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In Kosovo, an uncertain future for the war crimes court nobody wanted

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Supporters of the left-wing Self-Determination Movement party react in Pristina, the capitol of Kosovo, on Sunday, Feb. 14, 2021.
Supporters of the left-wing Self-Determination Movement party react in Pristina, the capitol of Kosovo, on Sunday, Feb. 14, 2021.   -   Copyright  Visar Kryeziu/Copyright 2021 The Associated Press. All rights reserved.
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When Kosovo’s parliament debated in 2015 whether to establish an international court to probe alleged war crimes by members of the Kosovo Liberation Army (KLA) during the 1998 and 1999 war with Serbia, the vote was presented as a simple choice.

Yes, would result in a deeper relationship with the European Union and Washington DC. No would mean further isolation.

The latter option was a stark option for the tiny Balkan state, whose 2008 declaration of independence from Serbia was still not recognised by Belgrade, Russia, China, and even a handful of European nations, including Spain and Cyprus.

In Kosovo, the vote was seen as an ultimatum: vote the war crimes court into existence, or kiss goodbye to ever joining the EU.

“The threat the international community posed on Kosovo was isolation,” Gëzim Visoka, associate professor of peace and conflict studies at Dublin City University, said.

The extent to which Kosovo’s political elite took that threat seriously in 2015 is demonstrated by the fact that the campaign to vote yes was led by Hashim Thaci, a former KLA commander. Thaci’s alleged involvement in war crimes during the 1998-99 war was one of the reasons the Hague-based international court was being set up in the first place.

Atrocities

In 2008, former UN special prosecutor Carla Del Ponte alleged that KLA members, Thaci included, had carried out atrocities in northern Kosovo and Albania during and immediately after the conflict with Serbia. These atrocities included the murder of Serb, Roma and other minority civilians, as well as ethnic Albanians accused of collaborating with Serbian paramilitaries and Yugoslav army units.

Among Del Ponte’s allegations was that the KLA had engaged in organ harvesting, a sensational claim which led to an investigation in 2011 by Swiss lawmaker Dick Marty on behalf of the Council of Europe. Marty’s findings supported Del Ponte’s, also pointing the finger at Thaci, who, in 1998 and 1999, was the political leader of the militant group.

That second report led to a third, by a Special Investigative Task Force (SITF) set up by the EU and the US specifically to probe the allegations that the organs of KLA prisoners had been removed and later sold to private clinics in Kosovo and Albania. It backed Del Ponte and Marty, although it said that organ harvesting had happened only on a “very limited scale”.

But it also reported that the KLA had carried out a campaign of persecution in the wake of the conflict, which was organised and sanctioned by “the top levels of KLA leadership”.

“There were Serbs who were killed [...], civilians [...] It could have been that some of [the killers] were with the KLA - but it was not the KLA."
Albin Kurti
Kosovo election winner

By 2015, Pristina was under mounting pressure over the SITF, Del Ponte and Marty findings from the US and Europe, who were in turn under pressure by Belgrade. Serbia had seen six senior political and military figures jailed for between 15 and 27 years for atrocities carried out in Kosovo. Now, it wanted the senior leadership of Kosovo to face justice as well.

So in 2015, Thaci managed to persuade enough lawmakers to back the establishment of the Kosovo Specialist Chambers, which would be part of Kosovo’s justice system but be based in the Netherlands and staffed entirely by non-Kosovar staff. Kosovo’s parliament voted 82 to five in favour of changing the constitution in order to set up the court, with 33 abstentions.

For the last five years, the court has busied itself in its brand-new €8m complex in the Hague, paid for by the Norwegian government, and with a €150m total budget between 2016 and 2020 from the EU. It has also received funds from the Swiss government, which in 2018 and 2019 donated over €180,000 for outreach work in Kosovo, according to the KSC's latest annual reports.

The Special Prosecutor's Office, the court's investigatory arm, has handed down a total of seven indictments, all of them during 2020. They include Thaci and former speaker of parliament, Kadri Veseli.

Thaci, who was Kosovo’s president when he was indicted in October, resigned and delivered himself to the Hague, where he remains in 2021.

Thaci and Veseli both deny the charges against them.

Despite having been brought into existence by Kosovo’s parliament, the court is extremely unpopular in Kosovo. It is seen as a direct attack on a military and political organisation that not only saved the country’s ethnic-Albanian majority from Slobodan Milosevic’s forces and ended a brutal campaign of ethnic cleansing but paved the way for an independent state.

It was Thaci who, in 2008 as prime minister, took Kosovo to independence, and his party, the Democratic Party of Kosovo (DPK), is dominated by former KLA fighters and leaders.

The KLA is part of the very foundation legend of the Kosovar state.

Visar Kryeziu/Copyright 2020 The Associated Press. All rights reserved.
Hysni Gucati, the head of the War Veterans Organization of the Kosovo Liberation Army is escorted by European Union security police officers, from his offices on September 25Visar Kryeziu/Copyright 2020 The Associated Press. All rights reserved.

Unlike previous international efforts to address transitional justice in Kosovo, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the KSC is only focused on the KLA and its alleged crimes between 1998 and 2000. As such, it has been criticised for singling out the KLA even as countless cases of Serbian atrocities against Kosovars remain unsolved.

“It has not been received well because the aggressor - the one that launched all these wars in the former Yugoslavia - has not surrendered, has not apologised,” said Naim Rashiti, executive director and senior Balkans analyst at the Balkans Policy Research Group.

In the years since 2015, there have been a number of attempts to weaken or even derail the KSC. In 2017, a group of MPs attempted to overturn the 2015 law, while a number of Kosovars convicted of war crimes against Serbs were pardoned by Thaci, then president, in 2018. Meanwhile, opinion polls reveal huge animosity towards the KSC from ordinary Kosovars.

“If you hear the narratives of young people - Albanians and Serbs - about the past, you are talking about two different worlds.
Gëzim Visoka
Dublin City University

In February 2021, Euronews revealed that president of the court, Judge Ekaterina Trendafilova, had appealed to the European Union for help due to continuing efforts to undermine its work in Kosovo. In a confidential briefing on February 11, she told 27 EU heads of mission that a scheme was underway to have the court moved from The Hague to Pristina, the Kosovar capital.

Three days later, on February 14, Albin Kurti’s Vetevendosje Movement swept to power in Kosovo, overturning two decades of rule by politicians and parties linked to an old guard of former KLA fighters, like Thaci, and replacing it with a younger generation of Kosovar politicians, some of whom were teenagers during the conflict with Serbia.

Kurti, who is 45, was a KLA member during 1998, but was in jail during 1999 and not released until 2001 - as such, he is not likely to find himself indicted by the KSC. Many of Vetevendosje’s MPs are in their 30s including acting president Vjosa Osmani, 38, and the movement won a landslide victory in February due to a massive turnout from young Kosovars.

That youth, cautions Visoka - who carried out focus groups with 150 young Kosovans in the summer of 2020 - does not necessarily translate to a more nuanced, or more critical, view Kosovo’s recent history. In his experience, even those born in 2000, whether Serb or ethnic-Albanian, see the conflict in exactly the same terms as their parents.

“If you hear the narratives of young people - Albanians and Serbs - about the past, you are talking about two different worlds. It is so fragmented, so wide. There is no consensus on anything that has happened, who is to blame, who was responsible,” Visoka said.

Lefteris Pitarakis/AP
In this Friday Aug. 6, 1999 file photo, Kosovo Liberation Army leader Hashim Thaci, right, attends a memorial ceremony for ethnic Albanian leader Fehmi Agani in Pristina.Lefteris Pitarakis/AP

In its single focus on alleged KLA crimes as opposed to all crimes committed during the 1998-99 war, therefore, the KSC has failed to achieve one of the key aims of transitional justice: to heal the fissures that political violence and inter-ethnic conflict creates by being a fair arbiter, and ensuring that victims are acknowledged and compensated on both sides.

“These courts have divided communities even more. They have helped them to vilify one another, incite ethnic dynamics, antagonise one another,” said Visoka.

While Vetevendosje has made its name as a movement opposed to the warlord political elite that has dominated Kosovar politics since 1999, it has never been a supporter of the KSC. In 2015, its 17 MPs voted against the changing of the constitution, and Glauk Konjufca, a Vetevendosje MP said in parliament that Kosovo’s “liberators were being judged”.

The question that arises for the KSC with Kurti poised to be Kosovo’s next prime minister - and, this time around, with a massive mandate of almost 50% of the vote - is whether he will be a friend or an enemy to the court in the Hague. Whether the new Kosovo that he has promised to build has a place for the kind of transitional justice that the KSC offers.

Speaking to Euronews on February 16, two days after his election win, Kurti said there was little his government could do about the KSC, which was “a fait accompli”, but that he would prefer war crimes cases dating from the 1998-1999 conflict to be heard in local courts. Echoing previous criticisms by Kosovar MPs, he said he objected to the focus on the KLA alone.

“I think we need a normal court - and all allegations should be addressed,” he said.

“Any crime that has been committed is unacceptable, and people who were perpetrators should be prosecuted, tried and punished. I think that Kosovo has the strength to do that.”

Kurti said his focus would be a complete overhaul of the domestic justice system, including the vetting of judges, prosecutors and senior police and intelligence officials.

“In this way, all allegations will be treated in our justice system. It will take some time but we are determined to continue down this path because I think that [we] must deal with what has happened within our republic in the past, in spite of nationality and in spite of time,” he said.

As for the focus on KLA crimes committed against Serbs and other minorities during the war, Kurti acknowledged that they took place but said it was wrong to blame the KLA. Prosecutors in the Hague will seek to establish during the trial of Thaci and Veseli that the KLA was a joint criminal enterprise between 1998 and 1999, something Kurti said is “not believable”.

“There were Serbs who were killed, especially after the war, civilians, and they were killed by individuals. It could have been that some of them were with the KLA - but it was not the KLA,” Kurti said.

“The KLA did not have a plan, or a programme, against Serbs. We were fighting a liberation war against Serbia as a state. Therefore, in 1998 and 1999, the conflict, the contest, the war, was not against Albanians and Serbs, it was against Albanians as people and Serbia as a state.”

Similar to Visoka’s findings, Kurti said that he believed young Kosovars were proud of the KLA and the NATO-backed conflict against Yugoslavia. Moreover, if there was animosity to the militant group it was only in as much as a minority of former KLA leaders, such as Thaci, enriched themselves in the years after the conflict as the country struggled to survive.

Stigma

“People here generally know that out of 20,000 war veterans, only 1% of them are in politics [...] and among that 1% some got very rich and very powerful and that was done due to corruption after the war, brutal and abusive privatisation, abuse of power,” he said.

“They don’t identify the KLA as an army, as an organisation, and as history with these individuals.”

Kurti would not be drawn on what he will actually do when it comes to the work of the court, whether he would support another attempt - as in 2017 - to dismantle the court, or on the prospect of presidential pardons of those indicted if they are convicted. But faced with the COVID-19 pandemic, a failing economy and the ongoing talks with Serbia, his approach may simply be to ignore it.

And that, Visoka said, could be a good thing for Kosovo.

“At the end of the day, that’s how it should be. You see in the West, sensational cases taking place in courts but there isn’t much attention. Kosovo is judged internationally by this court, and the more attention we give to it the more we antagonise, stigmatise Kosovo,” he said.

“You can’t really hold society back for something that is not its fault. We have to let the process happen and regardless of the outcome, Kosovo must move on."

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