Could the new US administration abolish the Special Court in The Hague?

The overt hostility toward the Special Court in The Hague expressed by Richard Grenell, a close associate of US President-elect Donald Trump, has sparked speculation in Pristina that Trump might abolish the court during his second term. However, legal experts, interlocutors of Kosovo Online, largely dismiss this scenario, even though they acknowledge that the US could withdraw from the court's list of donors, however, they say that this would not necessarily lead to its closure.

Written by Dusica Radeka Djordjevic

If, by some chance, the court were to be abolished, the most pressing question would be what would happen to the cases currently being tried. The only apparent option would be to continue trials within Kosovo's judiciary. However, this is precisely what the court was designed to avoid, which is why it is based in The Hague and staffed with prosecutors, investigators, analysts, and other personnel from EU member states and donor countries such as Canada, Norway, Switzerland, Turkey, and the US, despite the fact that the court was established under a law adopted by the Kosovo Assembly in 2015.

Ekaterina Trendafilova, the President of Kosovo’s Specialized Chambers, addressed these speculations by stating that despite Richard Grenell's views on the court, the institution will not be abolished. She emphasized that the court would cease operations only once the cases had been resolved. She also highlighted that EU states and other donors had never interfered in the court's work.

Trendafilova reminded that the US had participated in establishing the court and said she does not see any risk of its abolition with Trump’s return to office.

On the other hand, lawyer Tome Gashi has expressed his belief that US President-elect Donald Trump has the power to dismantle Kosovo’s Specialized Chambers in The Hague.

Among the cases being tried at the Special Court, the one drawing the most public attention is the Hashim Thaci et al. trial, which involves other former high-ranking KLA officials, including Kadri Veseli, Rexhep Selimi, and Jakup Krasniqi, and is currently in the phase of presenting evidence by the prosecution.

According to Bekim Blakaj, the executive director of the Humanitarian Law Center in Kosovo, it is entirely impossible for anyone, including the US president, to shut down the Special Court in The Hague. He emphasizes that the court’s procedures clearly outline when it may be closed.

“There is a law on the Specialized Chambers, which stipulates the only way the court can be closed: when the Council of Europe informs Kosovo’s institutions that the court has completed its processes. This means that it is absolutely impossible for anyone to close the Specialized Chambers in any other way. The European Union and donor countries have invested a great deal, and they would certainly not allow the court to be shut down so easily,” Blakaj said for Kosovo Online.

Hypothetically, he notes that if the court were somehow abolished, it would create a major problem because judicial processes cannot be interrupted without reaching their legal conclusions.

Commenting on Richard Grenell’s statement last year that Donald Trump, once re-elected, would work to ensure Hashim Thaci’s release, Blakaj said it is impossible for the president of any country to release a person charged with war crimes before the Specialized Chambers.

“That simply cannot happen. Grenell likely made that statement to advance his own political goals, but it truly cannot be realized,” Blakaj said.

Discussing the ongoing cases before the Special Court in The Hague, Blakaj notes that the prosecution has, on several occasions, announced plans to reduce the number of witnesses it intends to call to testify, which might accelerate the trials.

”I believe the cases will not reach a first-instance verdict for at least another year or more,” Blakaj assessed.

He notes that court hearings were much more frequently closed to the public at the beginning than they are now, which, he says, indicates that the prosecution has decided to be somewhat more transparent, allowing the public to hear testimony from more witnesses, however, approximately 50% of the main proceedings are still closed to the public.

Lawyer Goran Petronijevic told Kosovo Online that while the US can do whatever it wants with projects it creates, including cutting funding to the Special Court in The Hague, what happens next would remain an open question.

"Many pieces of evidence have been presented there, and many things previously unknown have been uncovered. If such a scenario were to occur, there would need to be a transitional period to relocate the court, but I find that unlikely given the level everything has reached," Petronijevic says.

He emphasizes that all open cases must be resolved somewhere.

"If we start from the premise that this court is essentially a court of Kosovo's institutions, specifically Kosovo's judiciary, which operates under the jurisdiction of the Ministry of Justice of the self-proclaimed Kosovo, and that it adjudicates based on Kosovo's laws and constitution, then presumably, the court would relocate to operate in Kosovo and Metohija, in Pristina, or wherever they decide. That is one of the scenarios. It is unlikely that all these cases could simply be closed, as substantial factual material and a large amount of evidence concerning KLA crimes have already been presented," Petronijevic said.

Regarding the court’s outcomes, he remains pessimistic.

“I have said before, when I see the first final verdict convicting someone from the Albanian leadership or the KLA leadership for ethnically motivated crimes against non-Albanians, primarily Serbs, then we can say the court is functioning properly. Unfortunately, that has not happened yet,” Petronijevic noted.

In his view, the Hague court was not established to promote justice or prosecute war crimes and serious offenses committed during the conflict. Instead, it serves as a tool to prevent certain compromises with Belgrade, such as efforts to establish the Community of Serb Municipalities or explore alternative statuses for northern Kosovo and Metohija.

“The moment the US globalist elite realized that Thaci was willing to compromise with Belgrade and not prioritize their interests as expected, he was arrested and sent to The Hague. The court was designed with this purpose in mind. To be clear, I’m not advocating for Thaci’s release, but he is not there because of crimes, he is there because he did not follow the current administration’s directives. That’s the difference, and it represents an abuse of the court,” Petronijevic stated.

He also notes that the previous US administration under Trump supported Thaci’s faction in Kosovo.

“On the other hand, while today’s neoliberal-globalist faction, represented by the Democratic administration, tries to portray Albin Kurti as disobedient, he is their product. Kurti is nothing more than a mouthpiece for such American foreign policy,” Petronijevic stated.

As he notes, the focus in the proceedings has been placed on inter-Albanian killings over political dominance.

"The fact that they killed each other to gain power is a matter of their justice. The justice that should concern us involves ethnically motivated serious crimes, killings, expulsions, and everything that happened to non-Albanians, primarily Serbs, who were the majority living there," Petronijevic points out.

Lawyer Zoran Zivanovic does not believe that the Specialized Chambers in The Hague will be shut down after Donald Trump takes office again. He says that even if the US were to withdraw its funding, it would not significantly disrupt the court's operations. He emphasizes for Kosovo Online that the Specialized Chambers were established by the European Union, which is the primary financier of the court's work.

“The appointed judges and prosecutors are mostly from EU countries. It is also important to note that, in addition to the US, some non-EU countries, such as Canada, Switzerland, Turkey, and Norway, contribute to funding this court,” Zivanovic says.

If the court were to be abolished, Zivanovic says that the cases currently before it would fall under the jurisdiction of Kosovo’s legal system.

“If such a situation arose, the cases would be handed over to Kosovo’s prosecution, judges, basic and appellate courts, the Supreme Court of Kosovo, and investigations would be conducted by the Kosovo Police, as is already the case,” Zivanovic notes.

When asked whether this might raise doubts about the impartiality of trials, the lawyer says such doubts would be extremely high. He adds that precisely because of such concerns, the Specialized Chambers were established and located in The Hague.

“This was done due to established facts showing that Kosovo’s judiciary, when handling war crimes cases, was extraordinarily lenient toward perpetrators from Kosovo. For this reason, two very significant decisions were made: first, to relocate the court's seat from Kosovo to The Hague; and second, that judges, prosecutors, and all court personnel be exclusively foreigners, to eliminate any potential for undue influence on judicial functions if the court were to operate within Kosovo,” Zivanovic explains.

Considering that Richard Grenell, a close associate of Donald Trump, stated last year that if Trump were to become president again, he would work toward ensuring that Hashim Thaci, who is currently on trial before this court, is freed, Zivanovic says this could be about political interests.

“In his role, Hashim Thaci was much more cooperative with the US and the international community compared to Albin Kurti. There might be an American interest, and possibly that of others, in bringing Thaci and his political faction back to power in Kosovo. This faction might be more accommodating and acceptable to the West, facilitating Western policies toward Kosovo and the Balkans in general,” Zivanovic concludes.

The Specialist Prosecutor’s Office was established on September 1, 2016, based on the Law on Specialist Chambers and the Specialist Prosecutor’s Office, adopted by the Kosovo Assembly on August 3, 2015. Both the chambers and the prosecutor’s office operate independently from Kosovo’s institutions.

The mandate of the Specialist Chambers and the Specialist Prosecutor’s Office covers proceedings for crimes against humanity, war crimes, and other criminal offenses initiated or committed in Kosovo between January 1, 1998, and December 31, 2000, and linked to the acts outlined in the Parliamentary Assembly of the Council of Europe’s report "Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo" from January 2011.

The current Specialist Prosecutor is Kimberley West, a former US federal prosecutor.