Last week, BIRN journalists took to the streets of Prishtina to gauge the reaction of Kosovo citizens to commentator Baton Haxhiu’s proposition that an amnesty for crimes committed in the Kosovo war be included in a final agreement between Kosovo and Serbia as well as dissolvement of the Special Court which he claimed on 24 April during a debate program.

Most passersby BIRN spoke to were entirely opposed to the idea. “This is unforgivable, there must be no amnesty,” said Gani Imeri. “Serbia committed crimes not just in Kosovo, but destroyed all of Yugoslavia. No pardon, no forgiveness, no amnesty.” 

“Never,” said Anton Gashi. “Regardless of who committed the crimes, we must not be servile, courts should decide on this issue.”

War crimes should not be afforded amnesty anywhere in the world, and especially not in Kosovo, said Ivan Nikolic. “20 years later families are still feeling the consequences of the war. Everything happening around us today is a consequence of the crimes that were committed. No matter who committed them, there should be no amnesty,” he told BIRN.

Aleksandar Rapajic said that Kosovo should not even begin to think about a war crimes amnesty. “The crimes that took place in Kosovo are punishable even 30, 40, 50 years later,” he said. “I fear that war criminals in Kosovo have already been given a kind of amnesty, because nothing has been done for them to be punished.”

BIRN contacted Baton Haxhiu for further comment on his statement and he refused to answer, stating that he has written an opinion piece in which he explained the “misunderstanding.” 

Haxhiu apologised for inconvenience he may have caused to families of victims of the war, but the nature of the amnesty that was proposed by him remains unclear from his response. “What I said has been taken out of context,” he said. “I want to clarify that the term amnesty that I used is that which is foreseen by law, amnesty that frees the nations from each other, but not an amnesty that gives amnesty to the horrendous crimes of individuals and the crimes of the Serbian state.”

Questions over a potential amnesty were also put to a panel of survivors of the war, human rights activists and lawyers that have committed themselves to the pursuit of justice for war crimes during a debate on BIRN’s televised program Jeta ne Kosove on Thursday.

The participants all stated that, rather than an amnesty, failures in cooperation between Kosovo and Serbian justice institutions should be the priority of the dialogue, as failure to address these issues would contribute to an impunity for perpetrators that is “akin to an amnesty.”

Amnesty would negate the efforts of survivors and victims seeking justice

During the debate, MP Saranda Bogujevci reflected on the efforts that she and her family have undertaken to hold those responsible accountable for killing 14 members of her family in Podujevë during the Kosovo war. 

According to Bogujevci, without the continued widespread support from other survivors and civil society, it would not have been possible for her to push for the arrest, investigation and prosecution of the perpetrators.

“The key to securing justice for family members is ensuring that they have support. We were fortunate that we had so many people around us, it is impossible to fight on your own,” said Bogujevci, who in 2003 in Belgrade testified in the trial of one of the killers of her family following support from human rights organisations and psychologists.

That same year, she travelled to Canada to face another of those responsible in the flesh. “An organisation of Albanians in Canada organised protests on the day that two of the perpetrators were seeking asylum,” Bogujevci said. “One was expected to appear in front of the media, and I stepped in front of him and asked the authorities if they were aware that there is someone in Canada that is responsible for murdering my family.”

Proponents of an amnesty would negate the efforts of victims, survivors, their friends and society in Kosovo over the last two decades such as these, Bogujevci said, as well as disregard the constant persistence of those who have not stopped fighting to ensure that perpetrators are held criminally responsible for their actions. 

“What is important for us is that society works together to provide us with the opportunity to seek justice for our families,” said Bogujevci, who has seen five people criminally responsible for the murder of her family tried and sentencted to between 15 and 20 years in prison for their crimes.

Civil society warns that time is running out

According to statistical data from the Humanitarian Law Centre in Kosovo, HLC, in the 20 years since the war ended, a total of 41 people have been issued prison sentences with a final guilty verdict for war crimes by courts in Kosovo. This number includes the period when judicial processes were overseen by the UN interim administration in Kosovo and the EULEX Rule of Law Mission.

Bekim Blakaj, the director of HLC Kosovo, noted during the debate that over 11,000 civilian lives were lost during the war, meaning that the percentage of victims that have been provided justice is “not even worth noting.” While there is not a country in the world that has successfully found and sentenced every perpetrator of war crimes after a conflict, he said, the window of opportunity to bring as many individuals to trial as possible is closing.

“Time passes, war crimes get written off, victims, witnesses and perpetrators get old,” said Blakaj. “We don’t have the commodity of waiting for procedures to start.”

Blakaj noted that the absence of discussions over cooperative transitional justice mechanisms and the issue of missing persons from the dialogue has significantly contributed to the failure of courts in Kosovo to prosecute those responsible for war crimes. “The issue of missing persons must be part of the discussion. People have a right to know the fate of their loved ones, and for this reason technical cooperation between Kosovo and Serbia is important,” he said.

The lack of cooperation between the leaders and institutions of the two countries in this regard amounts to an amnesty in itself, he said, noting that historically, amnesty has been provided by national leaders only when it suits their political interests. 

“The most important thing is that whoever proposes amnesty must be able to justify their arguments, and society must be able to put pressure on those people and bring arguments of their own,” he said.

International mechanisms for justice plagued by bureaucracy

In the Republic of Serbia, the pursuit for criminal justice has been no easier. 

According to Marija Ristic, a film producer and journalist that has been monitoring judicial proceedings in Serbia since 2010, the Serbian prosecution has sentenced very few individuals for their crimes during the wars in former Yugoslavia. She added that the prosecution has turned a blind eye to responsible individuals higher up in the chain of command in Serbian military and political structures of the time. 

Since the establishment of the Special War Crimes Court in Belgrade in 2004, 50 people have been issued prison sentences for crimes committed across the entirety of the former Yugolsavia, she said, and only eight of those trials addressed war crimes that occurred on the territory of Kosovo.

“Trials are scheduled, then cancelled, then postponed. There will be small developments in the process but then they will be continuously interrupted,” said Ristic. “In the last five years, we have seen a trend in Serbia where war crimes trials involving Kosovo do not proceed as planned. Crimes that happened in 1999 are being completely neglected, so now, there are no new cases about Kosovo.”

According to Ristic, this failure can be attributed to a desire for the dialogue with Kosovo to progress. “In an attempt to achieve something with the dialogue, focus has been turned away from the past,” she said. “On top of this lack of political will, there is no way for our prosecutorial services to cooperate. If the perpetrators are in Serbia and the victims are in Kosovo, or vice versa, then without assistance from the prosecutors, the situation becomes unresolveable.”

According to Ristic, many have lost faith in the Special Prosecution Office of the Kosovo Specialist Chambers. The court was established in December 2015 to investigate and try crimes committed on the territory of Kosovo during and directly after the war that were outlined in a report published by the Council of Europe and primarily involve members of the Kosovo Liberation Army. 

However, prosecutors in The Hague have taken almost five years to produce no indictments, Ristic pointed out. “This has gone on too long,” she said. “The court has been working on this for five years, but investigations have been going on for about a decade. Bureaucracy is a big problem here.”

However, Ristic expressed hope that there would be progress over the next few months, applauding the efforts of Chief Prosecutor Jack Smith, who took over from David Schwendiman in May 2018. “We saw a few months ago that the prosecution had brought new allegations and charges, and indictments have been handed in,” said Ristic. “These indictments have to be confirmed within six months, but by summer we should have the first indictments in our hands.”

Institutions in Kosovo and Serbia will soon face decisions about what steps they need to take to facilitate the effective operation of the Special Court, said Ristic, noting that there are still a number of questions that are yet to be answered. “How will the people be arrested? How will institutions cooperate? These are sensitive matters that we have to start thinking about now,” she said.

Kosovo prosecution struggling with case backlog

Kosovo’s domestic prosecution service has come under scrutiny concerning its lack of progress pursuing war crimes cases in the last two years. Chief Prosecutor Drita Hajdari responded to this criticism, drawing attention to the significant backlog of cases that were handed to the Kosovo Prosecution after the EULEX Rule of Law Mission in Kosovo transferred competence for processing these cases in June 2018. 

“We inherited about 1,000 cases from EULEX, and we cannot process them all at once,” said Hajdari to BIRN. “We have developed a plan to address them, prioritising those for which we have reliable evidence, and we are focused on cases that involve a chain of command.”

Hajdari said that the Kosovo prosecution had also prioritised dealing with cases involving rape and sexual violence during the war, but called on citizens to have patience given the complexity of the cases.

“I made the decision to look into these cases and we have been successful in identifying some of the perpetrators. Please be patient, we have been dealing with these for only two years, we cannot be blamed for this,” said Hajdari. “We were not at all competent before this time, for all these years, we haven’t been involved. As a prosecutor, I am not at all happy with this delayed justice.”

The prosecutor criticised the decisions of international bodies that oversaw the prosecutorial process in Kosovo prior to the domestic prosecution services, noting that her office was left unprepared after not being trusted with investigative competence from the beginning.

“For many years, local staff did not have the competency to address these cases. This competency was taken away from us because it was believed that we would not try cases involving Albanian perpetrators and that we would accuse Serbs without proper basis,” she said. “People put blame on the local prosecution and as a result, along came the Special Court.”

According to Hajdari, there are several procedures currently underway and indictments have been issued for a number of suspected war criminals, however, international cooperation is now fundamental to the success of the prosecution.

“We have sent a number of international requests for extradition,” Hajdari said. “Those people are on Interpol lists, so we hope that whenever they are caught in any country, they will be brought to us.”

The chief prosecutor emphasized that assistance from both international organisations like Interpol and law enforcement bodies of neighbouring countries where perpetrators have taken refuge is crucial. 

“The problem is that most perpetrators are in Serbia but the witnesses are in Kosovo,” she said. “We need international cooperation, and this should be the focus of the dialogue, not amnesty.”