In 2015, the Kosovar Parliament passed a law to establish a Special Court in The Hague in order to investigate war crimes perpetrated in Kosovo between January 1998 and December 2000. As with every agreement implemented in Pristina, international pressure and harsh promises to streamline integration in global institutions paved the way for this regulation that could lead to the imprisonment of the country’s leading politicians, many of whom are former army commanders belonging to the Kosovo Liberation Army (UÇK). Since then, the unstable government coalition has tried to revoke this legal entity and the chief prosecutor of the Court, David Schwendiman, has unexpectedly stepped down. These are the first setbacks of a controversial entity that has begun its investigations but has not yet presented imputations. Its goal is to make Kosovo reconcile with the truth of the post-war era, but it faces the same obstacles that already caused the failure of the international community in Kosovo, which last February celebrated its 10th anniversary of independence. This independence was controversial, as everything is here from the beginning, as now is also the Special Court.
In total, 13,581 people died during the war in Kosovo and the post-war period. Of these, 10,367 were civilians: 8,702 Albanians, 1,203 Serbs, and 462 Roma and other minorities. The data of the Humanitarian Law Center (HLC), which strives to shed light on war crimes and the drama of missing persons, are compelling. They reflect the dynamics of the war: 679 Serbian civilians died or went missing after the end of the war in June 1999; 56.4% of the total. Thus, following Dick Marty’s investigations for the Council of Europe and the subsequent EU report led by prosecutor John Clint Williamson, the Special Court will investigate crimes against humanity perpetrated during the war (1998-1999) and, especially, during the post-war period – 18 months of events that could not be looked at before because the now-extinct International Criminal Tribunal for the Former Yugoslavia (ICTY) lacked jurisdiction.
"I understand that the people who fought for liberation also fought for justice. The international presence in Kosovo has been massive: first, it was UNMIK, then EULEX and now we also have a Special Court. They were not effective, and now I am convinced that this Court will not be either. If the UN and the EU have failed, why should we expect this Court to succeed?” asks Rexhep Selimi, co-founder of the UÇK. Bekim Blakaj, director of the Kosovan branch of the HLC, is not optimistic either: “Twenty years have passed since the war and the evidence may have been destroyed. These are very difficult cases to investigate and I do not expect progress to be made”. “There are hundreds of investigations in which you cannot find the person or evidence. In 18 years many things may have happened”, agrees Danilo Ceccarelli, renowned EULEX prosecutor.
The scarce achievements of the international community – with 38 verdicts of EULEX judges and prosecutors and two UÇK members convicted by the ICTY – are mainly caused by failures in the witness protection system. The acquittals of ex-commanders Ramush Haradinaj, current Prime Minister, and Fatmir Limaj, leader of NISMA, speak to this failure: the witnesses either changed their statements out of fear of reprisals or died in strange circumstances or were openly murdered. Former ICTY prosecutor Carla Del Ponte related in a book the frustration produced by these cases. Now, with possible evidence pointing to the president and former leader of the UÇK political arm Hashim Thaçi, it will be difficult to find witnesses. In a country of 1.8 million inhabitants that does not allow anonymity, fear of retaliation is a powerful deterrent.
Selimi, one of the top three public figures of the UÇK, attacks the Williamson report, one of the triggers of the Special Court: “The war is dirty, but you cannot clean it up by making it even dirtier. I have read the Williamson report, and it is unfair. No evidence is presented. It says there was an ethnic cleansing of Serbs, but not of Albanians. It also says that these alleged attacks were not measures taken by individuals, but organized by the UÇK. Therefore, it does not attack me as an individual but my country. Accusations of war crimes must come with names and surnames. My country is not a criminal State nor did it lead an ethnic cleansing; my country suffered one”.
As Williamson acknowledged, the crimes during the war were judged by the ICTY, and most of the perpetrators were Serbs, while in the post-war period, for which the ICTY and EULEX lacked jurisdiction, there was an ethnic cleansing of Serbs and collaborative minorities organized by important UÇK members. After more than two years of investigation, in 2014, Williamson corroborated Marty’s allegations and, in addition, claimed to have evidence to impute some UÇK hawks. According to both reports, this evidence also lead to Albania, where the UÇK hid, prepared ambushes and had detention camps. Therefore, the Special Court will investigate crimes committed or started in Kosovo and added a provision, the 14th, which foresees the cases of "physical mutilation" or organ removal. "There are 418 disappeared Serbs and it is possible that they were transported to Albania. These were allegations, but they could not be proved. The Kosovo institutions have to work on it. You cannot go after the Serbian authorities only. Because, obviously, Serbia is not responsible for those who disappeared", says Blakaj.
The Special Court, in accordance with the Constitution, is part of the Kosovar justice system although it is independent. Its members, endowed with immunity, will be able to use evidence from other courts and cases and, like the extinct ICTY, its targets are the big shots of the conflict, those that are impossible to judge in Kosovo due to security concerns. Secondary figures, at least for cases that occurred until June 1999, will be judged by local judges and prosecutors trained by EULEX, which in June will finish its mission and transfer 900 documents on war crimes and 2,000 on missing persons. The problem, as the EU points out, is the low number of prosecutors, the lack of willingness to investigate, and the insufficient cooperation between Serbia and Kosovo. "Without it, there is no hope of obtaining results concerning the disappeared", warns Blakaj, who considers necessary all these courts that attempt to clarify the truth.
In Kosovo, there are still around 1,700 missing persons. It is a reality that hurts among the Kosovo Albanians. Despite this, the society does not want to bring up the past and prosecute the guerrillas who fought against Serbian oppression and brought independence. Thus, 76.4% of the population believe that this Special Court is unfair. It is the triumph of silence, another obstacle to clarifying the truth in a conflict in which the US championed the first NATO intervention without the approval of the UN Security Council. The intervention was so controversial that it shook the foundations of international law, as is frequently mentioned by Russia when explaining its later 'conquests' in Abkhazia and South Ossetia. So, what happened in Kosovo concerns the whole world. Especially because in the 18 months that followed the conflict, security depended on the international community – which, through UNMIK, governed the country until February 17, 2008, the day in which Kosovo proclaimed its independence. How everything was conceived, including the roles of those international actors who supported the UÇK, will be judged in the Special Court. No one trusts justice anymore in Kosovo, a legal swarm full of local and global obstacles that cloud the truth. This is the sad reality, no matter how hard the Special Court will try to revert it.
*Photo: Miguel Fernandez Ibanez