Missing persons should be the ultimate issue in the Kosovo-Serbia dialogue

As we mark the Day of Missing Persons we have to ask ourselves: has the Kosovo side been determined to solve this issue for the past 18 years?

In August 2013, in the capacity of the Executive Director of the Centre for Research, Documentation, and Publication, I was asked by a member of the Association of Missing Persons to write a letter to Ms. Ulrike Lunacek, Vice President of the European Parliament and Member of the Delegation for Relations with Bosnia and Herzegovina, to ask her to exercise her authority and push harder for the issue of missing persons in the Belgrade-Prishtina dialogue.

In an effort to assist the victims of conflict in Kosovo and to promote peace and stability in Kosovo and the region, I was very disturbed that the issue of missing persons, as one of the most sensitive topics, was not set as a priority during the negotiations, even though its importance was mentioned by all stakeholders as a way forward in the process of dealing with the past in the Western Balkans. After seeing family members feel hopeless about learning the fates of their loved ones, I was perplexed to speak on behalf of the voiceless.

For 18 years the families of the missing have been seeking the truth, and very often the state officials tells them openly that there is nothing more they can do. The Commission of Missing Persons is pushing this matter forward with the International Committee of the Red Cross, ICRC, mediation, but fewer and fewer bodies are found as years pass. The agency is within the Prime Minister’s Office, yet they seems too weak to pursue the matter. And this seems to go hand-in-hand with the Government itself.

If the Kosovo delegation cannot push harder because they are dealing with a state that holds back information and is not very cooperative, there is always another way. There are ways to put pressure on the international community, the EU in particular, and to call on different instruments that the EU has set up itself to facilitate reconciliation in the Western Balkans.

One of such instruments is the EU enlargement strategy on enhancing regional cooperation and reconciliation in the Western Balkans, which obliged the states in the Western Balkans to enhance cooperation and reconciliation in a region that suffered major conflicts in the recent past. Regional cooperation and good neighborhood relations are essential elements of the Stabilization and Association process and, as such, were closely monitored by the Commission at all stages of the accession process. The newly adopted EU policy framework on transitional justice provides a comprehensive framework and should be used as a benchmark for assessing implementation on the ground.

To date, I am deeply concerned that the EU is playing twofold politics: on one hand it urges Western Balkan countries to deal with the past as part of an EU Enlargement strategy on enhancing regional cooperation, while on the other hand, it does not make sufficient efforts to persuade both Serbian and Kosovo governments to provide information about the fates of more than 1,600 people still missing in Kosovo.

It is absolutely necessary to solve the issue of missing persons through the process of normalization of relations between Kosovo and Serbia, so that the situation on the ground can start to resemble some form of normality. In case this does not happen, the whole process of negotiations and reconciliation risks to break down with no results.

The Right to Know, as the first pillar of transitional justice, is guaranteed by the International Covenant on Civil and Political Rights, ICCPR, and its regional counterparts such as the European Convention on Human Rights and Fundamental Freedoms, ECHR. The former European negotiators preferred to qualify the issue of missing persons as humanitarian rather than political, insisting that the topic would risk the dialogue and lead to failure of the process. As a consequence it was postponed permanently.

However, it is obvious that Kosovo cannot force Serbia to open the archives and demand  accountability. Therefore, the matter must be addressed through negotiations. The ICRC has done a tremendous job up to now. Although the ICRC is an impartial, neutral and independent organization whose mission is exclusively humanitarian, one should not forget that there is nothing new about humanitarian issues being at the forefront of national and international politics. And the problem does not rest only on Serbia for not opening archives and cooperating.

Some responsibility is to be taken by our side too. The Kosovo government and its institutions insists on the lack of information about Kosovo Liberation Army, KLA, individuals who kidnapped and killed civilians of Serb and Roma communities. If not the institutions, some individuals within these institutions must know something.

Let’s not forget that the Fourth Geneva Convention in Article 32 requires that parties in a conflict (KLA was a party in the conflict) facilitate inquiries about individuals missing as a result of hostilities. An additional protocol to the Geneva Conventions of 1977 “requires each party to the conflict to search for persons who have been reported missing by the adverse party.” These provisions are complementary to the universal guarantees anchored in human rights, and the Constitution of the Republic of Kosovo lists war crimes as grave violations of the Geneva Conventions.

No one denies the fact that Serbia was a consolidated state with a great political and military power, and as such, committed crimes through an organized and top-down command chain.

But let’s ask ourselves, has the Kosovo side really been determined to solve this matter all these years? Because negotiations require that both parties cooperate, and not only in seeking the culprit. I see how our institutions have for years dragged this issue along in the absence of political will to shed light on the fates of more than 2,500 Serbs and Roma civilians killed and that went missing during the Kosovo War. As a result, now we will have a specialist chamber that will extensively deal with civilians who were taken hostage, tortured and killed by the KLA.

And let’s emphasize again, no one is seeking to equate crimes –  crimes cannot be equated. The truth of documented evidence, namely forensics, means that the number of Albanian civilian casualties and disappearances was much greater than that of other communities in Kosovo. But we have to face this ultimate fact –  in war, it is legal to fight, and it is legal to kill, but only among those equally armed and uniformed.

When we are talking about missing people we’re talking about the missing civilians who should have been protected by those in uniforms. By those who for a moment had power, but misused it.

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