Kosovo’s Framework for Dealing With the Past at a Turning Point: Civil society review of progress toward a National Strategy on Transitional Justice

Key points

–  The Inter-Ministerial Working Group on Dealing With the Past and Reconciliation (IMWG) was established to deal with gross violations of human rights and international humanitarian law during Kosovo’s war, mainly by developing a National Strategy on Transitional Justice.
–  The work of the IMWG was hampered by deficiencies related to leadership and management, political ownership, representation and participation of Kosovo’s minority communities, and engagement of the public, among others. Given these shortcomings, there is a high risk that the IMWG will fail to develop a National Strategy that has the credibility and legitimacy to advance societal transformation.
–  To produce a meaningful National Strategy, the Government of Kosovo must recommit politically to the IMWG process, build trust with representatives of civil society and minority communities, plan for inclusive national consultations, and connect the IMWG’s work to other processes relating to transitional justice in Kosovo, including a new Commission on Truth and Reconciliation.
–  Civil society must adopt a more strategic approach to transitional justice and strengthen its expertise around interaction with political processes, while the international community should provide more political support to the IMWG’s work, improve coordination on transitional justice, and integrate transitional justice as part of the European Union (EU) accession process.

1. Introduction

In June 2012, the Government of Kosovo (GOK) established the Inter-Ministerial Working Group on Dealing With the Past and Reconciliation (hereafter, IMWG) to “deal with gross human rights violations and serious violations of international humanitarian law in the past in Kosovo including the last war and the transition period1”. Located inside the Office of the Prime Minister, it was intended to serve as a central focal point within the GOK for the facilitation of a comprehensive, inclusive and gender-sensitive process on dealing with the past (DWP) through dialogue and cooperation, ultimately producing a National Strategy on Transitional Justice.
The IMWG’s establishment represented the first meaningful GOK initiative aimed at tackling issues of DWP and reconciliation. It formed the basis for fulfilling Kosovo’s obligations regarding implementation of the Comprehensive Settlement Proposal (CSP), better known to the public as the Ahtisaari Plan, which underpinned Kosovo’s 2008 declaration of independence. The CSP contains provisions aimed at promoting and protecting human and community rights, and envisages the creation of a process for DWP and transitional justice.
The IMWG was mandated to promote a process of reconciliation among all communities and their members in Kosovo. It was empowered to provide recommendations and advisory opinions to ministries, other public institutions, communities at the local level, and citizens. Crucially, this work was intended to take into consideration the views of all communities in Kosovo in order to promote reconciliation and lasting peace, and to ensure accountability, serve justice, provide remedies to victims, facilitate truth-seeking, promote healing, and take measures needed to restore confidence in the institutions of the state, in line with international human rights law and transitional justice standards.
Representatives of 12 public institutions and eight civil society organisations (CSOs) were appointed to the IMWG, with public agencies, international organizations, and diplomatic missions observing in an advisory capacity. Sub-groups were organized around four pillars of transitional justice: (1) truth-seeking, (2) reparations, (3) justice and (4) institutional reform.
In the five years since its establishment, the IMWG has failed to achieve its objectives, especially with regard to producing a National Strategy. Against this background, two Kosovan CSOs (Centre for Peace and Tolerance and Integra) and two international CSOs (Impunity Watch and PAX) initiated an objective, systematic and independent civil society review of the work of the IMWG, and a process of collective reflection on the implications of that work for the credibility and legitimacy of the National Strategy and its prospects for advancing societal transformation. Two consultants were tasked with undertaking the review, and the present report is the outcome of this process.

2. Methodology

The findings and recommendations in this report are primarily based on interviews with a broad range of stakeholders in Kosovo, and should therefore present an objective assessment of where the process stands. It is important to note that the co-authors were unable to interview the chair of the IMWG, despite specific requests, and unable to obtain several documents reportedly produced by the IMWG. Given that a central objective of the civil society review was to assess the IMWG’s capability to draw up the National Strategy, the co-authors considered it important to examine the political context, and therefore spoke to many people not directly connected to the IMWG but possessing specific insights on the broader environment for DWP.
A total of 32 in-depth interviews and 25 multidisciplinary review meetings were conducted by the co-authors in the period 9-18 January 2017 in Pristina. The interviews aimed to explore respondents’ perspectives on the work of the IMWG through a semi-structured set of questions. Supplemental questions were asked during interviews to clarify and/or further expand on certain issues related to transitional justice in Kosovo. Of the interviewees, 14 were active members of the IMWG or belonged to CSOs; they included people representing minority communities, ministries and public agencies, a former IMWG chair, observers from key international stakeholders in Kosovo, and a foreign technical adviser.
In the case of three respondents who were not present in Pristina, Skype interviews were held. Two members of the IMWG representing minority communities, and some representatives of ministries and CSOs, were sent the semi-structured questions and submitted their answers in written form.
Interviews were digitally recorded, transcribed, and reviewed by the co-authors. Notes were also taken. The review report was submitted for validation to representatives of CSOs in Kosovo that are active in the field of DWP. The validation process confirmed the analysis and findings of the report.

3. Findings

“… the process is extremely important for future inter-ethnic relations. Coexistence and reconciliation are impossible without transitional justice”. (Ethnic Serb respondent)

3.1. Has the IMWG achieved its goals?

According to its mandate, the main task of the IMWG was to:
“establish a comprehensive, inclusive and gender-sensitive approach for dealing with the past in Kosovo including the last war and the transition period taking into consideration the views of victims of all communities in Kosovo, amounting to a National Transitional Justice Strategy”.

The civil society review clearly indicates that the IMWG has not lived up to expectations. Five years on from establishment of the working group, no National Strategy has been adopted; indeed, according to the information available, no draft has been circulated among the members for discussion. A detailed plan for national consultations on DWP was developed by a small group of members of the IMWG in November 20162. This plan is believed to be with the IMWG chair, but no information has been given on what further steps are envisaged for conducting consultations.
The IMWG’s mandate is based on an official government decision, taken in accordance with the constitutional framework of Kosovo. This was a clear signal that DWP is an important issue for the state. Responsibility for the success or failure of the IMWG process therefore lies ultimately with the GOK.

3.2. What challenges did the IMWG face?

The interviews revealed various reasons for the IMWG’s failure to develop a National Strategy. These include both procedural and more substantive problems.
Procedural problems
–  Planning and design: Several respondents raised the concern that the mandate of the IMWG was too broad and too ambitious. The IMWG was designed primarily by representatives of the international community and the GOK, and no consultations took place with CSOs before it was established. Associations of victims and missing persons were largely uninformed about the IMWG and its work.
–  Leadership and management: Several respondents indicated that the IMWG lacked strong and consistent leadership, that the style of chairing meetings was authoritarian, and that decisions did not always reflect the outcomes of discussions. More effective leadership and management, including by the secretariat of the IMWG, might have helped to overcome some of the problems identified in the review.
–  Composition: Many respondents (mainly from CSOs) expressed concern that IMWG members’ lack of capacity, and imbalance in this respect between CSO representatives and those from government ministries, contributed to poor decision-making. Although many CSO members have experience and expertise in the field of DWP, they lack experience in the way institutions work and in the process of drafting strategies; however, the creation of sub-groups led to members being more active and productive, and dozens of draft documents were produced. Representatives from ministries were not sufficiently senior or empowered, and could not speak on behalf of their institutions; there was a lack of communication between these representatives and their superiors; turnover among representatives from ministries was high. Lack of unity and cooperation between members in plenary sessions undermined the IMWG’s work. Internal tensions and disputes (including between the chair and civil society representatives) were commonplace.
– Lack of dedicated financial and human resources: The GOK relied entirely on international donors to cover the costs associated with the process, allocating no domestic financial or human resources. Donor funding covered core costs but not the implementation of activities.
–  Irregularity of meetings: Meetings of the IMWG were infrequent, whereas the IMWG’s own rules indicate there should be monthly meetings3.
–  Slowness of the process: The IMWG has yet to adopt an action plan despite the obligation to do so within 10 months of its establishment.
–  Lack of objective outreach and communication was identified by some respondents as a factor that prevented the IMWG from meaningfully engaging with the broader public.
–  Lack of parliamentary oversight: For example, the Assembly of Kosovo’s Commission on Human Rights, Gender Equality, Missing Persons and Petitions was not invited to become involved in the work of the IMWG.
– Technical assistance provided by the international community could have been more effective in supporting and monitoring the operation if it had played a more proactive role in advising on procedural matters. However, this assistance did support the work in the sub-groups, and a more positive picture was presented by respondents regarding the work in at least some of these, such as the sub-group on reparations.
Substantive problems
The review process revealed a set of substantive issues that hampered the establishment of a National Strategy on Transitional Justice. These can be grouped into three categories: (1) dynamics within the IMWG, (2) the relationship between the IMWG and other DWP processes, and, related to that, (3) broader difficulties regarding DWP in Kosovo.

1. Dynamics within the IMWG

The IMWG process has, for the most part, failed to establish a conducive environment for discussing substantive issues regarding DWP and reconciliation in Kosovo. The group has contributed more to division than to social change and transformation. This has happened for several reasons:

“In order to achieve a dialogue, we need to have both sides on board. We did not manage to have both sides even within the group”. (Ethnic Albanian respondent)

–  Scope of the National Strategy: Regarding the scope of the future National Strategy on Transitional Justice, there was considerable disagreement within the IMWG about whether it should cover only those violations committed up to 1999, or include the period after the war until 2001.

“Participation of communities was superficially included just to meet the basic standards, but such a composition did not allow more substantive influence in the decision-making and genuine diversity of opinions and interests”. (Ethnic Serb respondent)

–  Minority community representation: Representatives of minority communities perceived themselves to have been excluded from the design and work of the IMWG. Some felt they were not given the opportunity to express their opinions in meetings or to participate meaningfully in decision-making. The IMWG leadership failed to build trust with civil society representatives of minority communities, and no political representatives of minority communities participated. Many interviewees referred to a hostile attitude towards representatives of minority communities, which they claimed was fostered by the IMWG chair and deputy chairs. One Serb CSO representative did not attend meetings. To the extent that DWP issues were discussed within the IMWG, members tended to adopt a one-sided approach and argue for the perspective of their own communities.
–  Relations between the GOK and civil society on DWP: The IMWG failed to strengthen the relationship between the GOK and civil society on DWP issues. Despite initial hopes that working together would move the transitional justice agenda forward, there is now more mistrust between the two camps, and this will hold back progress on transitional justice for years to come. Responsibility for this situation lies with both sides. GOK representatives did not pay sufficient attention to the question of political ownership, or to addressing their own lack of relevant expertise, and neglected to ensure that the group was managed effectively. For its part, civil society, by insisting that it alone had “real” expertise on transitional justice and denying that the government had any competence in this area, did not help the process of building mutual trust.
–  Civil society divisions: Progress on transitional justice issues was to some extent impeded by differences within civil society and the fact CSOs could not speak with one voice. The reasons for these divisions were unclear but warrant further analysis, especially in relation to the political independence of members of the IMWG.
–  The international community had a key role in supporting the IMWG process. Although it provided some capacity-building through training and expert advice, this support lacked any real strategic vision and struggled to navigate a highly sensitive political context. UNDP, which acted as secretariat to the IMWG with financial support from the Government of Switzerland, failed to build an effective and proactive partnership within the group. Such a partnership could at various stages have helped the IMWG to overcome obstacles in a sensitive, highly political context in which sharply divisive issues were being tackled. An approach that was politically-sensitive, rather than merely technical and neutral, would have been more effective in countering the forces of division.

–  Lack of transparency on funding, related both to the activities of international donors and the GOK, further soured the IMWG working environment and led to tensions and competition, particularly between CSOs.

2. The relationship between the IMWG and other DWP processes

The IMWG was, in effect, a passive spectator in relation to DWP developments in Kosovo, rather than an active driving force. Most interviewees highlighted that the IMWG was detached and isolated from other transitional justice processes taking place in Kosovo and the region. It did not engage with any of the major DWP issues that came to the fore in Kosovo in the preceding years, including concerns over ongoing war crimes trials; establishment of the Specialist Chambers and Specialist Prosecutor’s Office for Kosovo by the Assembly, in cooperation with the European Union (EU); the RECOM regional truth and reconciliation initiative; developments in the area of reparations, including on sexual violence; lack of progress on the issue of the missing; and the President’s apology to the Serb community in Kosovo for wartime abuses. Notably, the IMWG was not consulted prior to the President’s announcement of a new Commission on Truth and Reconciliation in February 2017.

“The President of Kosovo will create another body for truth and reconciliation. We were not involved in this. If we will have IMWG and another truth commission, this then will lead us into a mess”. (Ethnic Albanian respondent)

Likewise, processes that have a direct or indirect bearing on transitional justice and its implementation in Kosovo, such as the EU-facilitated Pristina-Belgrade dialogue and discussions with the EU about the Stabilization and Association Agreement (SAA)4, did not enter the ambit of the IMWG. In other words, the group operated in a vacuum, without connection to other processes that are nevertheless relevant for the fulfilment of its core mandate to deal with issues of transitional justice and reconciliation.
This detachment and isolation of the IMWG casts doubt on whether the GOK had any real political commitment to and ownership of the IMWG process. It also raises some serious questions about the actual meaning and purpose of a National Strategy on Transitional Justice. Ideally, the IMWG should have been the political and technical engine behind a comprehensive framework for transitional justice in Kosovo, through the drafting of a National Strategy informed by the outcome of national consultations. Instead, it was one aspect of a piecemeal approach to transitional justice more responsive to political expedience and the obligations of the CSP than to the aim of meaningful societal transformation. If the IMWG is unable to shape or contribute to the broader DWP agenda in Kosovo, its actual value is questionable.

3. Broader difficulties regarding DWP in Kosovo

The complex and mutable DWP context in Kosovo has a direct bearing on the effectiveness of the IMWG. It is not the aim of the civil society review to provide an assessment of the state of transitional justice in Kosovo. However, the lack of progress made by the group is symptomatic of problems that obstruct and undermine progress in the DWP area more broadly. The interviews highlighted some of these problems.
Transitional justice in Kosovo unfolds at two levels. At the political level, it involves the interaction between the GOK and the international community. At the societal and cultural level, it involves civil society and politicians. At the political level, transitional justice can be seen as a tool used in efforts to stabilize the peace between two communities. The stick of criminal prosecutions, perceived as the most forceful tool in the transitional justice toolbox, has been applied by institutions of the international community (including the UN Mission in Kosovo, the International Criminal Tribunal for the former Yugoslavia, and today, the EU Rule of Law Mission, EULEX) as a means of persuading the GOK to make the “right” political decisions. Other transitional justice mechanisms which often more directly satisfy the needs of victims and society at large, such as reparations and truth commissions, have not been promoted as vigorously by the international community. The IMWG’s mandate is notable in this respect, in that it addresses the broader needs of society in the aftermath of serious abuses. However, the international community has so far offered no support for a more comprehensive agenda on DWP, as enshrined in the mandate of the IMWG. In other words, transitional justice, seen as a comprehensive response to past abuses, is not a priority for the international community in Kosovo.

–  The societal and cultural level continues to be dominated, as one analyst articulated it, “by identity politics and the appropriation of the post-conflict transition in Kosovo by nationalist elites”, which has undermined “societal prospects for telling and seeking the truth about the past5”. At this level, the wartime past is exploited by politicians to consolidate their power. Politicians keep the past alive and use it as fuel for the nationalism that keeps them in power. While citizens can articulate their rights and interests in opposition to corruption and organized crime, when it comes to discussions on DWP issues, collective suffering and group solidarity take precedence over individual rights and interests.
The IMWG has not managed to address any of these broader problems impeding progress on DWP in Kosovo.

3.3. Conclusions

The IMWG, at least as it stands today, cannot be considered an effective instrument for producing a National Strategy on Transitional Justice with the potential to contribute to societal transformation. There is a high risk that the IMWG will fail to fulfil its mandate. The President’s plan to establish a Commission on Truth and Reconciliation, which emerged abruptly without prior consultations, raises the spectre of inter-institutional confusion and competition, as well as questions about the credibility of the IMWG in designing a comprehensive National Strategy.
Without reinvigorated commitment from the GOK, the IMWG process is likely to dissolve, delivering no National Strategy at all, or rush to produce a National Strategy that lacks the legitimacy and credibility required to effectively deal with the past and prevent violations in the future. Among DWP CSOs in Kosovo, there are grave concerns that any eventual National Strategy will be a “cut-and-paste job”, drawing on national transitional justice strategies from elsewhere in the region, and reflecting both the lack of political will and absence of real dialogue within Kosovo on DWP issues.
Respondents were clear that new leadership is needed, possessing the courage to break through the deadlock and create a vision of Kosovo’s future that ensures non-recurrence of past crimes. Interviewees stressed the importance of education and expressed a strong interest in seeing DWP work focus on this area. The review also highlighted the need to strengthen civil society, so 13 Kosovo’s Framework for Dealing with the Past at a Turning Point that it can play a monitoring and accountability role at the institutional level, as well as in ongoing political negotiations and related processes.
Finally, the international community has a special responsibility to assist the IMWG, having crafted Kosovo’s existing framework for DWP through the CSP. Key allies of Kosovo, such as the United States, the EU and some key EU Member States that recognise Kosovo’s independence, need to use their influence with the GOK to support a comprehensive DWP framework. There must be no delay in meeting the justice needs of victims and society at large. Unaddressed and left to politics, these needs will breed future conflict.

4. Recommendations

The civil society review concludes that, if the IMWG process continues in its present form, it risks failing to deliver on its mandated task. Many observers, including members of the international community, believe that the IMWG process is now facing its last chance. To avoid total failure, the procedural and substantive challenges noted above must be urgently tackled. Clear political commitment is required to establish a genuine process leading to positive results, and if this is forthcoming, there could again be buy-in from all stakeholders.

4.1 Recommendations to the Government of Kosovo:

–  In order to save the IMWG process, the GOK must urgently communicate its support for the process at the highest political level, and reiterate its commitment to an inclusive, holistic, gender-sensitive approach to DWP in Kosovo.
–  This must be followed by concrete measures to build trust with the representatives of civil society and minority communities. These measures should include structural adjustments to tackle procedural and substantive problems identified in this study, for example, by making it possible to replace the chair and deputy chairs, and through the appointment of more senior public officials with the ability to speak on behalf of their respective agencies.
–  The introduction of annual reports to the Assembly of Kosovo’s Commission on Human Rights, Gender Equality, Missing Persons and Petitions would promote oversight of the IMWG’s activities.
–  The work of the IMWG should be better connected to other processes relating to transitional justice in Kosovo. These include processes concerned with prosecution, reparations, truth-seeking and institutional reform, but also peacebuilding and reconciliation processes as well as dialogue around EU accession. Linkages with such processes should be a standing item on the IMWG’s agenda, and experts involved in these processes, both national and international, should be invited to actively participate in the working group.
– Renewed effort should be made to reach out to the international community for support, both technical and political. The EU should be a key partner: development of a National Strategy on Transitional Justice is an explicit priority in the National Programme for Implementation of the SAA, and the EU recently adopted its own policy framework on transitional justice. The IMWG chair and the two deputy chairs and members from civil society should regularly brief EU Member State ambassadors in Pristina on the work of the group.
–  The IMWG’s outreach and communication strategy should be redesigned to make it more inclusive, in accordance with the mandate of the IMWG and its rules of procedure. Outreach must take into account political sensitivities around DWP issues and should not be one-sided; the Office of the UN High Commissioner for Human Rights should be invited to provide guidance and support. An outreach and communication task force could be created within the group, involving members of all communities.
–  More inclusive and detailed planning is needed before national consultations are implemented. A feasibility study should be undertaken by an independent expert on the purpose, modalities, and risks of consultations. Such a study should also cover the relationship between national consultations and the process of establishing the future Commission on Truth and Reconciliation. All this must be done urgently and in close cooperation with representatives of Kosovo’s minority communities, both CSOs and political leaders. Discussions should be held as soon as possible on whether the IMWG is fit to serve as driver for broad national consultations, or whether a new and more independent structure should be envisaged.
– The proposal to establish a Commission on Truth and Reconciliation should be examined through a broader and inclusive national debate, with the aim of building consensus around the purpose and scope of such a commission. Discussions should likewise take place within the IMWG.

4.2 Recommendations to civil society

–  Civil society must be more strategic in its approach on transitional justice in Kosovo. It should speak with one voice and create a vision for DWP that is easily understood and broadly communicated. Its strategy should include: devising concrete messages to explain why DWP is important for Kosovo, including from a gender perspective; defining short-term and long-term benchmarks to measure progress; and producing a detailed technical assessment and mapping of what has been done so far on transitional justice and where gaps persist. Members of victims’ associations and representative of minority community CSOs should be integrated and actively participate in the design of such a strategic approach.
–  Civil society should invest in strengthening its expertise around interaction with political processes and negotiations in general, as well as with the way that government functions. This could be done through peer-to-peer exchanges with CSOs from other countries that have experience in this respect. A gender perspective must be integrated in these exchanges. Advice and training on lobbying, monitoring and political engagement with institutions could also be requested from the international community.
– Civil society should carry out research into how an effective outreach and communication strategy could be developed for the IMWG. Members of minority communities and victims’ associations should be included in this work.

4.3 Recommendations to international community

– The international community must significantly strengthen its political support to the IMWG process and completion of the National Strategy, and to DWP more broadly. This should be done through prioritizing DWP in bilateral contacts, preferably at ambassadorial level, with the GOK. The US, the EU and its Member States should use their privileged access to the GOK in this respect.
– Key to leveraging political support for DWP will be efforts to improve coordination on transitional justice among international actors. One modality for improved coordination might be a “Group of Friends of DWP in Kosovo”, including representatives of key embassies and international organizations, that would convene on a regular basis to assess the evolving context, share information, and agree to common priorities. The group should work closely with civil society and victims’ associations in Kosovo.
– International donors should engage in a lessons learned and stock-taking process, reflecting on what has been done since 1999 on DWP, identifying challenges and trends. Specific focus should be given to the issue of strengthening civil society in DWP processes in the whole of Kosovo, within and outside Pristina. The outcome of this process should be discussed in a donor coordination meeting.
– DWP support should be understood more broadly, beyond criminal justice. Linkages should be made between transitional justice processes and conflict prevention and peacebuilding. The newly adopted EU Policy Framework on transitional justice should be used as guidance for assessing implementation on the ground6. Transitional justice support from the UN, the EU and others should also be more context-specific, aimed at creating partnerships in highly sensitive political contexts; such an approach should be reflected in the recruitment and deployment of international experts advising on the DWP process in Kosovo.
–  The EU should integrate transitional justice in Kosovo’s accession process. The integration of completion of the National Strategy in the National Programme for Implementation of the SAA was an important first step, which could be linked to direct technical and financial support to the IMWG. Any support, however, should be conditional on provision of political and financial support by the GOK to the work of the IMWG. The EU should also use its coordination meetings to discuss the implementation of its Policy Framework in Kosovo, and include DWP as a recurring theme in annual country reports.
–  The work carried out by the UN Special Rapporteur on the promotion of truth, justice, reparations and guarantees of non-recurrence on the issue of national consultations and victim participation could serve as guidance for the GOK in the design and implementation of national consultations, as well as for international donors.

( Co-authors Nora Ahmetaj and Thomas Unger, April 2017, PDF Format: civil-society-review-report-final-eng )