Closed Doors at The Hague: Is This Open Justice?

Outline Chambers Briefing & Commentary

By Toby Cadman

Over the past two decades, international criminal tribunals have made increasingly frequent resort to closed and private sessions, marking a significant shift away from the traditional presumption of open justice. What were once exceptional measures, justified by narrowly defined security concerns, have in many proceedings become routine features of trial practice. Proponents argue that closed sessions are essential to protect witnesses, safeguard sensitive information, and preserve the integrity of fragile investigations, particularly in post‑conflict environments marked by intimidation and political volatility. Yet this expansion comes at a tangible cost. Extensive reliance on secrecy risks undermining transparency, eroding public confidence, and weakening the perceived legitimacy of institutions whose authority depends as much on visibility as on legal mandate. The growing tension between the imperatives of protection and the foundational principle that justice must be seen to be done lies at the heart of contemporary debates over the credibility and democratic character of international criminal adjudication.

The increasing reliance on closed and private sessions across proceedings before the Kosovo Specialist Chambers has brought renewed focus to a question that lies at the core of international criminal justice: whether a trial can remain transparent and legitimate when substantial elements of the judicial process are shielded from public view. These concerns are exemplified by the ongoing administration of justice trial of former Kosovo President Hashim Thaçi and others, which highlights a broader pattern of restricted visibility that has come to characterise trial practice at the Chambers more generally.

The Kosovo Specialist Chambers were established in response to longstanding concerns that serious allegations arising from the Kosovo conflict had not been effectively addressed within existing judicial mechanisms. Persistent problems of lack of accountability, witness security, political interference, and institutional fragility prompted the creation of a specialised tribunal designed to adjudicate a narrowly defined category of crimes under Kosovo law, while operating with international staffing and physical relocation to The Hague. The Chambers were thus conceived as a corrective mechanism: insulated from local pressures, endowed with enhanced protective capacities, and entrusted with restoring credibility to the project of accountability in circumstances where domestic confidence had been profoundly undermined.

That founding logic, however, carries an inherent risk. A tribunal designed to operate at a distance in order to shield witnesses and proceedings from improper influence may, if sufficient safeguards are not maintained, drift from necessary protection into unnecessary opacity. The very features intended to secure the integrity of the process—relocation, insulation, and enhanced protective measures—can, when coupled with extensive reliance on closed and private sessions, diminish public visibility and accountability. The challenge for the Kosovo Specialist Chambers is therefore not whether protection is justified, but whether the balance struck in practice continues to reflect the narrow and exceptional character envisaged at their inception, rather than allowing secrecy to become a defining norm of adjudication.

These concerns are further compounded by the institutional choices that shaped the very architecture of the Kosovo Specialist Chambers. The decision to locate the court in The Hague, far removed from Kosovo and the communities most directly affected by its work, was justified by reference to security and insulation from political pressure. Yet distance carries consequences. Physical removal from the social and historical context in which the alleged crimes occurred risks weakening public engagement and diminishing the sense of local ownership over the process. That risk is sharpened by the Chambers’ staffing model, which excludes Kosovo nationals from all judicial, prosecutorial and administative roles. While intended to safeguard independence and impartiality, the combination of geographic displacement and complete internationalisation has further entrenched perceptions of remoteness. In a tribunal already characterised by extensive resort to closed and private sessions, these structural choices amplify concerns that justice is not merely protected, but increasingly abstracted—from the public, from the affected society, and from meaningful local scrutiny.

These structural concerns are compounded by a further and more fundamental legitimacy deficit: the exclusive focus of the Kosovo Specialist Chambers on Kosovo Albanian defendants, notwithstanding the broader context in which the vast majority of serious crimes committed during the conflict have been widely documented as having been carried out by Serbian military, police, and paramilitary forces. The absence of a single Serbian official being held accountable within the Chambers’ framework has reinforced perceptions of selective justice and political asymmetry. Accountability mechanisms that operate in only one direction, while formally lawful, struggle to command moral authority. International criminal justice derives its legitimacy not merely from procedural correctness, but from the even‑handed application of accountability. Where responsibility for mass atrocity appears unevenly pursued, justice risks being perceived not as impartial adjudication, but as fragmentary and one‑sided. One‑sided justice, however carefully constructed, is not justice at all.

Against this background, the decision to hold these trials in The Hague, rather than in Kosovo, where the crimes are alleged to have taken place, has been the subject of most criticism. Conducting trials at a distance from the affected communities undermines the principle that justice should be both accessible and visible to those most directly impacted. Trials in the location where the crimes are alleged to have occurred are essential not only for ensuring that justice is seen to be done, but also for fostering a sense of ownership over the judicial process among victims and the wider public. By removing proceedings from Kosovo, the Specialist Chambers risk perpetuating the perception of international justice as remote, detached, and unaccountable, thereby weakening the legitimacy and resonance of their findings within the very society they are meant to serve.

Open justice is not a procedural nicety. It is one of the foundational principles of any fair and credible judicial system. Courts do not operate in a vacuum, their authority rests not only on legal mandate but also on public confidence. That confidence depends on the ability of the public, the press, and the communities most affected by alleged crimes to observe and understand the judicial process.

The maxim that justice must not only be done, but must be manifestly seen to be done is not rhetorical flourish. It is a safeguard against arbitrariness and a protection against the perception that justice is being administered in secret. It is for that reason that most domestic and international legal systems enshrine the principle that criminal trials should, as a default position, be conducted in public.

Yet, in what is expected to be the last trial before the Specialist Chambers, the administration of justice trial, currently unfolding, a striking proportion, if not the overwhelming majority, of witness testimony and evidentiary argument has taken place in private or closed session. Whilst on would hope the court has its reasons, the cumulative effect is a trial that, to outside observers, appears largely hidden from view and hidden from scrutiny.

To be clear, witness protection is a legitimate and often essential concern in international criminal proceedings.  Many cases involve witnesses who may face intimidation, harassment, or even physical danger if their identities or testimony become public. The protection of such individuals must always be taken seriously and, in appropriate cases, must take precedence over the principle of publicity. Courts have a duty to ensure that those who come forward to give evidence are not placed at risk as a consequence of their cooperation.

There must therefore be a careful and principled balance between witness security and the public nature of a trial. Witness security must remain the highest consideration where genuine risks exist. However, the need for protection cannot become an automatic justification for extensive secrecy.

The difficulty arises when the restrictions imposed appear to go far beyond what would appear to be necessary to protect vulnerable witnesses. In the current proceedings, closed or private sessions have not been used for sensitive fact witnesses, as the prosecution has not called any, but for testimony from professional witnesses, including investigators, members of the prosecution, and expert witnesses. 

This raises legitimate questions. Professional witnesses are not private individuals drawn from the community; they are actors within the judicial process. Their role is to present investigative findings, technical analysis, or expert opinion to the court. In most jurisdictions, such testimony would ordinarily be given in open court. When that type of evidence is routinely heard in private session, it becomes difficult to understand how the balance between security and transparency is being maintained.

The issue is not merely academic. The KSC operates in a uniquely sensitive political and historical environment. It was established to investigate and prosecute serious allegations arising from the Kosovo conflict and its aftermath—matters that remain deeply contested within Kosovo, Serbia, and across the broader region. In such a context, transparency is not simply desirable; it is essential.

The legitimacy of international courts has often been challenged on the basis that they are remote, technocratic institutions disconnected from the communities most affected by their work. The KSC, located in The Hague but dealing with events that occurred in the Balkans, already faces this challenge. When proceedings are conducted largely in private, the distance between the court and the public inevitably grows wider.

These concerns have recently received authoritative institutional endorsement. In May 2026, the Bar Human Rights Committee of England and Wales (BHRC) published a preliminary review of the Kosovo Specialist Chambers, commissioned by the Kosovo Ombudsperson. The BHRC—the independent, international human rights arm of the Bar of England and Wales—concluded that, while the Chambers’ formal legal framework is broadly robust and in many respects aligned with international human rights norms, significant concerns arise in its practical operation. Among the areas of concern identified, the report highlighted structural challenges to transparency, the cumulative impact of procedural practices on equality of arms, and the need for sustained and independent trial monitoring. The BHRC’s call for enhanced transparency around the Chambers’ relationships with funding states and external actors, and its emphasis on rigorous independent scrutiny as essential to legitimacy, directly echo the concerns raised in these pages. That an independent body of this standing has felt it necessary to conduct a preliminary review of the Chambers’ compliance with human rights standards—and to publish structured recommendations for reform—reinforces the view that the tension between protection and transparency at the KSC is not merely a matter of procedural detail, but a question that goes to the heart of the institution’s credibility.

For victims, observers, and the wider public, the ability to follow proceedings is crucial. It allows people to see how evidence is tested, how arguments are made, and how judicial decisions are reached. Without that visibility, the process risks appearing opaque, even if it is conducted with the utmost professionalism by judges and counsel.

None of this is to suggest that protective measures are unnecessary or inappropriate. National and international courts have long developed mechanisms—such as pseudonyms, redactions, delayed broadcasts, and limited protective measures—that can protect witnesses while still preserving the essential openness of proceedings. The key is proportionality: restrictions on publicity should be strictly necessary, carefully justified, and limited in scope.

When secrecy becomes the dominant mode of operation rather than the exception, the balance risks tipping too far away from transparency. The result may be a process that is legally sound but publicly misunderstood, or worse, mistrusted.

The Kosovo Specialist Chambers were established with the express aim of delivering credible, independent, and impartial justice. Achieving that goal requires not only fairness in the courtroom but also visibility beyond it. Courts must demonstrate, through their procedures, that they are confident in the strength and integrity of the process they are conducting.

International justice is most effective when it is both rigorous and transparent. Shielding witnesses from genuine threats is essential, but shielding the process itself from public scrutiny carries its own risks.

Ultimately, justice delivered behind closed doors—even when done with the best of intentions—can struggle to command the confidence that open justice is designed to secure. For a tribunal charged with addressing some of the most sensitive issues arising from the Kosovo conflict, maintaining that confidence is not optional. It is indispensable.