An Unfinished Justice: How International Community Traded Justice for the Stability in Kosovo

Although, there is a considerable literature which analyzes the UN Mission in Kosovo (UNMIK) from different perspectives, limited attention has been given to the mission’s contribution in confronting with war crimes and crimes against humanity in Kosovo, committed by the Milosevic regime against Kosovo Albanians during the 1998-1999. This article intends to provide a comprehensive analysis of international justice mechanisms – UNMIK and the International Criminal Tribunal for the former Yugoslavia (ICTY) – in dealing with the past injustices in Kosovo by identifying their flaws and shortcomings, as well as exploring factors that impacted their performance and effectiveness. By using the existing literature, international organizations’ reports, governmental documents, and media publications, the article argues that the international community failed to deal with transitional justice issues in Kosovo – fighting impunity and delivering justice to victims as well as strengthening the rule of law and achieving reconciliation among the communities. In its endeavors to documenting the past crimes, international mechanisms relied mainly on retributive justice whilst ignoring restorative and reparation measures under justifications to preserving peace and stability in Kosovo. Regretfully, seventeen years after the war, justice in Kosovo remains an “unfinished business,” with a potential of negative implications to peace and reconciliation among the ethnic groups.

·       Introduction           

It was summer 1999, just a few weeks after the end of war in Kosovo. An estimated 13,535 individuals – predominantly ethnic Albanians – were killed, while about 900,000 others were forcibly expelled from their homes (Human Rights Watch, 2001:4). I still had visions of horrendous scenes: I could see images of my younger sister lying on the coffin with her hair all in blood. I could hear my uncle’s voice screaming of tortures and brutality. I could also memorize the beautiful eyes of Drenusha, a two years old girl, whilst swathing her remaining arm entirely vanished by a grenade. The whole family, except her father, was killed. Suddenly, I was interrupted by a rattle of doors followed by voices calling for an emergency. A Kosovo Serb was brutally attacked by Kosovo Albanians in a series of revenge acts directed against minorities immediately after the war. Though, I could still feel the pain of my scars, I took the strength of providing aid to those who were perceived as “our enemies” – by clearly differentiating the regime from its population. Instead of hatred and revenge, I decided to pursue the truth and justice.

      Seventeen years after the war, I am still struggling to unraveling the truth and restoring justice for my uncle – arrested by Serbia security forces earlier in 1998. Since then, he disappeared. The family plight to the international mechanisms of justice in Kosovo has always received the same answer: “Investigations are going on.” The relevant authorities in Serbia, meanwhile, would remind us that “my uncle’s fate is a ‘political issue’ whose resolution depends on the politics.”[1] The missing persons’ issue is regarded as one of the most pressing issues and “the gravest wound of the war,” not only for the missing relatives but for the whole society in Kosovo (President of Kosovo, BIRN 2016). For families, it represents an “indisputable injustice,” whose resolution equals to peace and justice. To date, 1,666 out of 6,024 individuals reported as missing in 2000 remain unaccounted for, alongside with 414 persons belonging to minorities and/or Albanians who disappeared or abducted immediately after the war (CRDP, 2012; 2014). The UN Mission in Kosovo (UNMIK) has been repeatedly criticized for failure to conduct immediate and effective investigations on the missing persons, thus, violating human rights of victims and their families to know the truth on their loved ones. As the UNMIK Human Rights Advisory Panel (UN-HRAP) revealed, “UNMIK undertook no action to inform the family members on the status of their cases, identify and bring to justice the perpetrators, moreover, it failed to implement the HRAP recommendations – particularly – with regard to reparation, restitution, compensation, and guarantee of non-repetition.” (2012; 2016)

      Transitional justice end goals aim to establishing or reestablishing the rule of law, ensuring accountability by fighting impunity, delivering the truth and justice to victims, as well as promoting reconciliation amongst the communities (Andreiu, 2010a). The international monitoring organizations, however, suggest that international community in Kosovo failed to meet these objectives. International mechanisms designated to deal with transitional justice issues in Kosovo – the International Criminal Tribunal for the former Yugoslavia (ICTY) and UNMIK – in particular – have been criticized for a “systemic failure to prosecute and adjudicate war crimes in Kosovo,” primarily due to a lack of strategy and low prioritization of war crimes comparing to other international goals (Amnesty International, 2008; OSCE, 2010). Additionally, the international community failed to adopt a “holistic” approach, incorporating as well as restorative measures together with the retributive ones – which call for the centrality of victims in transitional justice processes. Efforts to establish a truth and reconciliation commission (TRC) were blocked – amongst others – because of disagreements considering the period of conflict as well Kosovo status, whereas initiatives to set up a specialized tribunal failed due to the budgetary constraints. Nevertheless, Kosovo marked a major step in 2015 by creating the Specialist Chambers and Specialist Prosecutor’s Office for war crimes in Kosovo (hereinafter: the Special Court) with a mandate to investigate the alleged crimes committed by some extreme elements of the former Kosovo Liberation Army (KLA) during and after the conflict. Yet, the Special Court is criticized of being “one-sided” and “partial” – directed against Albanians only while leaving out hundreds of Serbs suspected of conducting crimes against Albanians during the war.    

       This article analyzes international strategies to confronting with past legacies in Kosovo, and argues that international community failed to deal with transitional justice issues in Kosovo – fighting impunity and restoring justice to victims, as well as strengthening the rule of law and achieving reconciliation. The article is structured as following: the first section examines the international mechanisms approach – UNMIK and the ICTY to deal with transitional justice issues in Kosovo; it goes on by viewing mechanisms in dealing with victims and the affected communities, then, the article provides an analysis of the Special Court by weighting arguments pro et contra its creation, and lastly, it provides a set of recommendations for the future considerations.

·        Transitional Justice: definition and objectives

Transitional Justice (TJ) emerged in the late 1980s as a field of theory and practice to deal with systematic or large scale human rights violations. Its overarching goal, as Kritz defined it, aims to combating impunity through criminal prosecution of perpetrators, restoring truth and justice for victims, as well as establishing democracy and rule of law in transitioning societies from war to peace and/or repression to democracy (1995). Almost a decade later, transitional justice entered into the United Nations legal doctrine as a notion encompassing a “full range of processes and mechanisms associated with a society’s attempt to redress the legacies of past abuses with the purpose to ensure accountability, serve justice, and achieve reconciliation.” Transitional justice consists of judicial and non-judicial measures, including individual prosecutions, truth and reconciliation commissions, reparations, institutional reform, memorialization, and vetting and dismissing processes (UNSC, 2004:4). 

       The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – after the Nuremberg and Tokyo trials – represent a model of judicial measures with political authority aimed at restoration and maintenance of international peace and security through criminal prosecution of individuals involved on the worst atrocities in the former Yugoslavia during the 1990s, and in Rwanda in 1994 (Kerr, 2004:2). Created by the UN Security Council, the ICTY and ICTR were conceived as alternatives or to supplement domestic courts with the purpose to issuing a detailed narrative of past atrocities, ending the culture of impunity, creating a link between peace and justice, strengthening the rule of law and promoting peace and reconciliation (Andreiu, 2010a). In addition, international community invented the so-called “hybrid courts” as complementary arrangements to national or international tribunals. Similar courts were created in East Timor and Sierra Leone, where no politically viable full-fledged international tribunal existed, and in Kosovo, where an international tribunal existed, but could not cope with the sheer number of cases (Dickinson, 2002). Of the non-judicial tools, truth and reconciliation commissions have taken a greater prominence in the recent years as they seek to deal particularly with victims by addressing questions that could not be answered through the judicial means. The TRCs, according to the definition provided by Hayner, are temporary inquiry bodies – officially established by the state – with the objective to investigate a pattern of abuse over a period of time rather than a specific event, and to conclude with a public report (2011:11).

       In confronting with past legacies, strategies to transitional justice must be “holistic” consisting of retributive approaches (i.e., prosecutions) and restorative approaches (i.e., truth commissions), including accountability, institutional reform, and reconciliation (Boraine, 2006:19). These processes must be accompanied with the complementary measures of truth and justice, such as public apologies and condemnation of atrocities deemed crucial for trust and relationship-building, conflict and social transformation and reconciliation (Fischer & Simic, 2015:143). For justice to be effective, endeavors, therefore, must be a victim–centered and human rights-based focusing on the rights and needs of victims, followed by a comprehensive process of national consultations enabling victims and their representatives to participating and having their say in the planning and implementation processes (OHCHR, 2009:1).

·        Transitional justice in Kosovo: No strategy, mainly ad hoc and crisis-driven approach

The Technical Military Agreement concluded between the NATO authorities and former Yugoslavia and Serbia forces in June 1999 halted the systematic campaign of ethnic cleansing committed by the Milosevic regime against Kosovo Albanians during the 1998-1999. Following this agreement, the UN embarked an international civilian and security presence to maintain “civil law and order,” including the enforcement of local police, and through it to protect and promote human rights in Kosovo (UNSC Resolution 1244/1999). As stipulated on the Resolution 1244, all parties, including the international security presence were demanded to fully cooperate with the ICTY relating to war crimes in Kosovo. The Tribunal’s capacity, however, was restricted to so-called “high profile cases” only (ICTY, 1999). This, as Newton put it, meant that the “road to justice would be longer and more difficult, but ultimately more conducive to long term societal stability and the respect for the rule of law.” (2003:306) Concurrently, the UN mission in Kosovo was empowered with responsibilities to deal with war crimes and gross human rights violations in Kosovo during and after the war, though, Resolution 1244 remained vague regarding UNMIK mandate on war crimes and crimes under international law (Perriello & Wierda, 2006:9). As a former UNMIK official said, “at the point of time,” international community lacked a general consensus as to whether or not infuse international judges and prosecutors within the Kosovo justice system (Hartman, 2003:4) under the assumptions to avoid a “neo-imperialist system.” (King & Mason, 2006:63)

       Rather than creating an international system, UNMIK administration originally opted to rely upon Kosovo prosecutors and judges by creating in earlier 1999 – the Emergency Judicial System (EJS) composed of 55 Kosovo judges and prosecutors to be proposed and selected by a Joint Advisory Council on Provisional Judicial Appointments (JAC/PJA). However, due to concerns regarding lack of capacity and expertise within Kosovo jurists, including the mono-ethnic composition of judiciary, incidents in the North of Kosovo, and suspicions on partiality and discrimination of the Albanian judiciary – especially on crimes relating to war crimes and inter-ethnic violence – forced international community to intervene in order to fix the justice sector (Hartman, 2003:6). On February 2000, the Special Representative of Secretary General in Kosovo (SRSG) introduced the International Prosecutor and Judges system (IPJs) – later known the UNMIK Department of Justice – infusing an international judge (IJ) and an international prosecutor (IP) into Kosovo justice law and procedure, initially attached to the district court of Mitrovica and within three months to every district in Kosovo (Chesterman, 2002:5). The IPJs tasks were narrowed to criminal cases only, moreover, the international judges were often outvoted by the Albanian majority – most notably – in cases relating to war crimes and inter-ethnic violence involving the KLA members or high senior officials. As a result, on December 2000, UNMIK promulgated Regulation “64 panels” on the Assignment of International Judges/Prosecutors by increasing the number of IJPs, as was said, to ensure the independence and impartiality of judiciary. With that being said, all cases involving war crimes, including serious ethnic-motivated violence were attached to the “64 panels.” (Amnesty International, 2008:13) Through this “unprecedented” move, UNMIK, as O’Neill argued, finally recognized the fact that without international participation, the judiciary could not operate freely and fairly, and consequently risking the security situation in Kosovo (2002:92).

       Instead of creating an international or national specialized chamber to deal with past crimes in Kosovo, international community injected the internationalized hybrid courts as an ad hoc approach to respond the urgent needs on the ground (Perriello & Wierda, 2006:12). Unlike special panels in East Timor, Sierra Leone and Bosnia, hybrid courts in Kosovo, emerged as a partial solution to fix problems of legitimacy, impartiality and capacity-building alongside with the ICTY inability to handle the large number of war crime cases (Dickinson, 2003:1064). As the matter of fact, as early as 1999, international community had considered the idea of establishing a special tribunal – composed of local and international judges – with the mandate to address war crimes, crimes against humanity and other serious ethnically motivated crimes in Kosovo committed since 1 January 1998. The Kosovo War and Ethnic Crimes Court (KWECC) was contemplated to operate between domestic courts and the ICTY – with primacy over the former and concurrent jurisdiction with the latter (Baskin, 2001:19). The idea, however, was abandoned mainly due to the budgetary constraints (OSCE, 2010:11), the fear within international and Albanian politicians of exacerbating ethnic tensions, resistance of Albanian lawyers of potential complications in having an additional judicial layer between domestic system and the ICTY (Cerone & Baldwin, 2003:36), and the functionalization of the IJPs.

     The Department of UN Justice under which the IJPs had operated, and UNMIK justice system – in general – has been criticized for a “systemic failure to prosecute and adjudicate war crimes in Kosovo,” and to comprehensively document the large-scale human rights violations – because of the low prioritization of war crimes comparing to other UNMIK goals, poor planning and implementation, and lack of capacities and resources (OSCE, 2010:6). When UNMIK transferred the competences to the European Union Rule of Law Mission in Kosovo (EULEX), it left behind a backlog of 1,187 war crimes having completed just over 40 cases with a total of 37 individuals tried of war crime allegations between 1999 and 2009. As Amnesty International observed, “more than seven years after the International Judges and Prosecutors program was established, a culture of impunity persists; hundreds of cases of war crimes, enforced disappearances and inter-ethnic crimes remain unresolved.” (2008; 2012) The small number of completed cases comparing to the outstanding cases waiting to be proceeded, suggests that transitional justice in Kosovo, woefully, remains an “unfinished business.”

       The international tribunal, on the other hand, indicted 161 individuals for crimes committed in the former Yugoslavia – with a total of fourteen individuals relating to crimes in Kosovo (ICTY, 2016). Five cases (Milosevic & Milutinovic et al) against eight Serb defendants and two cases (Limaj et al & Haradinaj et al) against six Kosovo Albanian defendants were found guilty. Obviously, this number, as Zaum suggests, is “too small considering the gravity of war crimes in Kosovo” (2013:2), let alone the fact that Milosevic – the main defendant for the prosecution of whom the ICTY was founded – died with no verdict being issued so far thus failing to not bring an accounting for great violence, and a vindication and justice for the victims (Waters, 2013). Generally, the ICTY has been subject to a wide criticism among scholars and practitioners. Its justice and legacy remain deeply contested generating grievances of all sides due to unduly light sentences, ethnically biased and politically-motivated decisions. Moreover, the Tribunal, as Clark argues, failed to contribute the inter-ethnic reconciliation in Bosnia, Croatia, and Kosovo by hardening rather than bridging ethnic divisions (2014:204-205). The ICTY convictions against Albanian defendants, as some studies have found were interpreted by Kosovo Albanians as partial, politically biased and as a tendency to balance the perpetrators with the victims; whereas, for Kosovo Serbs, the decision on the provisional release of former Prime Minister Haradinaj was a “partisan justice.” (KIPRED, 2008:17) According to Serbian citizens, on the other hand, the Tribunal was mainly directed against Serb defendants who composed the vast majority of cases, whilst the crucial cases involving crimes against Serbs ended in the acquittal of high-profile non-Serbian defendants (OSCE, 2015:24).

      In the same way, the War Crimes Prosecutor’s Office (WCPO) of Serbia has made no progress in prosecuting those responsible of committing the worst atrocities in the former Yugoslavia due to the political interference it faced since its creation. As of today, the WCPO has charged 162 defendants – with only 14 percent of cases representing crimes committed against Kosovo Albanians (OSCE, 2015:3).

·        Impunity prevails, the rule of law – weak and still a major challenge  

“If you were to say of these men that they are not guilty, it would be as true to say there has been no war, there are no slain, there has been no crime” – Justice Robert H. Jackson on his closing arguments for conviction of Nazi war crimes, July 26,1946.

The post-Milosevic governments in Serbia not only failed to confront with the past injustices in Kosovo but they have also constantly denied to accepting the responsibility for crimes committed by the Milosevic regime on behalf of Serbia population. Neither did they offer a public apology to Kosovo’s victims and their families. The overwhelming majority of war crimes, as illustrated above, have gone unpunished, and even fewer perpetrators have been held accountable for their past wrongdoings. Impunity, as Human Rights Watch suggests, has continued to be a source of tension and one of the main hurdles for peace and reconciliation in Kosovo (2008: 34-51). Accountability for the past crimes points to a state response to crimes against humanity; the state, therefore, is obliged to investigate, prosecute and punish the perpetrators; disclose to the victims, their families, and society all that can be reliably established about those events; offer the victims adequate reparations; and separate known perpetrators from law-enforcement bodies and other positions of authority (Mendez, 1996). As the UN Secretary-General recognized, transitional justice initiatives not only help promote accountability but they also aim reinforcing the rule of law (UNSC, 2011). The rule of law, according to some authors, is a necessary condition for transitional justice, whereas the end goal of transitional justice is to reestablish rule of law – and through it – achieve justice (Mihr, 2013; Andersen, 2015).

      Transitional justice can be a useful tool for both – reestablishing the rule of law by helping build state institutions, and transforming the whole society – through healing victims, promoting reconciliation and unearthing the truth on the past (Andreiu, 2010a). Regretfully, the UNMIK hybrid courts failed to meet those objectives – securing justice and promoting the development of human rights in Kosovo, and – most importantly – consolidating and strengthening rule of law, which was one of the mission’s fundamental objectives (Cerone & Baldwin, 2003:44). Generally, as some local NGOs have argued, transitional justice mechanisms have remained largely ineffective in transforming political and social life in post-Kosovo conflict, moreover, they have not improved the ethnic tensions between Albanian and Serb populations (CRDP, 2012:52). The rule of law, according to the periodical reports of the European Commission, remains weak and problematic, while the judiciary is criticizes for being prone to political interference – whose success is hampered by a latent corruption and intimidation present in rule of law and related public institutions (The European Commission, 2015).

      Enormous factors have been mentioned as significant in determining Kosovo paths in dealing with transitional justice issues in general, and hindering the functioning and effectiveness of the judiciary system, in particular. First and foremost, the absence – to date – of an official political agreement between Kosovo and Serbia to “settling the past accounts.” (KIPRED, 2008:15) The current existing documents – the Resolution 1244 and the Comprehensive Proposal for Kosovo Future Settlement (Ahtisaari Proposal/2007) meanwhile, have been subject to different interpretations, contestation, and unilateral implementation – by both Kosovo and Serbia authorities (Burema, 2012:9). Secondly, the incapacity of Kosovo judiciary to performing this task as the system was severely damaged during the occupation period followed by the exclusion of the Albanian jurists. And most importantly, the UNMIK failure to developing a coherent strategy on the judiciary sector, including war crimes, at the outset of its deployment. As Marshall and Inglis put it, “UNMIK opted instead for a dithering approach that proved catastrophic for defendants and victims alike, particularly for Kosovo Serbs.” (2003:96) The UNMIK approach to justice sector, according to UNMIK senior officials, was incremental and crisis-driven rather than bold and immediate (Hartman, 2003:2). Whilst, the KWECC was conceived as an independent transitional justice mechanism to boost the rule of law and as a jump-start for the judicial reform process, the temporary introduction of IJPs and “64 panels” were motivated primarily by pragmatic and immediate security needs (Perriello & Wierda, 2006: 13).

      Additionally, the international judges and prosecutors lacked the capacity and expertise on war crimes and had limited information on the applicable law in Kosovo (due to a random and non-aggressive selection approach) often resulting in confrontation with the local counterparts regarding different interpretations of the international law and/or impartiality and independence. As Amnesty International revealed, “International prosecutors over-relied on the ICTY indictments that were simply copied without consideration the fact that Article 7 of the ICTY Statute is different from the applicable law in Kosovo,” adding that “the long-term capacity building of the judiciary, as the UNMIK officials admitted, was never an aim of the IJPs.” (2008:59) Though the internationalized top-down courts in Kosovo were imposed to guarantee the impartiality and independence of the judiciary, at the end, the IJPs were accused of being partial, ethnically biased and discriminatory towards Kosovo Albanians while disproportionately protecting Serb defendants with regard to war crimes. Many Serbs, as Perriello & Wierda argue, were not prosecuted and even those prosecuted ultimately were acquitted or received light sentences, whereas the Albanian suspects were convicted and received more severe punishments (2006:31).

      After Kosovo declared independence in February 2008, Kosovo institutions resumed the responsibilities on justice and security sectors under the EULEX monitoring. As envisaged in the Ahtisaari’s Proposal and the EU Council Joint Action 2008/124, EULEX was vested with the mandate to “ensure the proper investigation, prosecution, and adjudication of war crimes and other serious crimes in Kosovo.” To date, this mission has adjudicated fifteen war crimes out of 1,200 cases against eight Albanian defendants and seven Serb defendants. Off 500 cases had been closed or dismissed due to the lack of evidence, and 600 cases are pending in the Special Prosecutor of Republic of Kosovo (SPRK) and the War Crimes Investigative Unit of Kosovo Police and EULEX. Currently, Kosovo and EULEX prosecutors are investigating 100 war-crimes cases and 216 active cases on Missing Persons (EULEX, 2016). Despite the public trumpeting, EULEX has been criticized as being “inadequate to the task” – to deal with war crimes because of the small number of staff dedicated to war crimes comparing to the outstanding number of cases sitting on the EULEX drawer. Same as its predecessor, EULEX is perceived as politically biased and partial by both Kosovo and Serbia authorities. The trial against eight KLA senior officials, known as “Drenica Group” – convicted of war crimes committed during the 1998-1999 has been interpreted as “politically biased” and an attempt to equate the just war of the KLA with crime and genocide committed by Serbia against Albanians (BIRN, June 2015). The same reactions met the verdict against Oliver Ivanovic, a local Serb politician sentenced to nine years in prison for committing war crimes during the war in Kosovo (VOA, January 2016).   

·        Not a restorative approach: victims ignored or used for political purposes 

Restorative justice emerged as a complementary approach to retributive paradigm with the purpose of healing the spirit of victims, building trust and relationships amongst the communities, and aiding reconciliation (Fischer & Petrovic-Ziemer, 2013:20). The restorative approach seeks to shift the focus from perpetrators to the victims and their affiliated by restoring interpersonal relationships through empowering victims to participate in defining obligations while providing opportunities for offenders to making the wrongs right (Zehr & Mika, 1997). The United Nations urges all member states to utilize restorative justice programs into their criminal matters when engineering and operationalizing restorative justice programs (UN ECOSOC Resolution 2002/12). International community in Kosovo, however, failed to adopt a comprehensive and victim-centered approach that takes into account the restorative mechanisms – in addition to retributive mechanisms that point to the centrality of victims in the transitional justice process. Rather than focusing on restorative justice, international community in Kosovo relied mainly on retributive justice – through arrest, prosecution and trial of the perpetrators – whereas the victims’ predicament has been either ignored or used for political purposes by local actors (Visoka, 2016:2).

      The international community, as some national think tanks argued, had intentionally ignored restorative and reparative measures under justifications to preserving peace and stability in Kosovo. Justice, in fact, has been sacrificed for the sake of stability in Kosovo (KIPRED, 2008:15). As of today, no serious efforts to set up a truth-seeking commission have been made, whilst an earlier initiative was mainly blocked due to the disagreements regarding the period of conflict, Kosovo status, and lack of a forum for public acknowledgement and reconciliation on both political and community levels (Perriello & Wierda, 2006:29-30) The political elites in Kosovo and Serbia, including other countries in the region, as Gordy maintains, lacked a genuine political will and also they were not prepared to “digging into the past,” whereas the international actors had only a superficial interest on such a process (2013:68-65). In Serbia, initiatives never received a broader public recognition and credibility, whilst in Bosnia, efforts to create a TRC failed generally due to the government’s rejection, and partially because of the non-inclusion of victims’ and other groups in the process (Zupan, 2006: 333-334). Of all regional initiatives, only the Republika Srpska commission on Srebrenica has produced a meaningful report in 2004 by providing detailed information on killings and missing persons in Bosnia (Gordy, 2013:81).

      A truth and reconciliation commission, according to Sverrisson, might help contribute in shedding light on the political context in Kosovo, preventing extremists from abusing the myths to gain or retain political power, and most importantly, establishing an “official truth” or an “acceptable account of the events,” that would reconcile different “truths” while eliminating or reducing the credibility of myths (2006:12). It is commonly acknowledged that criminal justice alone, is not sufficient to deliver justice, while the truth–seeking commissions, though not mandated to, often lead to criminal prosecutions, and may precede justice and reconciliation, too (Braithwaite, 2013: 30). For example, the TRCs, as Hayner shows, did achieve remarkable contributions resulting in significant reparations to the victims in Argentina, Chile, and Morocco, and proceeded prosecutions and judicial reforms in El Salvador (2011:5). As the former Secretary of State, Madeline Albright (1993) put it, “Truth is a cornerstone of the rule of law, and it will point towards individuals, not peoples, as perpetrators of war crimes. It is only the truth that can cleanse and religious hatreds and begins the healing process.” (Schabas, 2008:235)

      Following independence, Kosovo institutions resumed responsibilities on the justice and security sectors pursuant to the Ahtisaari’s Proposal and committed to promote and respect the process of reconciliation between all communities by establishing a comprehensive and a gender-sensitive approach to deal with the past (2007:4). Accordingly, they undertook several legal and institutional steps intending to redress the victims of the war, including reconciliation. Thus, in 2011, the Government of Kosovo established the Institute for Researching War Crimes in Kosovo (IRWC) with the aim of coordinating, tracking and researching war crimes, and publishing a report, and developing a database on the criminal cases from 1990 to 1999. Additionally, in 2012, the Government set up the Inter-Ministerial Working Group on Dealing with the Past and Reconciliation in Kosovo to deal with serious violations of international law, including truth-seeking, reparations, justice and institutional reform, as well as reconciliation (Government of Kosovo, 2011; 2012). Yet, despite efforts, no tangible results have been recorded so far as the IRWC lacked the capacities, competence, and budget, whereas the working group has suffered from weak institutional supports and the political unwillingness of both sides to dealing with the past (BIRN, June 2014; Visoka, 2016:5). Furthermore, the reconciliation process, according to the Humanitarian Law Center in Kosovo, has been held hostage because of the large caseload of unpunished crimes, the refusal of both populations to admit the victims of other side, and the unresolved missing persons’ issue (Radio Free Europe, 2016).

      The investigation process on the missing persons has stalled since 2015 totaling in four cases – the lowest annual figure cases since the end of fighting (ICRC, 2016). The UN Mission in Kosovo has been repeatedly criticized for failure to conduct effective investigations on the missing persons during and after the conflict and provide the relatives with information on the status of their cases thereby violating human rights of the victims and their families (UNMIK Human Rights Advisory Panel, 2012, 2016). The lack of capacities to pursue cases of missing persons, changing mandates and administrations, ineffective communication with the families of missing persons, and lack of institutional will from both sides of the conflict to deal with this issue, according to civil society, had been the major impediments rendering the UNMIK Missing Persons’ Office largely ineffective and dysfunctional (CRDP, 2014:47). The unresolved missing persons’ issue has been one of the main obstacles to reconciliation process in Kosovo, whereas in Bosnia, it caused affected families and friends to remain “locked in the past” and “unable to move on with their lives,” thus contributing to interethnic tensions and impeding reconciliation (Burema, 2012:14-4). For many families in Kosovo, finding the truth on their loved ones alongside with recognition, public apology, reparation, and sending war criminals to prison, is a precondition for peace and reconciliation (CRDP, 2012: 65).

“Justice can be achieved only when the fate of my husband is finally resolved and those who committed this crime are brought to the justice. Though my pain will be eased, even then, I will never be able to forget the suffering I have endured through all of these years” – Shukrije Shala from Drenica region/Kosovo. Her husband, Hafir, as I mentioned at the very beginning of this paper, was arrested by Serbia Security Service in 1998. He was tortured and then disappeared. He is still missing.

“I will never be able to forget what happened, but to forgive is human, because a person cannot live if she or he does not forgive. That would be too heavy burden to carry” – Fahrije Hoti from Krusha/Kosovo. She lost her husband along with 241 civilians who were massacred by Serbian forces in 1999. Her husband is still missing. (The Report of Kosovo Ambassador to the United States, Vlora Citaku, the UN Security Council, August 25, 2016).

When Hayner asked a Rwandans, who had lost seventeen members of his immediate family during the genocide in Rwanda in 1994, whether he wants to remember or forget the past, he answered: “We must remember what happened in order to keep it from happening again, but it is only by forgetting that we are able to go on.” But, while doing the study, the author comes to the conclusion that, “remembering is not easy, but forgetting may be impossible,” adding that “only by remembering, telling their story, and learning every last detail about what happened and who was responsible that were they able to begin to put the past behind them.” (2011:1-2) Some suggest to “burying the past” in order to move on, others to “digging into the past” to uncovering the truth in order to achieve peace and justice, meanwhile, finding a middle ground between the two, is almost impossible. Nevertheless, only by remembering and forgetting, as Minow argues, individuals and societies are able to “crucially shape the present and future” by tying together and distinguishing fragments of the past and present (1998:119-120). Additionally, public recognition of responsibility and reestablishment of justice do help societies to constructively deal with their violent past, (re)establish accountable and democratic institutions, as well as achieve reconciliation (Zupan, 2006:327).

        The survivors of sexual violence in Kosovo, is another group of victims that have been ignored, ostracized and – until recently – their status and rights were denied as victims of the war. Although, no official figures exist, it is supposed that over 20,000 Albanian women had been subject of sexual violence by the Yugoslav and Serbian police during the NATO bombing. The Human Rights Watch had identified 96 cases (Human Rights Watch, 2001:130). Despite a large file of statements documenting sexual violence provided by various organizations, UNMIK, as the monitoring organizations suggest, had never issued any war crimes or crimes against humanity cases involving charges of sexual violence. Moreover, this mission had made no efforts to adopt a gender-based and sexual violence approach (like in Sierra Leone), as it lacked the expertise and training in dealing with survivors of sexual violence (Amnesty International, 2008: 64). The identity of those who had testified against Milosevic as anonymous witnesses, on the other hand, though protected when at the Tribunal, was revealed back in Kosovo resulting in threatening to commit suicide if they return to Kosovo (Waters, 2013:245-246). In a total, three cases of sexual assault have been conducted – one by the ICTY based partially on the sexual assault, and two cases of prosecution by the EULEX (The Guardian, June 2015).

      The status and rights of the victims of the war are recognized with various international instruments; accordingly, they are entitled to various state beneficiaries and compensations. The UN Basic principles and guidance on the right to a remedy and reparation for victims provide five forms of reparation for victims of the war: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (General Assembly, 2006). Nonetheless, the victims of war in Kosovo are not yet provided with reparations measures despite the repeated calls of the human rights organizations directed to the UNMIK to take the appropriate steps towards the realization of a full and comprehensive reparation program (Amnesty International, 2009; UNMIK HRAP, 2016). On legal level, significant but partial steps have been undertaken since Kosovo gained independence. In 2011, the Parliament of Kosovo recognized the status of certain categories of the war by adopting the Law on the status and rights of various categories of civilian and non-civilian victims of war and their families, including the missing persons but not victims of sexual abuse (Kosovo Assembly, 2011). In 2014, however, Kosovo moved forward by recognizing the status of victims of sexual violence as the victims of the war (Kosovo Assembly, 2014). The law, however, is criticized of being discriminatory towards the victims’ payments and minority groups (CRDP, 2014:68).

·        The Special Court: “one-sided” and “partial,” yet the last resort to close the darkest chapter of Kosovo past

One cannot pretend to balance the magnitude of crimes committed by the Milosevic regime against Kosovo Albanians during the 1998-1999 with the violent attacks conducted by certain members of the Kosovo Liberation Army after the war, simply because these two are incomparable. Yet, looking on crimes ‘‘in the other direction,” as Gordy suggests, is essential for citizens of the former Yugoslavia to reach a consensus on their own responsibility during the past, and as such, move ahead with the reconciliation process (2013:6). An estimated 414 individuals belonging to minorities and Albanians labeled as Serbia collaborators were reportedly abducted and disappeared after the war in Kosovo (CRDP, 2014:57). In total, 800 individuals belonging to minorities, according to the human rights monitoring organizations, were abducted reportedly by the KLA members during and after the war (Amnesty International, 2009:8). As early as 2000, the former ICTY Prosecutor, Carla Del Ponte had asked the Security Council to amend the Tribunal’s statute, including the alleged crimes against humanity committed by the KLA members, saying that “what had happened in Kosovo after NATO and UNMIK deployment, was not a different kind of killing.” (O’Neill, 2002) Sebastian Junger, an American journalist assigned to cover the FBI pathologists’ examinations of war crimes for Kosovo at The Hague, however, has made a very clear distinction:

“…Serbian regular forces kidnapped a girl from a nearby town in Suva Reka, they raped her and cut her throat and left her naked in the tall grass to die. When we saw her she had been dead two weeks and was barely recognizable as a teenage girl, except that she wore bright red fingernail polish. It stood out grotesquely on her mummified hands. Barbarities of this kind have been ongoing on for thousands of years, but it was not until this century that a mechanized army carried out such crimes in the service of its government. That is genocide; the rest is just violence.

Likewise, UNMIK, is argued, had originally questioned the organized fashion of the KLA violence asserting that these incidents “were random and a spontaneous outburst of an aggrieved people against their former oppressors.” (O’Neill, 2002:62). The post-war violence eruption was mainly attributed to the failure of international actors to launch a forceful strategy at the outset of intervention, the absence of capacity and effective planning between international factors – KFOR, UNMIK and OSCE – including the ongoing difficulties of UNMIK to establishing itself as a credible force for law and order, and the slow deployment of international civilian police (Chesterman, 2001; Baskin, 2001). Moreover, the criminal acts of some KLA members, as others suggest, were purportedly tolerated by the international community to avoid the possible confrontations with its members and the anger of Albanian population; if happened, they argue, it could have been costly and dangerous, simultaneously (Hehir, 2015). A decade later, however, the issue of post-war killings and abductions in Kosovo aroused at the Council of Europe Parliamentary Assembly (CEPA) following the allegations of the Special Rapporteur of Parliamentary of Europe, Dick Marty. As such, the “violent acts” were qualified as “crimes against humanity” through a resolution endorsed by the CEPA in January 2011 (CEPA Resolution/1782/2011). Following this resolution, the European Union formed a Special Investigative Task Force (SITF) with a mandate to investigate the alleged crimes of illicit trafficking in human organs and the widespread human rights abuses committed by some KLA members after the conflict. After three years of investigations, the SIFT came to the conclusion that certain senior officials of the KLA had committed crimes against humanity primarily against minorities and Kosovo Albanians, but it dismissed the allegations on the nexus of the KLA with the systematic murders for the purpose of harvesting and trafficking human organs (SIFT, July 2014).     

      In August 2015, Kosovo institutions under the pressure of the United States and European Union, established a Special Court for war crimes in Kosovo with the mandate to “investigate allegations of crimes under international law, war crimes and crimes under Kosovo applicable law committed between January 1998 and December 2000.” The Special Court, according to the law, will operate within Kosovo justice system – with a seat in Kosovo and Netherlands – and will be composed of international judges and prosecutors (Kosovo Assembly, 2015). The establishment of such a mechanism has been justified under the fear that the Kosovo judiciary would be “unwilling or unable” to properly prosecute the high-ranking former KLA figures – some of them currently in power – and because of the incapacity of EULEX to perform this task (BIRN, August 2015). Unlike special courts of Sierra Leone and Lebanon created under the UN Security Council auspices with the jurisdiction to investigate crimes under international humanitarian law in Sierra Leone, respectively the terrorist crime against the president of Lebanon in 2005, the Special Court for Kosovo is created by Kosovo institutions and is perceived as a national mechanism.     

      The establishment of the Special Court has fuelled huge reactions amongst the political spectrum and Kosovo society. Kosovo institutions have publicly supported it arguing that the court enables Kosovo to “clear her name of war crimes allegations as well as shedding light to the truth.” (President of Kosovo, SRF TV Switzerland, 2016) The opposition parties, on the other hand, have rejected it arguing that the Special Court is “partial” and “one-sided” – directed against Albanians only – and it is a continuous attempt to balance Serbia systematic crimes with the right of Kosovo people to defend itself. Moreover, the Special Court, according to the opposition, diminishes the rights and the freedom of Kosovo citizens – guaranteed with the Constitution, and violates the sovereignty of Kosovo Assembly by creating a parallel system within the Kosovo justice system. Nevertheless, the Constitutional Court has dismissed such arguments by unanimously recalling that the proposed amendments of the Constitution (addition of Article 162) derive from the international agreement ratified between Kosovo and the European Union on April 2014, and are compliant to Kosovo obligations in relation to the Report of CEPA, too (Kosovo Constitutional Court, 2015).

      Kosovo analysts, on the other hand, have provided antagonistic views. For some, the Special Court manifests an “intrusion” of the outside forces within Kosovo justice system creating a separate legal order; at the same time, through this act, Kosovo partially submitted its sovereignty regarding international agreements to an outside body (the European Union) – out of any contractual agreement. Moreover, the establishment of this court, they argue, recognizes the failure of the international mechanisms and Kosovo institutions to deal with the alleged crimes raised by the Council of Europe (Koha Ditore, August 2015). Others, however, have opposed such claims arguing that the Special Court reaffirms the sovereignty of Kosovo as an independent state; a subject to the international law and international relations; and capable of fulfilling international obligations as a sovereign state (Koha Ditore, July 2015). One important thing that this court must achieve, as Hehir suggests, is to acknowledge “the extent to which international actors tacitly, and at times overtly, supported the growth of the violent criminal network in Kosovo” by isolating the perpetrators from the enabling environment they operated while obscuring the role of international community in committing of these crimes (Justice in Conflict, 2015).

      Generally, the majority of Kosovo populations, including Albanians, Serbs and other minorities, according to a survey conducted by the UNDP in 2012, support the establishment of transitional mechanisms agreeing that for justice to be served all perpetrators should be punished for crimes they had committed. The absolute majority of all communities support finding the truth on missing persons regardless of their nationality (2012). The Special Court expects to start working by the end of this year when the first indictments are expected to be published. Some media speculated that the newly-elected President, Hashim Thaci could be one of the accused persons (AFP, March 2016). This possibility has not been denied by the Special Prosecutor of the Task Force, David Schwendiman, though. “Nobody, including the President of Kosovo has immunity of criminal investigation for war crimes and his election cannot influence the investigations of the SIFT.” (Insajderi, 2016) According to the Article 14 of the Law on the Special Court, “the official position of any accused person, including the Head of State or Government, shall not relieve such person of criminal responsibility nor mitigate punishment.” (Kosovo Assembly, 2015).  

      Currently, as media in Serbia reported, EULEX is carrying out investigations in nine countries where are supposed to be dislocated victims who will provide testimonies against the KLA alleged crimes. It is reported that over 400 individuals have already submitted their testimonies, but it is most likely that about 30 of them, will testify before the court at the end (Balkans Open Report, 2016). The protection of the witnesses, assembling strong enough evidence and obtaining a full cooperation with Kosovo judiciary institutions are the major challenges that the new court will be faced with.[3] The weak witnesses’ protection program has been another major issue that has hampered the justice in Kosovo. Though, the Kosovo Witnesses Protection Law (2012) provides for a range of protection measures for witnesses, before, during and after criminal proceeding, the protection witness system, according to the monitoring organizations, has been “woefully inadequate.” (Amnesty International, 2012:5) The implementation of the Law is reported to be difficult in practice because of the high costs and the failure of judges and prosecutors to use the existing protective measures available in courtrooms (CRDP, 2013). 

·       Conclusion and Recommendations

This article explored and analyzed the international approaches to transitional justice in Kosovo and argued that international community failed to deal with transitional justice issues – peculiarly in fighting impunity and restoring justice to victims under justifications – to preserving peace and stability on Kosovo. Shukrije and Fahrije have been waiting for so long to find the truth on their loved ones, receiving justice, or at least, to have a tomb with a name when they can pray, cry and heal their spirit. Regretfully, justice in Kosovo remains an “unfinished business,” with a potential of negative implications to peace and reconciliation amongst the ethnic groups. One cannot predict how things would have gone if Kosovo had pursued a different direction, such as creating a special court immediately after the war, including the involvement of local actors in the process and development of a strategy on war crimes; however, it is a common thinking that the establishment of a judiciary – together with the civilian police force – is a key component in establishing peace and “normalcy” in a complex emergency situation, such as Kosovo (Baskin, 2001; Strohmeyer, 2001). An effective and successful democratic transition, as Marshall& Inglis highlight, requires a coherent approach to criminal justice reform and continuous engagement of the international community to ensuring that respect for human rights takes hold. “In this respect, UNMIK had failed.” (2003:96) What has been learned from the international experience in Kosovo, according to Hartman, is that “successful international intervention in the judicial arena should be immediate and bold, rather than incremental and crisis-driven.” (2003:2)

      In the future enterprises, international mechanisms and Kosovo institutions should adopt a comprehensive approach to transitional justice by incorporating both retributive and restorative mechanisms. Efforts must be victim-centered focusing on victims and the affected communities, accompanied with a comprehensive national consultation process with victims and their representatives, including minorities. Additionally, the process must be inclusive and gender-based sensitive, as assigned on the Ahtisaari Proposal and other international documents. Furthermore, international mechanisms, UNMIK and EULEX, in cooperation with Kosovo institutions, should take the appropriate steps for the realization of a full and comprehensive reparation program. A parallel interaction of top-down and bottom-up agendas – with leaders and grassroots organizations filling up instead of confronting each other is crucial for reconciliation process (Bloomfield, 2006). The engagement of civil society actors must be central alongside state–led efforts as they help to overcome the ethno-nationalist entanglements in Kosovo and compensate the inability of international justice mechanisms to deliver justice and truth to victims (Andreiu, 2010b; Visoka, 2016).

      In Kosovo, the Center for Research, Documentation and Publication (CRDP), is a leader of transitional justice and a member of the Regional Commission for Truth-seeking and Truth-telling about War Crimes in the Former Yugoslavia (RECOM), a regional group of civil society organizations and individuals that advocates for the establishment of a regional truth commission (RECOM Statute). The Center for Research, Documentation and Publication (CRDP) applies a victim-centered approach; through national consultations with civil society and victims’ associations, the organization achieved to cultivate strong relationships and generate a critical debate among all communities (CRDP, 2012). The RECOM, on the other hand, is still opposed – by both Albanians and Serbs victims and human rights activists; Albanians demand an official acknowledgement of ethnic cleansing and/or extermination during the Milosevic era as a precondition to reconciliation, whereas for Serbs, the recognition of their continuing role as victims (De Lellio & McCurn, 2013:131). Moreover, the civil society actors are skeptical that this organization would lead to gains in terms of truth and justice for the victims (Fischer & Petrovic-Ziemer, 2013).   

      Most importantly, transitional justice processes and programs should be nationally-owned and nationally-led. International community should aim at building long–term and sustainable solutions to impunity by strengthening the domestic capacity, as the domestic justice should be the first resort in pursuit of accountability, as the UN Secretary -General, Ban Ki-Moon highlighted. Initiatives should be underpinned by a clear political commitment of Kosovo institutions to accountability, a clear strategy that addresses the challenges of the process, the necessary capacity and technical ability to investigate such crimes, and ensuring adequate protection of witnesses (OHCHR, 2006). Furthermore, Kosovo institutions and EULEX should provide an effective and strong witness protection programs, including means of witness relocation and provide adequate resources to protecting and securing witnesses. Lastly, outreach and communication is a condition for success of international and national courts both in engaging populations to acquire their cooperation and ensure the impact and legacy of international courts and tribunals in the countries affected by crimes.

[1] Hafir Shala, a doctor, humanist, and political activist, was arrested on April 1998 while travelling to Prishtina to take medical supplies. Personally, I searched for him to the relevant authorities in Kosovo, including the ICRC and the War Crime Prosecutor’s Office of Serbia where I met the Deputy Chief Prosecutor, Bruno Vekaric who said that he could do anything regarding my uncle’s whereabouts since as he said, this is a political issue. The Government of Serbia, as he said, is the only authority in charge to provide information on my uncle as well as arrest the perpetrators – whose names are known for public but not their whereabouts.

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