Interview for Koha Ditore: Nataša Kandić
The establishment of a Special Court for the crimes perpetrated by the members of the KLA is the US response to the failures of UNMIK and EULEX to create the necessary conditions for Kosovo’s judiciary to assume the responsibility for prosecuting the war crimes and ethnically or politically motivated murders perpetrated in the post-war period
Interview conducted by: Agron Bajrami
Kosovo’s Parliament has adopted constitutional amendments and laws to allow for the establishment of a special court to prosecute all cases warranted by the inquiries of the Special Investigative Team, based on the findings of OSCE Special Rapporteur Dick Marty. How would you characterize these developments? Why must Kosovo establish a special court, which would, in fact, operate as an international tribunal within Kosovo’s legal framework?
NK: In my personal opinion, the establishment of a special court to prosecute the crimes perpetrated by members of the KLA is the US response to the failures of UNMIK and EULEX to create the necessary conditions for Kosovo’s judiciary to assume the responsibility for trying the war crimes and ethnically or politically motivated murders perpetrated in the post-war period. I look at this decision within the context of the responsibility America has taken upon itself as regards Kosovo – to create a legal state, whose laws are being observed. I believe that the State Department has duly considered the opposition of Kosovo’s political public and parts of its civil society, including some local judges, to the rulings by international courts against high ranking KLA commanders, whether in relation to war crimes or corruption, and taken into account the prevalent fear of testifying in court against the accused members of the KLA among the witnesses – and, in particular, of the families of Albanian victims and ordinary people in general. One should keep in mind the fact that the Tribunal’s mandate was to prosecute human rights violations perpetrated during the war, while the Special Court is to deal with post-war murders perpetrated in connection with the armed conflict in Kosovo. The idea to have the Special Court operate under Kosovo’s laws is a very good solution – and a unique opportunity for Kosovo’s prosecutors, judges and lawyers in general, not just to learn from the international legal elite, but also to gain insight into all the documents and evidence that would otherwise be inaccessible. It’s a shame that the Hague Tribunal has chosen not to apply, at least partially, any of the laws of the former Yugoslavia, as that could have led to a more expedient transfer and implementation of legal expertise and international standards in post-Yugoslav countries at a national level.
I would therefore conclude that the move to establish a special court is not aimed against Kosovo, and that it has the potential to address all of the Tribunal’s flaws, as well as the problems plaguing Kosovo’s judicial practice. This impression was reinforced by the investigation undertaken by Clint Williamson, during which not a single piece of information was leaked to the public, not even the names of any of the accused; which serves to provide further assurances that the Special Court will be able to ensure the security of the witnesses.
How would you assess the situation with respect to the war crimes perpetrated in Kosovo? To what extent is justice for all the war crimes perpetrated there even attainable?
NK: It is thanks to the Hague Tribunal that the Albanian victims have now been legally acknowledged, and the facts established once and for all. The creation of a special court, no matter how strong the opposition in Kosovo, does strengthen criminal justice. However, ordinary people also need justice at a local level – they need to know who was responsible for some evil act in some small village; or, if they already know who is to blame, they need to see that person brought to justice. That’s what justice is to them. I would say that time is running out for justice, but it is still not too late.
There was much debate in Kosovo over why a special court was needed to prosecute just cases involving KLA members, while the crimes against ethnic Albanians were being prosecuted before the Serbian courts – or, in most cases, simply forgotten about. Taking into account the track record of the Serbian judiciary with respect to the crimes perpetrated against ethnic Albanians, do you believe that justice would be more efficient if the Special Court had the mandate to prosecute those cases as well?
NK: The Hague Tribunal has pretty much convicted the entire Serbian wartime leadership, so at least one dimension of justice has been served. Those convicted, apart from Slobodan Milošević, include the highest ranking military, police and civilian state officials. However, keeping in mind that the units of the Serbian MUP/VJ and their commanders were responsible for the deaths or disappearances of at least 8,000 Albanian civilians between January of 1998 and June of 1999, that those tried in Serbian courts were not the commanders, but rather the direct perpetrators (although Radoslav Mitrović, a police general, was indicted in the Suva Reka Case, although the first instance court found him not guilty), that there are too few trials, those few sometimes taking several years to complete, and that the Court of Appeals, by default, overturns all first instance guilty verdicts – there really is no room for optimism in terms of justice for the Albanian victims. In my opinion, the establishment of a special court to prosecute war crimes perpetrated by the members of the KLA raises another question – what should the international community do to stop Serbia from downplaying the crimes perpetrated by the Serbian MUP/VJ and protecting their generals, such as (Serbian Army Chief) Ljubiša Diković, Momir Stojanović (wartime head of the Security Department in Prishtina), Božidar Delić (commander of the 549th Brigade) and Goran Radosavljević Guri (wartime commander of the Operational Pursuit Groups in Kosovo)? The Humanitarian Law Center has uncovered evidence of a link between the operations of the 37th Motorized Brigade of the VJ in the municipality of Glogovac/Gllogoc, the murders and disappearances of Albanian villagers and the mass grave discovered in Rudnica near Raška, where the mortal remains of 52 ethnic Albanians from the villages of Rezala Staro Čikatovo, Donja Zabela and Gladno Selo were exhumed and identified towards the end of 2014. Instead of sacking Diković and launching an investigation against him, the Serbian President has given him protection and even filed a civil lawsuit against me personally for supposedly tarnishing his reputation. The fact that a general has chosen to prove his innocence in a civil lawsuit actually speaks volumes about the fear and panic he must be experiencing. At the first hearing in this lawsuit, it also became apparent that the presiding judge had been tasked with issuing “a certificate” that I was responsible for spreading lies and guilty of defamation, for the general then to use in order to prove his innocence with respect to the murder of villagers found in the mass grave in Rudnica. Let me remind you that Interpol issued a warrant this February for the arrest of General Momir Stojanović (currently serving as the head of Serbia’s Parliamentary Security Services Oversight Committee) over his involvement in war crimes against civilians in the municipality of Đakovica/Gjakove. He is still a free man in Serbia, while the War Crimes Chamber remains silent. Let me conclude: apart from a few NGOs, Serbia is no longer being pressured by anyone to prosecute war crimes. The European Commission no longer demands cooperation with the Hague Tribunal as part of the EU integration process in post-Yugoslav states, since there are no new indictments raised by the Tribunal, and no new requests for documents or information. The problem is that the EC has no new strategies for transitional justice in the Western Balkans – or, to phrase it differently, its policies do not include EU membership conditionality when it comes to facing the past and the rule of law. In my opinion, the EC should reinstate the policy of EU membership conditionality and give priority to war crimes trials and regional cooperation; which, in turn, should involve efforts to record all the names of the individual victims and the circumstances of their deaths or disappearances. This is the only way to achieve justice for all the victims, and only by keeping track of the responsibility of each side. Otherwise, we will be faced with the truly absurd situation of having, on the one hand, an ad hoc court tasked with bringing justice to the Serbian victims, while on the other, European and international support for the impunity of Serbian generals for the crimes perpetrated against Albanian victims.
Immediately following the war, the prevailing belief in the region was that the Hague Tribunal would be the instrument to prosecute war crimes. In your opinion, how effective has the Tribunal been?
NK: The Tribunal has managed to gather valuable evidence and establish facts that no national court ever could. It was a powerless court at first but, in time, it was able to secure the cooperation of all post-Yugoslav states. Over the past few years, the Tribunal’s various chambers have changed their standards, leading to the acquittals of certain generals during the appeals proceedings without any new facts having surfaced in the meantime. In the acquittals of Croatian general Gotovina and Serbian general Perišić, it was political reasons that prevailed. In the “Kosovo Six” case, the judges returned to their old standards and the final verdict did match the gravity of the crimes. But those acquittals will continue to mar the reputations of some judges in the Hague. In Haradinaj’s case, even though he was acquitted, mostly because the Prosecution were unable to prove the indictment, some crucial facts about crimes perpetrated against Serbs and their alleged collaborators did come to light, and were established as legal truths once and for all.
The majority of war crimes perpetrated in the former Yugoslavia were left for the local courts to prosecute. How much did this affect the overall effectiveness of justice for war crimes?
NK: The practice of national courts in the region has shown that the prosecutors were the weakest link in each of their respective legal systems. They have shown themselves to be just pawns of the governments, rather than independent state authorities. The judges were much better, but they had no power to change weak indictments. In so many words, the national courts failed the rule of law test – they were only prepared to try crimes perpetrated by the other side, which has in no way contributed to the rule of law. Recently, throughout the region, but in Serbia in particular, the respective OTPs have been making obvious attempts to pander to victims from their ethnic groups or states, despite the fact that their primary task is to indict their own nationals.
EULEX has been in charge of prosecuting war crimes in Kosovo over the past seven years. How successful has it been in your opinion?
NK: Unfortunately, the EU, just like UNMIK, has never equipped Kosovo’s institutions to resist political pressure. EULEX is a lazy mission, far removed from ordinary people. It is a huge embarrassment that a leading international prosecutor in Kosovo moved to Belgrade after the end of his term and became a consultant for some international organization. The choice of prosecutors and judges was always a weak link in EULEX’s mission. The stories about huge sums of money being paid for acquittals were never investigated. They were covered up.
For years now, the Humanitarian Law Center has been working on uncovering the war crimes perpetrated in Kosovo, but it has not been engaged at the same time in creating the necessary conditions for reconciliation between Kosovo and Serbia, or between the Albanians and the Serbs. For such a reconciliation to take place, how important is it to denounce all crimes equally?
NK: If it takes at least two years to complete a trial in a professional manner, than we have to resign ourselves to the fact that the courts simply do not have the capacity to bring all of the perpetrators to justice and punish them fairly. I believe that all the trials are important, even those denounced as politically motivated by the professional public, since the process of establishing facts before the courts follows a firm procedure devoid of politics, unlike verdicts against specific individuals. For reconciliation to take place, we need to know who the victims were, their names and the circumstances of their death, and we need to acknowledge all the other victims and their lives as being equally precious; but we also need to understand that it is one thing for a solder to die in the line of duty, but quite another for a victim of a war crime. For reconciliation to take place, it is important that we accept all the individual truths, instead of asking the mothers to change theirs, and to establish all the facts, leaving the interpretation to the historians and analysts. But facts established in court are not enough. We need all the facts, about all the victims, and the only way to get there is through a regional commission such as RECOM. There is political support for RECOM, in principle at least, but it needs to be more concrete, and all the work on establishing RECOM now needs to be done by the states. The Serbian Government did give its backing, and the Serbian Prime Minister has promised to engage personally to see RECOM established.
Would it be realistic to expect all of the perpetrators to be brought to justice?
NK: Time is running out and the witnesses are growing old. Some even have died. The trials need to be intensified, but one also needs to have realistic expectations – to have as many perpetrators as possible see their day in court. It is also important to establish the names of all the victims, to ensure that each of them is remembered.
(Published in Koha Ditore on August 9th, 2015)