Critics Take Aim at New Kosovo War Court

The old Europol building in The Hague will host the new Kosovo tribunal. Photo: Europol.

Last week marked the first anniversary of the passing of constitutional amendments, after a heated debate in the Kosovo parliament, paving the way for the establishment of the controversial special court in The Hague.

The court will deal with allegations of crimes committed by Kosovo Liberation Army, KLA fighters against Kosovo Serb civilians and alleged collaborators with Yugoslav President Slobodan Milosevic’s regime during and right after the war in Kosovo in 1998-99.

One the most significant responsibilities of the court will be to shed light on claims made in a report by EU rapporteur Dick Marty that was adopted by the Council of Europe in January 2011.

Marty’s report accused the KLA leadership including current Kosovo President Hashim Thaci of involvement in “organ trafficking, abductions, and mistreatment of detainees” during the war.

The special court has now been assured funding and soon will become operational. On June 14 this year, the Council of the European Union approved a budget of over 29 million Euros for the so-called ‘specialist chambers’ and the specialist prosecutor’s office.

In a matter of weeks, if not days, it is expected that the first indictments will become public and the court will finally become operational.

But despite this, some of its critics remain sceptical about whether it can really deliver the justice it promises.

A ‘mono-ethnic’ court?

Ilir Deda. Photo: Media Centre.

One of the main arguments made by the opponents of the special court is that it will solely deal with alleged crimes committed by KLA; they describe it as a ‘mono-ethnic’ court that will only put Kosovo Albanians on trial.

Ilir Deda, a former MP with the opposition Vetevendosje party, now an independent lawmaker, compares the court to the Nuremberg trials after World War II, when a series of military tribunals were organised by Allied forces to prosecute Germans for Nazi crimes.

“A mono-ethnic court established only for Kosovo disregards the context of the wars in the former Yugoslavia and Kosovo,” Deda told BIRN.

He said Kosovo was setting a precedent by agreeing to establish an international court – something unique in the former Yugoslavia.

“War crimes committed in Kosovo should have been dealt with the ICTY [International Criminal Tribunal for the Former Yugoslavia],” said Deda, arguing that it was “unjust” to set up a court to try Albanians only.

Paradoxically, the Democratic Party of Kosovo, PDK, a political party established by the leadership of the KLA, which was headed by Thaci, has been the biggest domestic supporter of the special court.

The PDK has argued that the new court is a good opportunity to once more affirm the ‘cleanness’ of the KLA’s liberation war and improve the international image of Kosovo.

Deda insisted however that that such an argument is “nonsense”.

“Such a notion of ‘clean wars’ doesn’t exist. There are just or unjust wars, and our war was just and for freedom,” he said.

For Nora Ahmetaj, a researcher at the Centre for Research, Documentation and Publication NGO in Pristina, there has been a lack of debate in Kosovo about individuals who abused their powers during the conflict.

“For this reason there is confusion; as in many other countries around the world, the line that divides the criminal/terrorist from the patriot is very thin,” Ahmetaj told BIRN.

Despite the fact that a year has passed since parliament approved the establishment of the special court, continued wrangling about the issue has kept the political spectrum in Kosovo deeply polarised.

While the parliamentary vote ‘legitimised’ the establishment of the court, it remains unpopular among the opposition and voices are still being raised against its mandate, as well as complaints about the pressure exerted on MPs during the voting process.

International pressure

Hashim Thaci. Photo: BETA.

When the constitutional amendments were passed in August last year, it was only at the second attempt.

A previous vote a month earlier failed to get enough support from MPs.

But a month was sufficient to get seven MPs to change their initial stance against the court and vote in favour of its establishment, although without explaining their reasoning for changing their minds.

Many opposition figures believe this was a result of direct interference by the international community, which exerted pressure on the PDK leadership to convince its deputies in parliament to change their stances; an intervention which critics describe as contrary to democratic values.

“Our deputies, without thinking independently, and based on the demands of the political parties, voted to submit to the pressure of the international community,” said Ahmetaj.

Nevertheless, public statements from key political figures in Kosovo have been in line with the country’s main international partners, the US and the European Union.

“The special court is an international obligation,” Atifete Jahjaga, then president of Kosovo, said months before the court got its parliamentary approval.

This claim was often reiterated, with key political figures repeatedly highlighting the crucial role that Western powers played in gaining Kosovo’s independence and the necessity of maintaining amicable ties with the international community because Kosovo’s Euro-Atlantic integration is its main national interest.

Indeed, Kosovo’s history dealing with war crimes has always been marked with international footprints.

Since the end of the war in June 1999, war crimes cases in Kosovo have been dealt with by international bodies because the Kosovo judicial system was often said not to be ‘capable’ enough.

The UN Interim Mission in Kosovo, UNMIK was in charge of war crimes cases from 1999 onwards, before transferring the responsibility to the EU rule-of-law mission EULEX in 2008.

However, broadly speaking, both UNMIK and EULEX, despite their efforts, have proved incapable of or unwilling to pursue many war crimes allegations effectively over these years, it has been claimed.

“Unfortunately, neither UNMIK nor EULEX have been efficient in judging cases of a sensitive nature,” said Ahmetaj.

EULEX’s witness protection programme appeared to have serious problems, with witnesses reported to have been intimidated, as well as other incidents such as the suicide in suspicious circumstances in Germany of Agim Zogaj, a key witness in the case against 10 former KLA fighters including former commander turned politician Fatmir Limaj, the current leader of opposition party Nisma.

That meant establishing a court outside Kosovo looked to be the only way to deal with the longstanding allegations of war crimes by KLA fighters. It has already been reported that protected witnesses who will testify at the special court were taken out of Kosovo months ago to ensure they are not intimidated.

Deda admits the shortcomings of the witness protection programme, but says the solution is not to establish a court in the Netherlands.

“Instead of empowering our local judiciary, we are transferring sovereignty to an international body,” he said.

He said that witnesses could be kept abroad for their protection but post-war crimes should have been handled by a Pristina-based court with a mixture of EULEX and Kosovo judges.

Ahmetaj meanwhile is sceptical about how successful the new court will be in securing convictions considering the international community’s track record with prosecutions in Kosovo.

“Experience with trials for war crimes and political eliminations in Kosovo dealt with by UNMIK and EULEX before, during and after the armed conflict gives indications that we should not have high expectations of this court,” she cautioned.

It is expected that very soon, the new special court will publicly indict former KLA commanders alleged to have committed war crimes.

During the last 12 months since the court was approved, political life in Kosovo has been dominated by other issues that captured domestic attention – but as soon as the first indictments become public, stronger reactions might erupt yet again.