Post-conflict societies face fundamental questions, often including how to address the lasting legacy of their dark past, and what kind of transitional justice they wish to pursue. Having in place some type of mechanism of transitional justice is crucial in addressing the task of building sustainable peace by advancing justice and securing reconciliation. The types of approaches that post-conflict societies adopt to deal with mass atrocities and human suffering depend on many factors, including history, culture and expectations, the nature of the extant legal system, and the specific needs of the society in question. Since 1993, a number of permanent and ad hoc international criminal tribunals have been established to address genocide, crimes against humanity and war crimes, resulting in one of the most extensive waves of institution-building in modern international relations. More recently, on August 3, 2015, Kosovo’s amendment to Kosovo’s Constitution to enable the establishment of a ‘Special Court’ with powers beyond the ordinary jurisdictions of the institutions of a sovereign state. Kosovo’s special crimes court is expected to investigate alleged evidence proffered by the European Union Special Investigative Task Force of forced detention, torture, murder and organ-harvesting allegedly committed by former members of the Kosovo Liberation Army (KLA) between 1 January 1998 and 31 December 2000. With the creation of this unique tribunal, a natural question is how it comports with the established standards for international criminal justice. This court will be sui generis, which can sometimes raise questions about the principle of equality; not only the law but its application must be the same for all. What is apparently emerging is a special court that will be formally part of Kosovo’s judicial system, at least in theory, but will be staffed with foreign judges selected by the EU, will sit abroad (probably in The Hague), will be governed by special rules, and will be empowered to assess the constitutionality of its own rules and its own existence. The new court therefore appears poised to sits uneasily with traditional notions of sovereignty, which quintessentially includes the exercise of judicial authority as a central characteristic of statehood. As such, this court already appears undermined with paradoxes and shortcomings, even before it has begun to function.
Dr Rudina Jasini is an attorney and researcher specialising in international criminal law and human rights law. Her doctoral research focused on the participation of victims of mass atrocities as civil parties in international criminal proceedings. Dr Jasini has been a visiting scholar at Harvard Law School and the Max Planck Institute for Foreign and International Criminal Law. She has taught tutorials in public international law at Oxford University. Prior to her time at Oxford, she worked for the UN International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague as a legal counsel on the defence team in the Haradinaj case. She also has extensive experience as a legal consultant with Impunity Watch and the Slynn Foundation. Dr Jasini is the recipient of numerous academic awards and author of several peer- reviewed articles on international justice. She has presented her work at various conferences and symposia. In April 2015, she was elected to be a member of the International Law Association Committee on Complementarity in International Criminal Law. Dr Jasini holds a DPhil (PhD) from Oxford University, an MSc in Criminology and Criminal Justice from Oxford, an LLM in International Legal Studies from Georgetown University Law Center and a BA in Law from the University of Tirana.