The article was originally published on BiEPAG Blog.

The announcement, on 24 June, that Kosovo’s president is indicted for war crimes sank a White House summit on a deal between the country and its former mother state, Serbia. Both events are both less and more surprising than one might think.

In 2010 a Council of Europe report wrote that the evidence of the crimes committed by leaders of the Kosovo Liberation Army (KLA) in 1998–2000 is ‘overwhelming’, and largely known since the facts. Quoting Western intelligence papers, the report describes Kosovo’s president as ‘the most dangerous of the KLA’s “criminal bosses”’. He and other suspects became the main pillar of the political elite that rules the country since that war. They evaded justice, the report explains, by reason of ‘two shocking dynamics’: the elimination and intimidation of witnesses, and the ‘faltering political will on the part of the international community to effectively prosecute them’.

In 2011 the EU ordered an investigation on the matters discussed in the report, which in 2014 reached conclusions ‘largely consistent’ with it. In particular, the investigators ‘found compelling evidence to file an indictment against certain former senior officials of the [KLA]’. The EU then pressed Kosovo to establish a court to hear these charges. It is before this court that the indictment is now being discussed.

This is a peculiar court. Regulated by Kosovo law but led and staffed by the EU, it is an ad hoc court, set up to deal with those crimes and only with them. It is a ‘special’ court. Such courts are explicitly prohibited by the Dutch, German and Italian constitutions, for the principle – affirmed also by the European Convention on Human Rights – is that one should be judged by courts identified ex ante on the basis of general criteria equal for all, not by courts established ex post for a certain crime or a certain suspect.

Distasteful though it is, however, the alternative to such a court was impunity (I argued in 2014). More problematic is that the court’s judges and prosecutors are chosen by the head of the EU’s foreign service – under rules that ensure no transparency – and effectively have no guaranteed tenure, making the court structurally vulnerable to political influence.

This might explain why it took six years to issue indictments based on evidence that has authoritatively been described as ‘overwhelming’ (2010) and ‘compelling’ (2014). For the reasons that had led Western powers to protect KLA’s leaders still applied: Kosovo is (also) a Western project, and prosecuting its leaders for their war crimes – and their subsequent predation of the country’s resources – would have gravely tainted it. Their potential influence over the court is such that we may safely assume that the indictment was issued after a nod by at least some Western powers. So we must ask why their approach has changed.

The remarkable rise of a fresh, strong, and fairly promising political party in Kosovo – discussed in a previous post for this blog – provides the most plausible answer: some European powers judged it a better partner, capable of finally starting Kosovo’s democratic and economic development, and ditched the old elite. The same powers might also have approved the untimely announcement of the indictment – which has not yet been confirmed – in order to throw a spanner in the wheels of Washington’s hurried attempt to broker a deal between Kosovo and Serbia, in competition with the EU’s own efforts on this matter. But let’s leave this aside.

To conclude on the indictment, it concerns also ten or more people, still unnamed, and the former head of KLA’s secret service, which after 1999 became a powerful criminal organization (specialised also in dealing with actual and potential witnesses). These people are criminals, probably, and the most successful in the region. Their rights and those of their victims are both at risk, however, as this is not a court of justice in the usual sense of the word. Its credibility will depend entirely on its capacity to hold scrupulously fair trials.

This is one reason why I expected the domestic repercussions of the indictment to be fairly weak. The other reasons are that the myth that KLA’s war was ‘pure’, long propagated by its leaders, remains widespread; and that Kosovo’s new political party was and remains opposed to the special court. By sinking the Washington summit, moreover, the indictment saved the old elite from bowing a deal that would have been extremely unpopular in Kosovo, and could have provoked the downfall of their government, a snap election, and a decisive victory by their domestic opponents.

I was surprised, therefore, when after a few days of silence on 29 June Kosovo’s president pledged to resign should the indictment be confirmed by the pre-trial judge (while proclaiming his innocence, of course).

If my analysis is correct this man is a cornered cat, who has been ditched by most of its Western supporters and at home faces an unbeatable political opposition. Losing power, he risks losing also his liberty and at least part of his money, as besides the war-crimes charges he is likely to eventually face also corruption and organized-crime ones. Such a person should hold on to his office for as long as possible.

Unless that pledge is theatre, therefore, its rationale is unclear. One would be tempted to explain it by pointing, again, to the court’s vulnerability to political influence. He is unlikely to have received a credible promise of being acquitted, however, as his friends are in Washington but it is the EU that runs the court (the chief prosecutor is a US official, yes, but Brussels can replace him). The question remains, therefore, and adds to the need of ensuring a visibly fair trial. After Eulex’s debacle, the machinery of EU foreign policy should not make a mess of this court too.