A New Chance for Justice

The Special Court for Kosovo is supposed to start operations by the end of the year, or so they say, just when the Hague Tribunal is about to bring its decades-long work to a close – a fact which undoubtedly carries a certain symbolism.  The International Criminal Court for the Former Yugoslavia has prosecuted a great many cases, and it has collected and made public tens of thousands of items of evidence, as well as having judicially established countless facts about the wars in the former Yugoslavia. But it has also raised some indictments (including the two brought against KLA (Kosovo Liberation Army) commanders that have been proven only to a lesser extent.  It is now up to the newly-established Special Court, which is also going to operate from the Hague, to rectify these mistakes (as well as omissions made by local courts in Kosovo) – and convict the perpetrators and bring justice to the victims.

By: Nemanja Stjepanović

If this were an easy task, it would have been done already by the Tribunal itself in at least two of its cases – Limaj et al. and Haradinaj et al.  But in fact, if the international judges and prosecutors of the newly-established Special Court are to hope for a different outcome, they will have to find a way to overcome all the problems involved, and not repeat the mistakes of their colleagues in the Hague.  The outcome of the two trials of KLA commanders conducted before the Tribunal, apart from the acquittal of four indictees (Fatmir Limaj, Isak Musliju, Ramush Haradinaj and Idriz Balaj) and the conviction of only two (Ibrahim Bala and Lahi Brahimaj), boils down to the rather limited number of court-established facts about the crimes against civilians of Albanian, Serbian or Roma ethnicity that took place in Kosovo and were perpetrated by members of the KLA; and thus to a complete lack of justice for the many victims of murder, imprisonment, torture, rape, forced displacement and destruction of property.

Before we go into a deeper analysis, let us first recall a few facts that are relevant to the soon-to-be Special Court (actually, an abbreviated title for the Hague-based Special Prosecution and  various chambers which are to operate in accordance with both international and Kosovo laws).  Their jurisdiction, as stipulated in the relevant law adopted by the Kosovo Parliament, primarily has to do with prosecuting the crimes perpetrated in Kosovo from January 1^st, 1998 until December 31^st, 2000, which were described in the report by Swiss Senator Dick Marty (adopted in 2010 by the Parliamentary Assembly of the Council of Europe).

One usually hears that this court is there to deal with the allegations of trafficking in organs harvested from abducted Serb civilians, which is not entirely true, as Dick Marty’s report mentions other crimes as well, including, first and foremost, the abductions, imprisonment, torture and murders of Serb and Roma civilians and ethnic Albanians deemed disloyal by the KLA.  It is expected that the court’s main task will be to solve these crimes, rather than to set out on a wild goose chase for evidence of organ-trafficking – which, by the way, is the hardest type of evidence to find.  Perhaps it would be best to phrase it like this: if the cases of abduction, imprisonment and torture of civilians are investigated properly, one could also expect results in organ-trafficking cases.  If the sequence were to be reversed, it most certainly would not yield any results.

Let’s now go back to the suggestion that the Tribunal’s past omissions represent future challenges for the Special Court.  On closer examination of the Tribunal’s two trials of KLA members, one can see that there were three groups of problems that obstructed both proceedings, or made it impossible to establish the relevant facts and the responsibility of the accused.  This must not be the case with the newly-established Special Court.

Firstly, in both proceedings – and this was particularly conspicuous in the Haradinaj, Balaj and Brahimaj trial – the prosecutors and the judges had a great deal of trouble with the witnesses.  In the courtroom, those of them who were expected to be of the greatest help in establishing the facts and, in particular, shedding light on the indictees’ roles in the KLA structure and their responsibility for the crimes, often went back on their pretrial statements and started singing the praises to their former commanders instead.  They blamed flawed translation or bad memory with regard to their pretrial statements, and there were some who spoke openly of being afraid.  For example, Shefqet Kabashi, a former member of the KLA, explicitly refused to testify, explaining that people in Kosovo were being “killed for no reason”, and making it clear to the judges that he had no faith in the court’s protective measures.  “Your protective measures exist in this courtroom, but not outside”, said Kabashi during the proceedings, opting to serve out a two-month prison term for contempt of court, rather than risk a worse fate by testifying.

Let us be clear: the killings of witnesses in Kosovo have never been as frequent as the Serbian media has suggested, but, by all accounts, they have  taken place. We will not even mention the issue of pressures being exerted continually.   After all, the first instance verdict against Haradinaj and his co-accused clearly notes that the proceedings were conducted “in an atmosphere where the witnesses did not feel safe” (the case was then re-tried in part, precisely because of all the problems with the witnesses, and another first degree, non-final verdict was rendered).  It is therefore above all up to  the Kosovo authorities, but also the international staff of the Special Court, to ensure that such an atmosphere does not arise again, and that witnesses such as Kabashi feel safe both in and outside the courtroom.

The second reason behind the Hague Prosecution’s failure in the cases against KLA commanders was, without any doubt,, the low quality of evidence provided by Serbia.  As early as 2000, one of the ministers in the Serbian government at the time was bragging about having wagonloads of evidence against Haradinaj (20,000 pages’ worth), which he intended to send to the Hague in its entirety.  However, it later turned out that this evidence  consisted, for the most part, of statements taken from Kosovo Albanians by members of two branches of the Serbian MUP (Public Security and State Security Police) in one of two ways – either by means of the coercion of unwilling informants, or under duress while in police custody, and often subject to torture.  Not only did such documents fail to contribute to the convictions of the KLA commanders in question, they were never even included in the evidence, and therefore not taken into consideration during the arrival at the verdict.

When it comes to witnesses, Serbia has not gain any fame either. There are too many examples, so we’ll list just two. Dragan Jašović, a criminal investigator from Uroševac/Ferizaj, had initially testified for the Prosecution in the Limaj et al. case about the KLA’s crimes, and then, shortly afterwards, quickly jumped to Slobodan Milošević’s aid and gave testimony in his defense.  The Prosecution was thus forced to bring into question the legitimacy of its own witness, which, in turn, influenced the Chamber’s conclusions in the Limaj et al. trial for the crimes perpetrated in the prison camp in Lapušnik/Llapushnik.  Among other things, the courtroom had heard evidence of the forced displacement and interrogation, torture and abuse that had taken place in the police station where Jašović worked.  The other example is the testimony of a protected witness under the pseudonym “81”, an alleged former member of the KLA, who was sent to the Hague by the OTP for war crimes in Belgrade. Testifying about the war crimes he supposedly witnessed in Jablanica/Jabllanica, he presented the court with so much nonsense that he transformed himself from a potential threat into a real treat for Haradinaj’s defense team, which was composed  of top legal experts.

In October of last year, the Serbian Parliamentary Committee for Kosovo appointed a working group to gather evidence of war crimes perpetrated by the KLA and send it to the Special Court through the Serbian OTP for War Crimes.  If the evidence in question is another wagonload of documents and testimonies similar to that of Jašović and the alleged former member of the KLA with an assumed identity, it would be better to just drop the whole futile task as soon as possible.  In any case, all the evidence and witness testimonies coming from the Serbian authorities have to be subjected to thorough scrutiny by specialists before they ever reach the courtroom, especially if we take into account that the Committee in question is chaired by Milovan Drecun, a former wartime reporter from Kosovo -known for his extremist attitudes towards Kosovo Albanians,  and the author of a book about “the atrocities and genocide perpetrated by Albanian terrorists against civilians in Kosovo”.

The third blunder by the Tribunal that must not be repeated concerns the work of the Hague Prosecution itself.  First and foremost, the most difficult cases have to be prosecuted by the best prosecutors, and not, as was the case with the Haradinaj trial, entrusted to those left after the most capable have slipped away.  Secondly, the investigations have to be conducted with extreme precision and dedication, and without the sloppiness shown, for example, by the  investigators from The Hague who questioned witnesses using the wrong procedure for the identification of perpetrators (including some of the accused).

But, to be fair to the Tribunal, we should also point out that it has been able to prosecute some crimes dating as far back as 1998, when the KLA structure was still emergent, loose and hard to nail down, making the crimes perpetrated by its members all the more difficult to prove.  However, the majority of the crimes perpetrated by members of the KLA took place after the signing of the Kumanovo Agreement in June of 1999 – that is, after the armed conflict ended, which means that these acts are outside the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia.  The Special Court will not be faced with the same problem, as it does not operate exclusively under international law, but in accordance with Kosovo laws as well.

There is one other thing to bear in mind, when it comes to the issue of the Tribunal not being up to the task, although it is not directly related to the work of the OTP and the trial chambers in the Hague – namely, the presentation of the court’s work to the interested public, particularly in those areas where the crimes took place.  The Hague’s Outreach Project, financed by donor funds and managed from within the International Criminal Court for the Former Yugoslavia, proved to be a poor investment, the final product of which, in most cases, never even reached the intended recipients, and when it did, was rejected with indignation.  Apart from a few exceptions, the media’s coverage of the court’s work was superficial and ill-intentioned, and, in most cases, left to the tabloids and outlets funded by the same centers of power that had financed the wars in the first place.  If this happens again, there will be no acceptance of the court-established facts in the societies concerned, and the effects of the court’s work on reconciliation between the communities most affected by the crimes will be reduced to a minimum.

It also needs to be said that the success or failure of this court’s special chambers and prosecutors will not depend solely on their own actions.  Even if their work turns out to be beyond reproach, without the support of the Kosovo authorities and Kosovar society in general,  results will not be forthcoming.  Apart from adopting all the relevant laws and bringing them in line with the Constitution and the provisions for the establishment of the Special Court,  Kosovar society first has to create an atmosphere conducive to the prosecution of war crimes.  In this regard, the first signals have not been at all good, as the statements made by high-ranking Kosovo politicians make it obvious that they perceive the Special Court as a necessary evil and a concession to the United States and the European Union, and not as an institution that will bring justice to the victims and contribute to Kosovo’s healing as a state.

The work of the Special Court will most certainly affect Kosovo’s state and local structures, as these include a number of individuals responsible for crimes against civilians; but this should not be regarded as an attack on the state, but instead as a form of support for the establishment of a just and healthy society worthy of EU membership.

The author worked for many years as a correspondent from the International Criminal Tribunal for the Former Yugoslavia for the Sense news agency, and is currently employed by the Humanitarian Law Center