In a wide-ranging final public talk as Specialist Prosecutor, David Schwendiman discussed the origins of the Specialist Prosecutor’s Office (SPO), the challenges he had faced as Specialist Prosecutor and the challenges that the organisation will face in the years to come, as well as what makes the investigation he has overseen unique, time-consuming and resource intensive.
Mr Schwendiman – whose mandate as Specialist Prosecutor ceases at mid-night on 31 March when his appointment as a Senior Foreign Service Officer in the US State Department comes to an end – was speaking at the Grotius Centre of Leiden University in The Hague.
He took time to underscore certain policy guidance that had marked his time as the Specialist Prosecutor. Under Article 86 of the Rules of Procedure and Evidence, which were promulgated by the Specialist Chambers in July 2017, the Specialist Prosecutor must be satisfied that “there is well-grounded suspicion that a suspect committed or participated in the commission of a crime within the jurisdiction of the Specialist Chambers” before an indictment can be filed.
In addition and based on best professional practice, Mr Schwendiman explained that he had directed SPO staff to make a further assessment to determine whether charges ought to be filed; that is, whether a proposed charge is supported by:
- evidence that will be available to present at trial; and
- evidence that after it is tested by a well-informed, responsible and vigorous defence will likely be sufficient in quantity and quality to result in verdicts of guilty that can be sustained on appeal as to each accused and each charge proposed for confirmation.
Mr Schwendiman also explained that, under the Kosovo Constitution and the Special Law, the Specialist Prosecutor and Specialist Chambers are bound, along with other international human rights instruments, by the European Convention on Human Rights. In this way, the Specialist Prosecutor is also responsible for helping victims achieve the benefit of the rights guaranteed to them by the same instruments.
“Principal among them is the obligation to reasonably investigate the death and disappearance of victims of the crimes within the mandate of the Specialist Prosecutor, and to locate, exhume and identify those still missing so they can be given back their identity and returned to those who survived them,” Mr Schwendiman said, pointing out that his policy had been “to give this our best effort consistent with our mandate and to the extent our resources permit”.
The Specialist Prosecutor stressed the continuing commitment of SPO staff to protect vulnerable victims and witnesses.
Mr Schwendiman spoke of the complexity of gathering documentation, locating witnesses and finding other material that may have evidentiary value, arguing that this required patience and perseverance as well as diplomacy.
“The Specialist Prosecutor’s Office is now assessing and evaluating approximately 700,000 pages of documentation, comprising around 70,000 documents, along with some 6000 related items – videos, photographs, transcripts and other items collected during the investigation to date,” he said.
These tasks must be completed before the criteria Mr Schwendiman described for charging can be met.
“We must do it right and do it well to ensure that we meet the standard I spoke of earlier and avoid significant delays and problems later on,” he said, stressing that it was “also essential if we are to meet our goal of producing outcomes that are legitimate and are perceived as legitimate by those they affect.”
The Specialist Prosecutor also addressed the issue of accountability, saying that: “The business of the prosecutor is accountability; individual accountability for crimes proven beyond a reasonable doubt by evidence acquired through means accepted as fair and reliable not only according to international standards but also in the domestic systems involved.
And he emphasised that: “Accountability must be for individual acts not group liability for any of the conduct covered by the Special Law.”
Mr Schwendiman made clear that the work of the Specialist Prosecutor and Specialist Chambers was not an attack on a historical narrative such as the Kosovo independence narrative or the Kosovo Liberation Army veterans’ narrative.
“The EU is not investing as much as it is, the US did not send me here to do this, none of us are involved in what we are doing to change history, or to attack a narrative, or an organization, or a group, or ethnicity.
“Our sole objective is to do what the law and the evidence allow us to do to put people to proof for their own acts,” he said.
“If organizations to which individuals belonged or which they controlled or directed are discredited, it is the crimes of the individuals taken together or alone that are the cause, not the act of investigating or prosecuting them,” the Specialist Prosecutor said.
Mr Schwendiman expressed disappointment that he would not be able to finish what he was privileged to be part of, but explained that his departure was just “a personnel change, not a change in focus or commitment, not a change in US policy or commitment, not a time nor event that signals anything.”
And he made clear that his leaving would not change anything in terms of the work of the SPO, pointing out that his deputy, Kwai Hong Ip, will be taking over as Acting Specialist Prosecutor until his successor was appointed, stating that he “couldn’t be leaving the Office in better hands”.
Mr Schwendiman’s talk, entitled “Reflections on My Time as Specialist Prosecutor and the Challenges Ahead”, took place in a packed hall of Leiden University in front of an audience including legal practitioners, journalists, diplomats and students.
The full text of this talk in English is available below (click on the hyperlink).