Panel, serving as a highest judicial authority for adjudicating requests for extraordinary legal review of final decisions of the KSC and appeals from decisions of the Court of Appeals Panel (performing the function of the Kosovo Supreme Court in the KSC), and the Specialist Chamber of the Constitutional Court, acting as the final authority on the interpretation of the Kosovo Constitution as it relates to the work of the KSC (for more on this and other issues related to the establishment of the KSC, see my seven-part series here and my article on the KSC Rules of Procedure and Evidence at the International Criminal Law Review – here).
Although a bit premature to write anything authoritative on the KSC, the timing of The Kosovo Specialist Chambers The last resort for justice in Kosovo? is exquisite. With the KSC having the possibility to further fine-tune the fair trial rights contours for future ad hoc / hybrid international(ized) criminal tribunals and courts, and with the text being the first to arrive on the scene (serious academic and practical legal articles have already been written), expectations are understandably high.
Thus, having been provided a free copy to review, I was hoping to find it sufficiently solid to unreservedly recommend it. Regrettably, I cannot. While it has potential (a second edition should be considered once the Specialist Prosecutor v.Thaçi et al., the big trial, as it is commonly referred to, is tried and appealed), I found it disappointingly wanting.
Considering what The Kosovo Specialist Chambers The last resort for justice in Kosovo? attempts to cover – no mean feat for the limited space of this text – I think it is a fine draft, a solid sketch to build from, and certainly a worthy work in progress. To be fair, the authors make no pretenses of it being either a comprehensive or definitive work or a commentary of sorts. But even as a primer or a first port-of- call to get a general picture, it lacks depth and polish.
The Kosovo Specialist Chambers The last resort for justice in Kosovo? is divided into two parts. Part I, authored by Maria Stefania Cataleta, is titled The Kosovo Specialist Chambers, between great expectations and negative auspices. In nine very short chapters, Cataleta loosely discusses the events leading up to and the process of establishing the KSC. Part II, authored by Chiara Loiero, is titled When you know better, you can do better. Some fair trial considerations on the procedural framework of the Kosovo Specialist Chambers. In 10 very short chapters, Loiero sketchily discusses some aspects of the KSC procedure with modest comparisons made to other international(ized) criminal tribunals and courts.
On their own, the two parts are fairly well-developed drafts as law review articles. At the risk of offending, even as stand-alone articles, were I on the editorial board or a peer reviewer, I would red-ink the text with comments – primarily seeking greater precision, more citations, and fewer generalizations and suppositions, which, however plausible or reasonable, should only be made having cogently and logically reasoned through the law with credible authority.
This criticism is directed primarily to Cataleta. Part I was surprisingly full of assertions (legal and factual) not backed up by any cited material. Without credible authority and contra-authority, however informed a factual assertion or arrived opinion may be, the reader is asked to indulge in articles of faith. Granted, the topics she selected to discuss – Two ways to face mass atrocities, The historical landscape and the KLA role in the Kosovo War, The path towards a new court, The European and international pressures, The mixed nature of the KSC, The rationale for a mixed tribunal, A new model of mixed tribunal, The transitional justice process in Kosovo, and The necessity of public support – are not easily distilled in a few pages, but reducing complex events and issues to a few words and generalities risks unintended oversimplification and casual distortion.
Any one of her nine chapters, some as short as three to four pages, could easily be 6000 to 8000-word chapters. Sadly, Cataleta tries to cover too much disparate ground as if she is cramming information and opinions for a written exam to demonstrate her facility with the subject matters. With more space, more attention to detail and nuance, and measured referencing to authority expected of academics, Part I of the book could have been developed into a significant contribution to our understanding of the complexities that led to the establishment of the KSC, and, in no small measure, why some decisions made along the way may have positively or negatively impacted on the KSC being accepted in Kosovo as a legitimate court, prosecuting legitimate crimes and cases, and producing legitimate results.
Part II is more developed, though, here too, Loiero only scratches the surface. Her attempt to cover much of the procedure – Essential features of the procedural system, Pre-Trial Phase: Investigations, Arrest and Detention, Indictment, Disclosure of Evidence by the Prosecutor, Dismissal of Charges, Rules on Evidence, Trial judgment, Status of the acquitted person, and The Ombudsperson – is admirable but unsatisfying. To her credit, Loiero is much more attentive in providing legal authority when discussing statutory provisions or rules. However, while copiously citing relevant case law, she too fails to thoroughly drill down in much of her analysis. What modest KSC procedure she covers is done so rather superficially.
I suspect that in trying to keep Part II relatively the same size as Part I, certain editorial decisions needed to be made on what would be covered (and to what extent) and what would not. Were Part II a law review article, I might be satisfied with what was covered, but as one part of a two-part text on a unique and controversial new hybrid international(ized) court, an opportunity was missed to cogently cover the KSC procedure in greater detail, including the comparative part, which, in my opinion, gives exceptional strength to this part of the text. Every chapter in Part II, as I’ve noted for Part I, could have easily been 6000-8000 words. And I would have recommended an analysis to the entire procedure – not just a selection of it. This would have also provided Loiero with the opportunity to more fully discuss the objections to and the amendments of the KSC provisions and rules resulting from the Constitutional Court of Kosovo’s findings.
In sum, The Kosovo Specialist Chambers The last resort for justice in Kosovo? is a quick and worthy read despite its shortcomings. The avant-propos, preface, and postface are insightful, adding to the value of the text. However, for its size, it is outrageously priced – no fault of the authors, of course. Few if any professional texts this size are worth € 46,90.
Michael G. Karnavas, International Criminal Defence Lawyer