Hindrance to trials for war crimes committed in Kosovo

The Office of the War Crimes Prosecutor (OWCP) has not raised a single indictment for war crimes committed in Kosovo in nearly three years. During this period, the Humanitarian Law Center (HLC) has filed nine criminal complaints for the crimes committed in Peć, Mala Kruša, Savine vode, Vučitrn, Goden, Kraljani, Landovica, Poklek and Rezale. To date, no investigations have been initiated against those charged.

In reply to the HLC’s urgings with regard to the criminal complaints filed, the OWCP has responded that it is in practice prevented from conducting investigations. The EULEX mission, which was the facilitating entity in the past, has not had since May 2014 the mandate to begin new investigations, as that jurisdiction was transferred to local prosecutors. The OWCP has indicated that the position of the Kosovo Ministry of Justice is such that the Republic of Serbia does not have territorial jurisdiction to investigate crimes which are assumed to have been committed in the territory of Kosovo.

It was this position that the OWCP adopted in relation to the criminal complaint filed by the HLC against Božidar Delić, the former Commander of the 549th Motorized Brigade of the Armed Forces of Yugoslavia, for war crimes committed in the village of Landovica (municipality Prizren) on March 26th and 27th 1999, when 18 civilians were murdered.

The HLC first filed an objection about the work of the OWCP, in which it was pointed out that the OWCP had failed to take all available measures to carry out an adequate and effective investigation, among other things because it failed to establish cooperation with the local prosecutors to whom the jurisdiction was transferred from EULEX, or otherwise ensure the conducting of investigations. The decision of the Acting Head of the OWCP dismissed the HLC’s objection in its entirety, on the grounds that cooperation with the local prosecutor’s office in Kosovo is impossible because Serbia does not recognize Kosovo and its institutions.

Because of that, the HLC filed a constitutional complaint in January 2016 alleging that the OWCP had failed to conduct an adequate and effective investigation into the Landovica Case. The HLC pointed out that the Republic of Serbia, on the one hand, has the right to decide not to recognize Kosovo as an independent state. However, such a political decision does not absolve Serbia from its legal obligation to prosecute those responsible for war crimes that are under its jurisdiction. In particular, the Republic of Serbia, and the OWCP as one of its bodies, are obliged to find an appropriate way to carry out investigations in this case.

The practice of the European Court of Human Rights as well as of the Constitutional Court of Serbia requires the state to conduct an effective investigation in cases of violation of the right to life. This obligation is the obligation of means, not of results; which means that the state must take all reasonable measures at its disposal in order to prosecute those responsible.

The impression is that the Republic of Serbia and its judicial authorities treat this political obstacle as a convenient excuse, above all for their failure to prosecute members of the army and police, which already they only rarely and reluctantly do. The question of the vacuum resulting from the gradual withdrawal of the EULEX mission in Kosovo has to be addressed as a priority in the framework of the Brussels negotiations between Serbia and Kosovo. Such an initiative should be taken by Serbia, as a country that has an international legal obligation, but also, supposedly, an interest in punishing those responsible for these most serious crimes.

Ms. Milica Kostić, the HLC Legal Program Director