In this issue
Suffer little children
Targeted assassinations: Individual rights
Business and human rights update: the liability of holding companies for pollution by overseas subsidiaries
Ukraine initiates proceedings against Russia in the ICJ
Two DSI members appointed as Judges to the Kosovo Specialist Chambers
Investor-State Dispute Settlement under Investment Treaties and Free Trade Agreements: ad hoc Arbitration or Investment Court System?
Litigating to Liberate LGBT People
The Unique Jurisdiction of the African Court on Human and Peoples' Rights: Protection of Human Rights Beyond the African Charter
RIP, Sir Nigel Rodley
Two DSI members appointed as Judges to the Kosovo Specialist Chambers
International Criminal Law

By Steven Powles

As the last trials at the UN’s Yugoslav Tribunal (‘ICTY’) come to an end, with the (albeit decreasing)[1] threat of a mass exodus of African states from the International Criminal Court (‘ICC’), and as the Special Tribunal for Lebanon’s (‘STL’) absentee defendants slowly pass away, focus in The Hague is now turning to the soon to be up and running Kosovo Specialist Chambers (‘KSC’). 

In August 2015 the Assembly of the Republic of Kosovo established the Special Chambers and Specialist Prosecutor’s Office to prosecute crimes allegedly committed in Kosovo between 1 January 1998 and 31 December 2000. The Specialist Chambers will mirror the courts and legal system of Kosovo in The Hague with the KSC essentially a parallel criminal justice system, populated by international judges and staff. The KSC is tasked with presiding over alleged crimes identified by an inquiry led by Dick Marty on behalf of the Parliamentary Assembly of the Council of Europe. The inquiry’s findings are set out in the Marty Report, published in 2010, and allege that numerous crimes were committed by former members of the Kosovo Liberation Army (‘KLA’) against Serbs, Roma and Kosovo Albanians believed to have been ‘collaborators’ with the Serbian regime or opponents of the KLA leadership during the conflict in Kosovo. The KSC will investigate and prosecute those alleged to have been responsible.

Judge Trendafilova of Bulgaria, formerly of the ICC, was appointed as President of the KSC in December 2016, and the other nineteen judges were announced on 7 February 2017. Judge Keith Raynor of the UK will serve as the KSC’s Vice-President. Disappointingly only five of the KSC’s twenty judges are women, a clear step back in ensuring more balanced gender representation at international criminal courts and tribunals. Doughty Street International, however, is proud that two of its members – Judge Ann Power-Forde (formerly the Irish Judge at the European Court of Human Rights) and Professor Guénaël Mettraux of Switzerland - have been appointed as judges to the KSC.

In January 2017 Doughty Street International and the British Albanian Lawyers Association co-hosted a roundtable discussion on the adoption of the Rules of Procedure and Evidence for the KSC. The roundtable brought together experts and specialists on international courts and tribunals from a wide range of international organizations and NGO’s including the IBA, Human Rights Watch, Redress, Amnesty International, Fair Trials International and the Open Society. 

The aim of the discussion was to reflect upon some of the main challenges the KSC may face as it embarks on its work. Like the ICC and STL, the KSC provides for the participation and representation of victims during proceedings. Plainly, to enable proper and effective participation by victims in proceedings there will need to be adequate funding measures in place.

Article 3 of the Law establishing the KSC provides that the Specialist Chambers shall adjudicate and function in accordance with the Constitution of the Republic of Kosovo, the European Convention on Human Rights and the International Covenant on Civil and Political Rights. It is hoped that this will mean that proceedings at the KSC will afford the very highest of fair trial rights. A matter of particular concern, however, will be to ensure that both incriminating and exculpatory material held by other international organizations, such as the ICTY and EULEX, is made available to both the accused and the KSC Prosecutor. The KSC Prosecutor must be obliged to obtain and disclose all relevant material already uncovered as part of previous investigations by other international bodies.

It has been reported that indictments have already been prepared for a number of senior KLA officials. If these reports are accurate it will mean that indictments will likely be issued later this year after the Rules of Procedure and Evidence have been adopted by KSC judges sitting in Plenary pursuant to Article 19 of the KSC law. Trials will commence shortly thereafter at a purpose built court to be constructed for the KSC at the old Europol premises in The Hague.

There will be many interesting opportunities for both counsel and solicitors to contribute to the important work of the KSC. Those interested in participating should register their interest with the Victims Participation Office and Defence Office once established at the KSC.

[1] On 22 February 2017 the High Court of South Africa ordered President Zuma to revoke South Africa's notice of withdrawal from the ICC. DSI's Professor John Dugard and Guénaël Mettraux submitted an amicus brief and Max du Plessis acted for the South African Litigation Centre.

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