To harness the court’s capacity for positive societal impact, it is key that society has realistic understanding and expectations about the court’s purpose and possibilities.
Consisting of two distinct institutions (the Kosovo Specialist Chambers and Specialist Prosecutor’s Office), the Kosovo Specialist Court was established by legislation and a constitutional amendment passed by Kosovo’s Assembly. It operates inside Kosovo’s justice system but is located in The Hague, staffed by internationals, and is funded by the EU. It has no straightforward precedents in the Western Balkans or further abroad. The intention of the court is to adjudicate war crimes cases against individuals associated with the mainly ethnic Albanian Kosovo Liberation Army, KLA, between 1998-2000.
The establishment of this court should be understood in light of the broader context of dealing with the past in Kosovo, in which several other national and international attempts to address war crimes have fallen short of expectations. While its work may provide a measure of justice for victims and a direct form of accountability for perpetrators, the Court’s impact could be severely hindered by the limited public understanding of its purpose and scope. Despite much media coverage, the Kosovo Specialist Court remains widely misunderstood, by both opinion leaders and the general public.
Spirited debates surrounded the Court’s creation. The government insisted that Kosovo must meet obligations to its international partners, while the opposition argued that the Court will be unfair to the Albanian majority, as only individuals associated with the KLA are likely to be persecuted, and thus undermine Kosovo’s international reputation. There are hence a multitude of expectations surrounding the Court and what it will or will not achieve. These dynamics should also be understood in the wider context of the unresolved and conflict-related inter-ethnic tensions in Kosovo. It is therefore not surprising that expectations regarding the Court’s purpose, mandate and objective are varied and conflicting.
These misunderstandings may contribute to undermining the Court’s potential positive societal impact, exert a destabilizing effect on Kosovo and disappoint the unrealistic expectations of those who are supposed to benefit from the process.
With that in mind, Integra, the Center for Peace and Tolerance, CPT, PAX and Impunity Watch conducted a nationwide poll and focus groups both with Kosovo Albanians and Serbs earlier this year to better understand public opinion on the Court, and found widespread misunderstanding of the Court’s purpose and mandate. These finding will be published in an upcoming report, which aims to promote accurate understanding and debate regarding the Court, mitigate the challenges facing the Court, and above all, enhancing the Court’s potential for positive societal impact.
In anticipation of this report we have highlighted four of the main myths surrounding the Specialist Court, which were prevalent among survey participants from both communities and respond to the main misunderstandings surrounding the Court.
Myth 1: The Kosovo Specialist Court will prosecute people for corruption and state capture
Polls show that 35.4 per cent of ethnic Albanians and 18.9 per cent of ethnic Serbs believe the Kosovo Specialist Court will prosecute crimes related to corruption and state capture. In the media, there has been considerable discussion of how the Court will indict officials that have abused state resources or benefitted personally from corrupt actions.
Fact: The mandate of the Kosovo Specialist Court only covers crimes against humanity and war crimes committed in the period 1998-2000 relating to the 2011 report written by Swiss Senator Dick Marty for the Parliamentary Assembly of the Council of Europe.
“Crimes against humanity” means any act such as murder, extermination, enslavement, deportation, imprisonment, torture, rape, sexual slavery, and enforced disappearance, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.
“War crimes” means grave breaches of the Geneva Conventions and other laws and customs applicable in armed conflict, including killing, torture or inhuman treatment, destruction of property, hostage-taking, and deportation. As such, no one will be indicted for corruption, economic crimes, abuse of state resources, or other forms of state capture; just as important, no one will be indicted for any crimes committed after 2000.
Myth 2: The Kosovo Specialist Court will rule on whether the KLA was a terrorist organization
About one-third (33.9 per cent) of ethnic Serbs and one-fifth (17.8 per cent) of ethnic Albanians in Kosovo believe the Kosovo Specialist Court will prosecute the KLA as an organization, while 29.6 per cent of ethnic Serbs and 24.4 per cent of ethnic Albanians believe the Court will prosecute both individual perpetrators and the KLA as an organization.
Fact: The Kosovo Specialist Court is mandated only to ensure due process for individual perpetrators, mainly former KLA members alleged to have committed crimes against humanity and war crimes. It will not decide if the KLA’s campaign was just, legitimate, or legal, and it will not rule on whether or not KLA fighters were terrorists or liberators.
Myth 3: The Kosovo Specialist Court will prosecute alleged Yugoslav and Serbian war criminals
Nearly half of ethnic Albanians (49.6 per cent) and ethnic Serbs (44.6 per cent), respectively, believe the Kosovo Specialist Court’s mandate includes all those who committed crimes against humanity and war crimes in the period 1998-2000, regardless of their ethnicity. Moreover, 32.8 per cent of ethnic Albanians and 15 per cent of ethnic Serbs believe the Court is specifically mandated to prosecute crimes against humanity and war crimes committed by Yugoslav and Serbian state actors.
Fact: In theory, the Kosovo Specialist Court is able to indict individuals of any ethnic background for crimes against humanity and war crimes committed during the period 1998-2000. In practice, since the Court’s mandate covers only crimes that were raised in the 2011 Marty report on the KLA, it is extremely unlikely that alleged war criminals who fought for Yugoslav or Serbian forces will be indicted.
Myth 4: The Specialist Court will prosecute all alleged KLA crimes
Only 3 per cent of ethnic Serbs in the focus groups believed themselves to be familiar with the mandate of the Kosovo Specialist Court. Many however realized that they also had misconceptions once they were presented with relevant facts. Almost all such respondents, for example, believed that the mandate of the Court was to prosecute all alleged KLA crimes. Most participants mentioned individual crimes against the minority population taking place after June 1999 and some grave crimes such as Gorazdevac in 2003, and the case of the Stolic family in 2003, with the expectation that the Court will investigate and prosecute those responsible.
Fact: In August 2015, Kosovo passed legislation that created a Specialist Prosecutor’s Office, SPO, to investigate and prosecute grave trans-boundary and international crimes which occurred during and in the aftermath of the conflict in Kosovo in the period 1998-2000. The law establishing the Kosovo Specialist Court mandates it to investigate and prosecute only those war crimes and crimes against humanity identified in the Marty report—all other cases of crimes against the civilian population that occurred in the aftermath of the 1998-99 conflict will be dealt with exclusively by the Kosovo judiciary and EULEX.
To harness the court’s capacity for positive societal impact, it is key that society has realistic understanding and expectations about the court’s purpose and possibilities. Myths like these divert the public dialogue and debate, thus becoming an obstacle to meaningful engagement with the Court’s work and its results. It is therefore important that citizens have accurate information and that myths like these are dispelled in preparation for the court’s first indictments.
Kosovo authorities, the international community and the Kosovo Specialist Court itself should thus cooperate to deliver a comprehensive and inclusive programme of public information and outreach that tackles these myths and other misinformation about the Court. If efforts to do so fall short, there is a risk that inter-community and intra-community tensions might be exacerbated, which in turn could hamper stability in Kosovo and endanger the EU-facilitated dialogue between Kosovo and Serbia.
Michael Warren, PAX ; Kushtrim Koliqi, Integra ; Nenad Maksimović, CPT ; Marlies Stappers, IW.
This opinion piece was also published in Koha Ditore on Friday, September 8th.