New Kosovo war crimes court ‘doomed’, experts warn

The Assembly speaker’s push to create an internationally backed tribunal on Serbian war crimes that would prove Serbia guilty of genocide is a non-starter with questionable motives, civil society experts and political opposition concur.

As he walked through the exhibition of photographer Izedin Krasniqi at the Museum of Mitrovica – a harrowing documentation of the men, women and children forced to leave the town in northern Kosovo as refugees in 1998 and 1999 – the speaker of the Kosovo Assembly, Kadri Veseli, proclaimed that these photos were visual testimony to a genocide that had occurred in Kosovo.

“While the criminals that committed genocide and massacres in Kosovo are not being tried and are free in Serbia, we continue to recall the pain and open wounds,” he said on Saturday.

“We need to act and form the international tribunal and bring before justice all the Serbian criminals who committed genocide and inhuman crimes in Kosovo,” he added.

Speaker of the Assembly visits exhibition of Izedin Krasniqi. Photo: Facebook of Kadri Veseli.

Political opposition Vetevendosje have been the only party to speak out directly against Veseli’s proposal to set up a tribunal to further investigate crimes committed by Serbian forces during the war in Kosovo – an initiative he has pushed since April – stating that training Kosovo’s national justice system to try and punish war crimes is more important.

Key members of civil society have been even more critical. They have called Veseli’s attempt to classify acts during the Kosovo war as a genocide “designed to fail,” condemning what they call his “political opportunism” and even accusing him of doing “an injustice to victims of the war.”

Designed for ‘daily political consumption’

Veseli has launched a series of different initiatives in recent weeks, including a resolution acknowledging the existence of genocide in Kosovo that the assembly passed earlier this month, and a bill proposing criminalization of the denial or minimization of genocide.

His proposal to set up a tribunal has come under most fire, as crucial details as to how Veseli intends to set up an international criminal tribunal remain missing, according to Bekim Blakaj, director of the Humanitarian Law Center of Kosovo.

The grey area surrounding the question of genocide, which was never confirmed to have occurred by any domestic or international court relating to crimes in Kosovo, said Blakaj, has prompted accusations that Veseli has motives over and above achieving justice for victims of the independence war.

“This is more for domestic daily consumption, political consumption, [with] no effect beyond the borders of Kosovo and no legal effect at all,” Blakaj said.

Vetevendosje MP Albulena Haxhiu said that lack of genuine political will on the part of the Kosovo Government has directly led to impunity for war crimes in Kosovo.

“Precisely those politicians who have helped Serbia rehabilitate itself on the international scene are trying to appear as though they’re seeking international punishment for crimes,” said Haxhiu for Prishtina Insight. “Kosovo, as an independent country, must judge and punish war crimes itself.”

Illustration: Jete Dobranja/Trembelat.

Aidan Hehir, a reader of international relations at the University of Westminster in the UK, stated that given the legal impossibility of launching the tribunal, Veseli has no real intention of seeing his proposal come to fruition.

“While the draft proposal has some merit on paper, it is difficult not to see this as less about the pursuit of justice, and more about perpetuating a narrative that that bolsters the position of a particular elite within Kosovo,” Hehir said.

“Those proposing the resolution have demonstrated a willingness to use the fate of the many victims only as a weapon against Serbia or as a means to deflect attention away from their own misrule,” he added.

Creation of new tribunal ‘almost certain to fail’

Experts agree that there is zero possibility of Kosovo having the legal authority to carry out his proposal within the UN framework for establishing international criminal tribunals.

“I think the assembly speaker is aware that only the United Nations can have a mandate to create international tribunals,” said Blakaj.

The International Criminal Tribunal for the Former Yugoslavia, ICTY, was established as such in 1993.

“The idea proposed by Veseli to establish a special tribunal is doomed to fail; any international tribunal would require the consent of the UN Security Council, which is inconceivable given Russia’s stance,” Hehir said.

“It is impossible to believe that he and his advisors are not aware of this, and thus the proposal is clearly political theatrics.”

Two key questions remain unanswered concerning Veseli’s proposal, despite almost a month passing since he began to push the idea. According to Blakaj, who would be investigated, and what they would be investigated for, has never been made clear.

Veseli has also flipped between stating first that he intends to determine that the state of Serbia is responsible for the crime of genocide in Kosovo, and then proclaiming that his tribunal will target individual people involved in committing crimes.

“He refers not just to Serbia as a whole but also to individuals who used to represent Serbian institutions,” Blakaj noted.

“I have heard him on two or three occasions where he had messages for perpetrators in Serbia like, ‘We are coming,’ and, ‘We are going to arrest you.’ First, it’s insane to think he could possibly get to Belgrade and arrest perpetrators there. But it’s clear from this that he’s also thinking on an individual level.”

Veseli first expressed the intention to set up a court to investigate Serbian war crimes in Kosovo in February. However, since April, his intentions have changed. During speeches marking the 20th anniversaries of massacres that occurred in Kosovo in 1999, Veseli began to say that establishment of the crime of genocide, rather than war crimes, was the key aim.

Speaker of the Assembly lays a wreath during the 20th anniversary of the massacre in Poklek in April. Photo: Facebook of Kadri Veseli.

In international courts, few successful convictions of individuals for genocide have occurred. It is notoriously difficult to prove. The first was issued concerning the mass killings in Rwanda in 1994, and the second was for the killing of Bosniaks in Srebrenica in 1995, by the ICTY.

More recently, Nuon Chea and Khieu Samphan were convicted in November 2018 of committing genocide in Cambodia from 1975 to 1979.

Outside of the war crimes tribunal set up by the UN, attempts to prove that the Serbian state was responsible for genocide have had mixed results in the Balkans.

Both Bosnia and Herzegovina and Croatia initiated proceedings in front of the International Court of Justice, ICJ, claiming Serbia violated the Convention on the Prevention and Punishment of the Crime of Genocide, but only Bosnia was successful.

In 2007, the ICJ determined that Serbia had failed to prevent the genocide that occurred in Srebrenica in 1995.  

BIRN contacted the office of the speaker of the Assembly to inquire as to the location, funding, and proposed jurisdiction of the tribunal, but received no reply by the date of publication.

Genocide convictions take a long time

After being established in 1993, the ICTY took more than 1,000 witness testimonies and nine years before issuing its first conviction in 2001 for the crime of genocide against an individual, Radislav Krstic.

While the Humanitarian Law Center in Kosovo has collected evidence and witness testimonies from over 17,000 individuals during the Kosovo war – and while Blakaj believes that elements of the crime of genocide were present – he is not confident that genocide could be established even with the cooperation of the Humanitarian Law Center.

“No court or verdict has confirmed that genocide [occurred] in Kosovo, neither a domestic court, nor in Serbia or in the ICTY,” he said.

“I don’t know if they have any plans to engage us in this commission, but for me, it’s clear that even if they invite us, we would not be part of something that is designed to fail,” he added.

“We have documented almost every victim, and sometimes you have those elements [of the crime of genocide]; crimes were committed in a very planned, systematic way, it was an exact pattern of crimes – civilians were forced to leave villages, men were divided from women, they were killed, their bodies went missing, they were forced to leave Kosovo and leave their Kosovo identity behind. I don’t know if this can be enough, it’s very hard to document it all.”

Assembly not right place to deal with genocide

During an Assembly session debating Veseli’s tribunal proposal last Monday, Veseli proposed that a national commission made up of politicians and civil society gather evidence prior to the launch of the tribunal, but provided few details on the nature of the information that would be gathered.

Opposition MPs from Vetevendosje and the Democratic League of Kosovo, LDK, left the Assembly during the debate, in protest over MP Flora Brovina showing a falsified picture of a wartime rape in Kosovo to media during previous Assembly session. This has led to opposition parties and civil society demanding her resignation, and accusing her of using the suffering of victims for political gain.

“The genocidal crimes of Serbia cannot remain unpunished, but international courts are established only in clearly specified cases and cannot be initiated at our request,” said Haxhiu. “We believe that the Kosovo judiciary can be trained, this is even necessary, to judge and punish war crimes.”

Blakaj said the Assembly was not the right place to deal with the question of the existence of genocide in Kosovo.

“I don’t think that the Assembly is the correct or most professional body to conclude that genocide occurred,” Blakaj said. “The Assembly is not that body; it should be a court or an international commission.”

Illustration: Jete Dobranja/Trembelat.

Veton Surroi, a former politician and publicist, echoes this sentiment, also condemning Kosovo’s failure to address the issue of war crimes through viable platforms since the EU-led dialogue with Serbia started in Brussels.  

“Let’s not forget that in the 4,000 days that Kosovo and Serbia have been engaged in the dialogue, we have not spared even one day to discuss the issue of missing persons, sexual violence, or the responsibility of the state of Serbia at that time for the devastation that has been caused,” Surroi said.

While Veseli has pushed for a criminal tribunal to be included in any final agreement with Serbia on normalization of relations, the Kosovo negotiating team for the dialogue, which has included this proposal in its platform, is yet to be engaged in talks relating to the dialogue despite being formed almost five months ago.

Speculation has also arisen that the proposal is linked to Veseli’s rumoured invitation to testify before the Hague-based Kosovo Specialist Chambers of Specialist Prosecution Office, or even aimed at deflecting his own allegations of fraud.

“I don’t know if this is in relation to the rumours that he was invited by the Specialist Chambers to give testimony or not, but I can’t see any other reason,” said Blakaj. “Maybe he’s trying to postpone the work of the Specialist Chambers, but these are just rumours.”

No sign of international support

Veseli has also denied claims that the international community would not back the establishment of a tribunal.

“If they were against it, don’t you think they would have released a statement?” he asked last Thursday in an interview on BIRN’s televised program, Jeta ne Kosove.

“I have the support and the international court will happen; leave skepticism aside. It will be supported by the international community and locals.”

Kadri Veseli on Jeta ne Kosove in May. Photo: BIRN.

This claim appears questionable. Apart from the British embassy, which has criticized the idea as opportunistic, the international community in Kosovo has largely ignored Veseli’s initiative.

On Friday, British Ambassador Ruari O’Connell spoke out against it. “Kosovo cannot form an international tribunal. Kosovo has its own courts who should try war crimes,” he said on Facebook.

Samuel Paice, from the British embassy, told BIRN: “It is important that allegations of serious crime during the conflict are investigated by appropriate institutions, in a way that above all prioritizes justice and support for survivors, victims and their families,” he said.

“This should be done according to the rule of law, and not be driven by narrow political opportunism,” he added.

BIRN contacted the US, French and German embassies for their own reactions, but none replied by the time of publication.

According to Blakaj, Veseli has been pushing for parliaments in Europe to issue resolutions in support of declaring acts committed during the Kosovo war as genocide.

He fears this could be counter-productive. “This could have negative connotations for Kosovo,” he warned.

“If those countries do not initiate any kind of debate in their parliaments, or, even worse, they initiate it and then it’s not passed by those parliaments, Serbia will use this to say that no crimes were committed.”

Improving Kosovo’s domestic war crimes court record

“There are many cases of murder, rape, false imprisonment and ethnic cleansing allegedly perpetrated by Serbian forces against Kosovo Albanians that have yet to be adequately pursued through the courts,” said Hehir. “That something needs to be done to redress the injustice is not in doubt.”

Blakaj says increasing the capacities of the war crimes department within the Kosovo Special Prosecutor’s Office would be the most effective way to continue the pursuit of justice.

“I don’t see another way of bolstering the processes for war crimes trials. How would they do it? There is no real chance to have another UN court,” said Blakaj. “They have closed the doors of the ICTY, why would they have another tribunal?”

According to Haxhiu, there are a number of domestics solutions that the Government can take to facilitate the investigation and prosecution of individuals for war crimes, starting with legislative reform.

“We must vote the proposal for amending and supplementing the Criminal Procedure Code as soon as possible, in order to enable trial in the absence of war criminals,” said Haxhiu.

Haxhiu also proposed the establishment of an Institute for War Crimes Research through the Ministry of Justice, increasing capacities for a specialized war crimes prosecution office, and specialized units within the Kosovo Police and the Kosovo Forensics Agency as methods of improving Kosovo’s track record tackling war crimes.

Since the prosecutorial branch of the EULEX Rule of Law Mission in Kosovo closed in 2018, all pending war crimes cases have been transferred to the Kosovo prosecution, leading to a growth in the backlog of cases.

Lack of exchanges of evidence, refusal to cooperate with extradition requests for indictees and failures in judicial cooperation between Serbia and Kosovo continue to hamper the progress of the domestic war crimes court in Kosovo, Blakaj noted.

According to the Kosovo prosecution, more than 900 war crimes cases are waiting to be processed in Kosovo.

Despite that, Blakaj maintains that the Kosovo courts remain the most realistic option. “The problem is they cannot initiate a case if they don’t have suspected persons in custody,” he said. “So the only way to go faster is cooperation [with Serbia]. Otherwise, they would need to issue warrants and wait ages to have someone arrested outside of Serbia. That is our impression – only cooperation can help.”


29 May 2019 - 16:20

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