Plea Negotiations on Reparations at the Kosovo Specialist Chambers

Rule 94(2)(c) of the Kosovo Specialist Chambers (KSC) Rules of Procedure and Evidence (RPE) provides that written plea agreements can be reached between the Specialist Prosecutor (SP) and the Defence on reparations.

The Rule adds an additional layer of complexity to the controversial but gradually consolidating use of plea negotiations as a procedural tool in international criminal law (see Bruno de Oliveira Biazatti). No other currently functioning hybrid tribunal affords the option for plea negotiations on reparations in their governing laws. The extensive practice of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICRT) concerned only charge and sentence bargaining (see here, here and here). Moreover, as highlighted by de Oliveira Biazatti, the Rome Statute (RS) of the International Criminal Court (ICC) and the Office of the Prosecutor (OTP) Guidelines for Agreements Regarding Admission of Guilt do not elaborate on the possibility of plea negotiations on reparations (para. 17).

Inspired by the arguments of de Oliveira Biazatti in the context of the ICC, this post will examine the following legal issues and possibilities raised by plea negotiations on reparations at the KSC: (i) enforcement of reparations against the accused; (ii) the impact of reparations in plea agreements; (iii) Kosovo’s stance on plea negotiations; and (iii) the involvement victims in plea negotiations on reparations.

Reparations Borne by the Accused  

Rule 94(2)(c) RPE places itself within the KSC’s legal framework on reparations. Reparations at the KSC are governed by Articles 22(8) and 44(6) of the Law on Specialist Chambers and Specialist Prosecutor’s Office (the Law) which require reparations orders to be made directly against the convicted person. Unlike other international criminal justice bodies, such as the Extraordinary African Chambers and the ICC, the KSC has no trust fund to compliment or defer court ordered reparations. This means that reparations can only be funded from the assets of the accused upon conviction or through civil litigation (Article 22(9)). On 16 December 2022, the KSC Trial Panel I pronounced its first ever conviction for war crimes (see trial judgement in the case of Specialist Prosecutor v. Salih Mustafa (Mustafa Judgement)). Yet, it is unclear how the KSC’s legal framework deals with the enforcement of reparations, creating uncertainty as to the availability of reparations upon conviction.

A plea agreement on reparations could potentially secure, or at least indicate, the possibility of an enforceable reparations order against the accused. This has proved a difficult task for the international criminal justice fora, especially when dealing with indigent perpetrators. For instance, the Extraordinary Chambers in the Courts of Cambodia is the only other currently functioning hybrid tribunal which provides the option for reparations to be borne by the convicted person (Internal Rules Rule 23 quinquies (3)(a)). After the convicted person was found indigent in its first ever case (para. 67) the mandate of the Victims Support Section was extended to allow for engagement with external funding sources for reparations in future proceedings. At the ICC, the indigency of the convicted person does not affect their liability for reparations, but the resources of the Trust Fund for Victims can be simply advanced to comply with the reparations order, which the convicted person is required to later reimburse (see Lubanga Reparations Appeals Judgement, para. 115).

A plea negotiation on reparations at the KSC would require the SP and Defence to ensure that the accused obtains the relevant asset(s) to fund reparations. However, for any form of reparation(s), such would require a voluntary commitment from the accused (RPE Rule 94(5)). This is highly unlikely given the persisting and pervasive disparaging attitudes of the KSC in Kosovo. The KSC has acknowledged the widespread misconceptions of the KSC as exclusively targeting and undermining the war efforts of Kosovo Liberation Army (KLA), ultimately leading to a climate of fear and intimidation towards those in Kosovo who cooperate with the KSC (Mustafa Judgement pages 4862-4864). Some of the KLA’s most hailed war veterans and Kosovo’s national politicians are indicted before the KSC. As such, there is little willingness to acknowledge victims’ harm. The dismissive attitude and strategic “silence and non-engagement” of the Defence on victims’ accounts and reparations developments in the case of Mustafa gives a taste for how approachable cooperation for reparations could be for other cases (Mustafa Closing Statements (15 September 2022) pages 4842-4856).

Adding Reparations to the Negotiation Mix

Reparations further complicate the delicate “Scylla and Charybdis” plea negotiation balance (de Oliveira Biazatti paras. 5-11). The KSC Trial Panel is yet to develop its jurisprudence on reparations (see for instance Article 22(7) the Law). Nonetheless, the Victims’ Counsel in the case of Mustafa has argued that “proportionate” individual reparations should be decided in consideration of both the gravity of the violations and the harm suffered (Mustafa Closing Statements (15 September 2022) pages 4845-4847).

This methodology requires plea agreements to be negotiated with extra caution. Agreements with proposed decreases in charges, for instance, would still need to ensure that reparations correspond to the calculated harm suffered, which will differ for each individual victim or collective group of victims respectively from what the charges indicate. The appropriateness of deferring reparations to civil litigation and other national mechanisms (see here and here) is yet to the determined. For the purposes of ensuring prompt and adequate reparations, this is where judicial backlash could also lie. On the other hand, agreements which propose pledges of reparations from the accused in exchange for more lenient charges and/or sentences could also be anticipated. Thus, involving reparations in plea agreements presents a golden opportunity for the Trial Chamber to elaborate on how reparations are conceived as part of the “interests of justice” at the KSC vis-à-vis its more retributive objectives of accountability and punishment (Rule 94(5)(f) RPE).

Kosovo’s Stance on Plea Negotiations

Compared to those of the ICC, the political risks of engaging in plea negotiations on reparations at the KSC are not as severe, or at least unwarranted, for two reasons.

First, plea agreements are an exclusive alternative justice option provided within Kosovo’s Criminal Procedure Code (CPC) which guides the KSC in determining its RPE (Article 162(6) Constitution of Kosovo). In the domestic judicial context, plea agreements can be reached between the state prosecutor and defence on punishments and “other considerations in the interest of justice” (Article 233 CPC) which could involve reparations. In any case, plea negotiations must address any claim for damages that has been filed or charged in the indictment by the injured party, and when the defendant is participating as a cooperative witness, the claim for damages must be “treated by the plea agreement” (Articles 233(8) and (9) CPC).

Second, Kosovo’s current stance on the use of plea negotiations, at least in domestic proceedings, is yet to be adequately determined in current times. The 2017 Fair Trials report referenced by de Oliveira Biazatti cites what it acknowledges as a now-unavailable 2009 American Bar Association Legal Reform Index for Kosovo finding “considerable resistance [in Kosovo] to the use of plea bargaining (…)” (page 9). Otherwise, a review report of the CPC by the Organisation for Security and Co-operation in Europe (OSCE) Mission in Kosovo describes that the rarity of plea negotiations in Kosovo between 2013 and 2015 can be largely explained by low sentences commonly imposed and some improvable administrative pitfalls (pages 25-26). If anything, these explanations infer a lack of incentive for the parties to negotiate rather than a firm stance against it. The Guide to the CPC elaborates on plea agreements and encourages the state prosecutor to seek them in the Kosovo context to advance complex investigations and protect victims against re-traumatisation (page. 61).

Victims’ Involvement

 In a similar way to the ICC, victims before the KSC are entitled to participate in proceedings through representation by a Victims’ Counsel (Article 22(5) the Law). Yet, Rule 94 RPE only allows the SP and Defence to be involved in reaching plea agreements. Excluding the Victims’ Counsel for plea agreements on reparations would be particularly undesirable given that, although Trial Panel decisions on reparations require the consideration of victim representations anyway (Article 22(11) the Law), it undermines victims’ right to acknowledgement (Article 22(3) the Law) which is effectively achieved through their participation in proceedings (the KSC website states that participating victims “may receive the acknowledgement that they were victims”).

Conclusion  

Negotiating reparations is an unprecedented and understandably daunting idea for the international criminal justice realm. In the context of the KSC, it gives the SP, Defence, and Trial Panel the power to play with, define, and potentially undermine, one of victims’ most exclusive rights. What forms of reparations can be gained from each accused, monetary or other, must be carefully sought and weighed against other avenues to promptly and adequately address victims’ harm suffered. In addition to establishing its own culture of negotiated justice, plea negotiations provide a unique legal framework for the KSC to develop its jurisprudence on reparations in proceedings to come.