By: Henri Decoeur , Ph.D. Student, Faculty of Law, University of Cambridge
Posted on 05 April 2014.
I. Legal basis of the creation of the tribunal
As no information was released concerning the legal framework of the creation the tribunal, it is only allowed to speculate:
The tribunal could be established on the same legal basis as the European Union Rule of Law Mission in Kosovo (EULEX), which was tasked, inter alia, with assisting Kosovo’s judicial authorities and law enforcement agencies in the investigation and prosecution of war crimes and organised crime cases. EULEX was established in 2008 pursuant to a joint action of the EU Council (its mandate is due to expire in June 2014). Since the entry into force of the Lisbon treaty and the broadening of the competences of the EU under the common foreign and security policy, the Council amended and extended the joint action under Articles 28, 42 and 43 of the Treaty on European Union. The Council is indeed entitled to take binding decisions ‘[w]here the international situation requires operational action by the Union’ (Article 28(1)). In particular, the Council ‘may use [civilian and military assets] on missions outside the Union for peace-keeping, conflict prevention and strengthening international security’ (Article 42(1) and Article 43).
The tribunal will also be set up within the broader framework of UN Security Council resolution 1244 (1999), which remains in force. The Security Council authorised ‘relevant international organizations to establish the international security presence in Kosovo’ with the responsibility to ‘maintain[…] civil law and order’.
Kosovo’s declaration of independence of 17 February 2008 ‘welcomed […] international presences established in Kosovo on the basis of UN Security Council resolution 1244 (1999)’ and undertook to ‘cooperate fully with these presences’.
However, neither the Security Council nor the authorities of Kosovo contemplated the creation of an international tribunal. Any further involvement of the EU in Kosovo would require either the support of the Security Council acting under Chapter VII of the UN Charter, or the consent of the government of Kosovo.
Press reports suggest that the EU and the government of Kosovo have yet to reach an agreement for the establishment of the tribunal. The Kosovan authorities insist on a domestic court staffed by local judges. It is clear that the tribunal cannot be established nor function without the consent and full cooperation of the government of Kosovo.
II. Jurisdiction of the tribunal
The jurisdiction of the tribunal seems to be limited to crimes committed by members of the KLA during the conflict with Serbia in 1998–1999. The creation of the tribunal follows a 2011 report of the Committee on Legal Affairs and Human Rights of the Council of Europe, calling to ‘fight uncompromisingly against impunity for the perpetrators of serious human rights violations’. Rapporteur Dick Marty had come to the following conclusions:
According to the information gathered, numerous concrete and convergent indications confirm that some Serbians and some Albanian Kosovars were held prisoner in secret places of detention under KLA control in northern Albania and were subjected to inhuman and degrading treatment, before ultimately disappearing. Numerous indications seem to confirm that, during the period immediately after the end of the armed conflict, before international forces had been able to take control of the region and re-establish law and order, organs were removed from some prisoners at a clinic on Albanian territory, near Fushë-Krujë, to be taken abroad for transplantation. Although some concrete evidence of such trafficking already existed at the beginning of the decade, the international authorities in charge of the region did not consider it necessary to conduct a detailed examination of these circumstances, or did so incompletely and superficially.
A Special Investigative Task Force was established by EULEX in May 2011 to investigate these allegations.
The removal of organs from prisoners of war obviously constitutes a grave breach of the Geneva Convention relative to the Treatment of Prisoners of War and the Additional Protocol relating to the Protection of Victims of International Armed Conflicts (it can be assumed that the conflict was international due to the involvement of Albania and NATO). Trafficking in organs further constitutes a form of human trafficking, as defined under Article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organised Crime, and an offence under Article 265 of the current Criminal Code of Kosovo. Naturally, the tribunal will have to apply the law in force at the time where the crimes were committed.
III. Political Challenges
In view of the tribunal’s jurisdiction ratione personae, the tribunal’s ability to fulfil its mandate might be compromised. Several former KLA members now occupy prominent public functions in Kosovo. Hashim Thaçi, former leader of the KLA and current Prime Minister of Kosovo, was named in Marty’s report as an influential member of an organised criminal group involved in a range of criminal activities during and after the war. Aleaked intelligence report from the German secret services also documented Thaçi’s links to organised crime. Prime Minister Thaçi has categorically rejected these accusations.
Against this backdrop, the tribunal is likely to face serious challenges. The experience of the Extraordinary Chambers in the Courts of Cambodia has shown that political interference from national authorities can hinder proceedings significantly. Many grey areas remain to be clarified, including the scope of the charges and the composition of the tribunal. The EU Special Investigative Task Force is expected to conclude its investigation in the months to come.
Original link – Cambridge Journal of International and Comparative Law
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