On 17 April 2025, the Kosovo Specialist Chamber of the Constitutional Court (Chamber) issued a worrying judgment regarding the more lenient punishment – the lex mitior principle under Article 7 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and Article 33 of the Kosovo Constitution. The reasoning relies on the legal status of the Kosovo Specialist Chambers (KSC) and its applicable law. Hence, before embarking on the facts of the case and the analysis of the judgment, a brief overview of the KSC and applicable law is provided. The conclusions zoom out and share concerns about the wider implications of this judgment. The KSC, seated in The Hague, were established in 2015 as special judicial institutions within the justice system of Kosovo to investigate, prosecute and adjudicate international crimes committed during and in the aftermath of the conflict in Kosovo, reported in the Council of Europe Parliamentary Assembly Report Doc 12462 of 7 January 2011. As regards substantive criminal law applicable before the KSC, Article…
Kosovo
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Council of Europe: Kosovo ante portas?
Since declaring independence in 2008, Kosovo has made the recognition of its statehood and the related issue of its membership in international organizations a priority of its foreign policy. After the Parliamentary Assembly of the Council of Europe recommended on 16 April 2024, by 131 votes in favour, 29 against and 11 abstentions, that Kosovo be invited…
First war crimes conviction at the KSC: Developing jurisprudence and the right to reparations
Last December, the Appeals Panel at the Kosovo Specialist Chambers (KSC) delivered its judgment in its first war crimes prosecution. Salih Mustafa, a special unit (BIA) commander in the Kosovo Liberation Army during the Kosovo war had been convicted for the war crimes of murder, torture and arbitrary detention. He is now facing 22 years…
An Effective Form of Judicial Treatment of Foreign Terrorist Fighters in Kosovo?
Introduction Following the defeat of Islamic State in 2018 in Syria, thousands of Europeans accused of fighting for ISIS remain detained in Kurdish jails in Syria, while women and children related to these fighters are also living in several camps nearby the Iraqi border. Due to the absence of adequate infrastructure, some ISIS fighters are imprisoned in schools…
EJIL:The Podcast! Episode 18 – “Be Careful What You Ask For”
In this episode Dapo Akande, Marko Milanovic and Philippa Webb are joined by Philippe Sands (University College London and 11KBW) and Margaretha Wewerinke-Singh (University of Amsterdam and University of the South Pacific). The focus is on the advisory function of international courts and tribunals. In December 2022, the Commission of Small Island States on Climate Change and International…
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