Justice in a Vacuum: The Kosovo Specialist Chambers and the Cost of Unaccountable Independence

A new independent review finds a court that is impressive on paper yet opaque in practice. Its first response to scrutiny was to say its critics had no standing. That instinct is the problem.

Justice in a Vacuum by Toby Cadman

When the Kosovo Specialist Chambers (“Specialist Chambers”) was created, the promise was simple and serious. A court staffed by international judges, seated far from Prishtinë in The Hague, would try the gravest allegations arising from the 1998 to 1999 conflict free from the intimidation, witness interference and political pressure that had defeated previous attempts at accountability. Insulation was the point. The difficulty, a decade on, is that the Specialist Chambers has been insulated not only from local pressure but from almost every form of external accountability, and a court that answers to no one outside its own walls is a court the public is asked to trust on faith.

That tension was thrown into sharp relief last month. The Bar Human Rights Committee of England and Wales (“BHRC”), at the request of Kosovo’s Ombudsperson, published a careful and deliberately preliminary review of the Specialist Chambers’ compliance with human rights standards. It is not a polemic. It accepts that the court’s formal legal framework is broadly robust and, in many respects, well aligned with the European Convention on Human Rights (“ECHR”) and the International Covenant on Civil and Political Rights, both of which are part of Kosovo law. Its concerns lie elsewhere: in how the framework actually operates, and in who, if anyone, is in a position to check it.  Let us not forget that the closest hybrid institution to the Specialist Chambers, the State Court of Bosnia and Herzegovina, was closely scrutinised by external human rights organisations, and actually entered into a formal agreement with the Organization for Security and Cooperation in Europe (“OSCE”) to monitor the war crimes trials.

The Specialist Chambers’ reply was revealing. Rather than engage with the substance, it issued a statement purporting to “correct the record”, whilst not engaging with any of the substantive findings by the BHRC in its report, stressing that neither the Ombudsperson nor the reviewers had any standing before it, and that the report would not affect its judicial work. It added, accurately, that the review did not find any individual decision to have violated an accused’s rights. However, that was not the purpose of the BHRC review, this was a temperature check, and it must be remembered that some of these matters remain sub judice. In fact, whilst the BHRC found that the legal framework was largely compatible with the ECHR, it was the practice that caused concerns.  For example, one of the concerns raised was that no accused person could be provisionally released in the Netherlands, the seat of the Specialist Chambers, which therefore raises a real issue as to compatibility with, in particular, Article 5(3) of the ECHR.  It must be remembered that the ECHR is not a set of illusory or aspirational directive principles, it is intended, as the European Court has consistently held, that the judicial organs should make whatever arrangements are necessary to avoid breaches of the ECHR and to uphold the principles and protections of fundamental rights.  It is here that the response by the Specialist Chambers actually misses the review’s point, and in missing it, proves it. The criticism is not that a particular verdict is unlawful. It is that the conditions which would let anyone reliably know, namely transparency and independent accountability, are largely absent.

The statement that “neither the Kosovo Ombudsperson nor the BHRC have standing before the Specialist Chambers” also misses the point: standing is not needed for external, independent fair-trial monitoring. NGOs that robustly defend transparency and the rights of the accused at the domestic level, and many States that do the same at the Universal Periodic Review and other UN fora, tend to shift gear once the forum becomes international, closing ranks around the institutions and treating outside review as illegitimate, shielding those institutions from the kind of independent monitoring on which the protection of fair trial rights depends. 

It is notable that during the recent presentation held by the BHRC in the Hague where it officially released its preliminary report, diplomatic missions attending the event took it as their responsibility to robustly, and in some respects blindly, defend the institution and brush away the very real concerns that had been raised.

This matters all the more given that the Specialist Chambers is effectively a testing ground for the next European endeavour: the Special Tribunal for Ukraine. States and the Specialist Chambers alike should welcome the scrutiny and engage with it constructively, treating it as an opportunity for lessons learned rather than dismissing it outright.

The Chambers response further criticises the BHRC’s review as merely focusing on defence arguments and avoids any discussion of victim rights.  It is important to note that fair trial rights only attach – in a criminal trial, to an accused.  Moreover, it goes to broader concerns raised in the report regarding how the court balances the accused’s fair trial rights and victims’ rights.

The response by the Specialist Chambers would tend to indicate that it is immune from any form of scrutiny.  This is deeply problematic. There is no justification for an apparently impenetrable blanket of secrecy over judicial proceedings and how they are conducted. If the credibility of the institution is to be established, and the concerns over transparency removed, then - as always - sunlight is the best disinfectant.

Importantly there is no need to deal in the abstract, because the court has already supplied the clearest possible illustration.  On more than one occasion, the President of the Specialist Chambers held confidential briefings for European Union diplomats, that is, for the political bloc that funds the institution, about its ongoing work. The public learned of this only because a transcript of one such briefing reached Euronews. According to the recusal application that followed, and as reported at the time, the President used a confidential diplomatic briefing to complain about the number of defence lawyers said to be complicating the court’s work, while the Specialist Prosecutor reportedly told diplomats that a defendant would receive a life sentence before any trial had begun or any evidence had been led. When this came to light, the response was that such briefings are routine, twice-yearly updates that simply summarise matters already in the public filings.

At the BHRC presentation in the Hague, diplomats brushed aside these concerns, taking the line of the Specialist Chambers that it is common practice and all courts do it.

That answer fails twice over. First, it is not accurate. A status update that summarises public filings does not include a sitting judge editorialising to the court’s funders about the defence bar, nor a prosecutor forecasting the outcome of a case before a word of evidence has been heard. Those matters are not in the public filings. They are the opposite of neutral case management, and describing them as a routine summary does not make them one. There is a gulf of difference between providing administrative updates and financial reporting to the court’s donors and discussing matters related to future or ongoing case proceedings – even more so when those very States may be called upon to provide their consent for the interim release of an accused on their territory.  Second, even if such contacts were genuinely commonplace, frequency is not a justification. A practice does not become compatible with judicial independence, impartiality and equality of arms simply by being common. The measure is not what officials habitually do, but what the right to a fair trial and the appearance of justice require. Confidential, one-sided communications between the bench and the prosecution on one side and the court’s political paymasters on the other, touching live cases and the parties before it, would be improper whether they happen once or twice a year. “It is done all the time” is a description of the problem, not an answer to it.  If it is indeed a practice of international courts and tribunals, then that practice needs to stop. Further, let us not forget that even if it is deemed acceptable by an international court or tribunal, which it is not, the Specialist Chambers is not an international court.

That episode captures both failures at once. The transparency deficit is plain: we know what was said only because a document leaked, not because the court disclosed it, and the briefings were confidential by design. The review’s recommendation that the Specialist Chambers adopt clear protocols for such communications, with notice and disclosure to the parties and, where appropriate, their participation, is therefore not abstract. It answers a documented event. And the same evidentiary anxieties run through the wider review: reliance on material of contested provenance, including externally sourced intelligence, admitted without the rigorous scrutiny of origin and chain of custody that a domestic court would demand. A court cannot demonstrate that it is fair while the channels that feed it, of money, of judges, of evidence, of quiet diplomatic contact, remain in shadow.

Now consider accountability, and here the vacuum is structural. Where can a litigant, or a citizen, turn to test how the Chambers exercises its power? When the diplomatic briefings were challenged, the recusal of the President and the Vice-President was a matter for the same Specialist Chambers judges.  Appeals run to the Specialist Chambers’ own panels. Constitutional questions are resolved within the Specialist Chambers’ own structure. Oversight of human rights compliance falls to an Ombudsperson dedicated to the Specialist Chambers, that is, internal to it, while the national Ombudsperson who commissioned this review is told he has no standing at all.  Detention is monitored by the International Committee of the Red Cross, and only detention. There is no avenue to challenge the President’s expansive administrative and judicial functions, and no real mechanism to question judicial appointments. Every line of accountability loops back into the institution itself. That is what it means for a court to sit in a vacuum: it reviews itself, it certifies itself, and then it declares external review irrelevant.

The consequences for the defence are not abstract either. The review identifies resource and procedural imbalances that tilt the field against the accused, structural obstacles to provisional release that keep defendants in detention, and evidentiary rulings that favour the prosecution’s untested material. These are precisely the harms that independent oversight exists to catch. Their significance is magnified, not reduced, by the fact that no independent body is positioned to catch them.

It is worth being fair to the Specialist Chambers. Its judges are serious people doing difficult work, and the cases before it, including the trial of former Kosovo Liberation Army leaders, carry enormous weight for victims who have waited a very long time for a reckoning, although it must be acknowledged that this is the fourth international(ised) judicial mechanism since the war. The point is not that the court is corrupt or that its outcomes are predetermined. The point is more uncomfortable than that: we are being asked to assume the court’s fairness rather than to verify it, and the institution has been built so that verification is close to impossible. When a human rights review lands, the answer cannot be that the reviewers lack standing. Standing is a doctrine for litigation. It is not a shield against accountability, and a confident court does not reach for it.

None of the remedies the review proposes threatens the court’s independence. Allow genuine challenges to the President’s administrative and judicial decisions. Publish protocols governing contact with states and other outside actors, with notice and disclosure to the parties. Subject contested evidence to real scrutiny of its origins. Be candid about the relationships with funding states. Invite sustained, independent trial monitoring. Each of these strengthens legitimacy rather than eroding it. A court with nothing to hide has nothing to fear from any of them.

International criminal justice lives or dies on a single proposition: that power, even power exercised in the name of victims, must itself be answerable. The Specialist Chambers was meant to embody that proposition. By holding secret briefings with its funders, by sealing itself off from scrutiny, and by meeting good-faith criticism with the language of standing, it risks becoming its opposite, a tribunal that demands accountability of others while accepting none itself. Legitimacy cannot be self-certified. It has to be shown, in the open, to the people entitled to ask. Until the Specialist Chambers is willing to do that, it will keep handing down judgments that are sound on paper and unverifiable in practice, which is the very condition the rule of law was built to end.

Disclosure: one of the co-authors of the report discussed here is a member of the author’s chambers, and the author has acted for defendants before the Specialist Chambers, including in an application concerning the diplomatic briefings described above.