By Peter Tase
In early February 2021, I had the pleasure to interview Kosovo’s distinguished university Professor of Law Kolë Krasniqi. In our conversation we discussed about the current judicial system in Kosovo and the consequences of War Crimes in this Balkan country. In this dialogue, Prof. Krasniqi tackles, explains the mandate to investigate war crimes, that was the exclusive prerogative of UNMIK prosecutors, and of the European Union Rule of Law Mission, EULEX. It must be emphasized that after the transfer of these special competencies, despite of the establishment of the Prosecution and the Special Court, the EULEX mission has transferred to the competence of the War Crimes Department in the office of Kosovo’s Prosecutor General about 900 war crime cases and about two thousand cases for persons missing during the war in Kosovo. The following is a historic introduction and a summary of my discussion with Professor Kolë Krasniqi.
Kosovo lies in the center of the Balkan Peninsula and has a territorial area of 10,880 square km and a population of over 1.8 million inhabitants. The majority of Kosovo’s population is ethnic Albanian, while other communities are Serbs, Bosnians, Roma, Ashkali and Balkan Egyptians, Turkish communities, Gorani people and others.
In the historical past, the territory of Kosovo was called “Dardani”, after the name of the Illyrian tribe “Dardanë” who lived in these lands. According to historical sources, in the IV century BC there was created the “Dardanian Kingdom” that was expanded through the territory of present-day Kosovo and some surrounding regions.
At the end of the first century BC, Dardania was conquered by Rome. Then in the IX century was also conquered by the Bulgarian Empire. Later Dardania, respectively Kosovo was occupied by Serbs, whose rulers after establishing the Serbian Empire in 1346, turned Kosovo into a central component of their state. This fact and the presence of the Serbian-Orthodox population in the region have always been used as a basis for propagating the Serbian occupation aspirations as if Kosovo were and is the cradle of their civilization.
After the vicious 500 years long Ottoman occupation, in 1912, the Serbian and Montenegrin armies re-occupied the territory of Kosovo. During World War I, although Albanians fought alongside the Allied forces, the Versailles Peace Conference enabled the reconquest of Kosovo by the Serbo-Croatian-Slovenian Kingdom, later called Yugoslavia.
The return of Serbian forces to Kosovo during the first Balkan War in 1912 and after the First World War made possible and influenced the organization of some resistance and armed uprisings of the Albanian population, that were extinguished with bloody offensives by Serbian forces.
At the end of the Second World War, the Albanian communist forces, following the German troops that had begun to withdraw from the Balkans, had entered the territory of Kosovo. However, after the war, the Albanian partisan brigades withdrew from Kosovo and thus enabled its re-annexation by Serbia – as a republic of the Yugoslav Federation. The return of the Serbian communist army to Kosovo met with armed resistance from Albanians, which resulted in the killing of about 20,000 civilians.
After the death of the President of Yugoslavia, Josip Broz Tito in 1980, intensive Serbian efforts began to suspend some of the rights of Albanian population in the Yugoslav federation. These Serbian attempts influenced the mass organization of demonstrations by Albanian population in 1981, when the proclamation of Kosovo as a Republic within the Yugoslav Federation was demanded. These protests of Albanians continued during other subsequent years that resulted in mass imprisonment and enigmatic slayings of Albanian political activists.
In 1989, Serbian nationalists, led by new Serbian President Slobodan Milošević, staged a conspiracy against Kosovo’s autonomy. Accusing Albanians of discriminating Serbian communities in Kosovo and thus influencing, pressuring their relocation to Serbia, extraordinary measures were imposed by removing Albanian students from schools and universities and suspending Albanian workers and officials from all public institutions across the country.
After the installation of a hegemonic and dictatorial Serbian government, on July 2nd, 1990, the Albanian deputies of the then Assembly of Kosovo, proclaimed the “Declaration of Independence”, respectively of the Republic of Kosovo, as an equal unit within other republics in the Yugoslav Federation. Two months later, the Assembly of Kosovo approved the Constitution of Kosovo, according to which state institutions that operated in other countries (emigration) or as parallel structures in Kosovo began to be established.
In such circumstances, characterized by extreme interethnic and political tensions, in October 1991, an all-popular referendum was organized that declared Kosovo an independent and sovereign state. From this year onward began the planned organization of a peaceful resistance against the brutal Serbian regime in Kosovo.
The beginning of Armed Conflict
The suppression of political autonomy in 1989 and the installation of a Serbian hegemonic dictatorship in Kosovo, influenced the organization of mass protests of Albanians in all cities of Kosovo. After the brutal suppression of these protests, the Albanians became convinced that only armed resistance could change their aggravated situation. Thus some young Albanians began to organize in order to start the armed uprising. Albania also played an important role in this regard, which after the recognition of the self-proclaimed state of Kosovo, enabled some Kosovar organized groups in the Albanian territory to be trained in the use of weapons and the development of extensive armed uprising. After completing these trainings, some “young fighters” returned to Kosovo and began successful armed attacks against Serbian military targets in Kosovo. Thus, on April 22nd 1996, four armed attacks were carried out against Serbian police stations in several locations in Kosovo. The responsibility for these attacks – where 5 Serbs were killed – was taken by the organization called “Kosovo Liberation Army” (KLA), that was unknown at that time.(1)
After this armed attack, the Serbian regime, under the pretext of fighting “Albanian terrorists”, intensified state terror by killing, arbitrarily imprisoning, torturing, looting and systematically destroying the homes and property of the vulnerable Albanian population. In some cases, horrific massacres were carried out. Thus, in March 1998, Serbian forces massacred about 50 members of the Jashari family in Drenica. On January 15th, 1999, in the village of Reçak, 45 unarmed Albanians were massacred. On March 26th, 1999, over 221 residents were killed and burned in the village of Krusha e Madhe. Two days later, Serbian forces brutally killed and massacred 147 unarmed Albanians in the village of Izbica. On April 27th, 1999, there were tortured and killed 372 Albanian women, children and men aged 14 to 60, in Mejë, region of Gjakova.
The practice of systematic violence against the Albanian population was undoubtedly part of an operational plan aimed at the mass displacement, ethnic cleansing of Albanians from Kosovo through the exercise of violence and terror against them. Those refugees bearing the stamp from Kosovo went through a brutal treatment from Serbian police and their identification plates were confiscated from their cars before they crossed the border, in order to prevent their eventual return to Kosovo.
The Serbian extermination offensives against the KLA, accompanied by the deliberate killing and massacre of the vulnerable civilian population and their mass expulsion from Kosovo, have been deeply felt in the internationalization of the war in Kosovo. The international humanitarian intervention, in February 1999, initially led to the organization of the Peace Conference in Rambouillet, France, that was signed only by the Albanian side. During this conference, Serbian authorities undertook extensive military operations aimed at ethnic cleansing by expelling about 1 million Albanians from Kosovo.
The humanitarian crisis of biblical proportions in Kosovo, influenced the decision for the North Atlantic Treaty Organization (NATO) to undertake a military intervention, an operation that after 73 days of airstrikes on Belgrade’s military targets, forced the Serbian forces to accept the capitulation and according to the Kumanovo Agreement the Serbian Troops were forced to withdraw from Kosovo.
Pretended crimes in War Time Kosovo and their Trial
During the period of 1998 and 1999, Serbian and Yugoslav forces committed a host of war crimes, crimes against humanity and other serious crimes under international law, characterized by mass killings of civilians, forced displacement of civilians, illegal imprisonment and torture, sexual violence, robbery and destruction of property.
It seems that violations of international humanitarian law have been committed not only by Serbian forces in Kosovo but also by Albanian insurgents, who are suspected of having in some cases carried out kidnappings and retaliatory killings of members of the Serbian community and their ideological opponents.
Some war crimes in Kosovo have also been investigated and tried by the International Criminal Tribunal for the former Yugoslavia, which was established in 1993 (at a time when civil war was still raging in Croatia and Bosnia and Herzegovina). The jurisdiction of this court was also the processing of war crimes’ cases in Kosovo. Therefore, the International Criminal Tribunal for the former Yugoslavia convicted for serious violations of international humanitarian law in Kosovo, the former Yugoslav Deputy Prime Minister Nikola Sainovic, former Yugoslav General Nebojsa Pavkovic, Serbian Police General Sreten Lukic, General Vladimir Lazarevic, Serbian Armed Forces Chief of Staff Dragoljub Ojdanic and Vlastimir Ðordevic, Chief of the Public Security Office at the Serbian Ministry of Interior, and others.
In fact, the War Crimes Tribunal in the former Yugoslavia had indicted several former KLA commanders, such as Fatmir Limaj, Isak Musliu, Haradin Bala, Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, of whom only Haradin Bala was convicted and others were acquitted.
In December 2017, the International Criminal Tribunal for the former Yugoslavia, concluded its mission as an “ad-hock” court without prosecuting all of the alleged crimes that may have occurred in Kosovo during 1999 – 2000. In reality these crimes were investigated by the United Nations administration – UNMIK, that was installed in Kosovo in 1999 under the UN Security Council Resolution 1244. Then also the European Union Rule of Law Mission in Kosovo (EULEX) installed in Kosovo (in parallel with the declaration of independence) in 2008, a court system assigned to investigate war crimes.
Consequently, since the end of the war in Kosovo until now, there are 118 individuals suspected of violating international humanitarian law and for committing various war crimes in Kosovo and have been investigated by UNMIK courts, EULEX and local courts. At the end 41 suspects have been acquitted, 41 defendants have been convicted and 8 other cases are being investigated or court proceedings have started.(2)
In fact, Kosovo Prosecutor’s Office in June 2018 took over the mandate to investigate war crimes, that was the exclusive prerogative of UNMIK prosecutors, and of the European Union Rule of Law Mission, EULEX. After the transfer of these competencies, the EULEX mission, despite of the establishment of the Prosecution and the Special Court, has transferred to the competence of the War Crimes Department in the office of Kosovo’s Prosecutor General about 900 war crime cases and about two thousand cases for persons missing during the war in Kosovo.(3)
Establishment of Special Court and Specialized Prosecutor
In December 2010, the Council of Europe approved a groundless report on “inhuman treatment and organ trafficking” in Kosovo, entitled the “Dick Marty Report”. Following the adoption of this report, in September 2011, the European Union established the Special Task Force to independently investigate the allegations raised in this report on war crimes in Kosovo. In 2014, the Special Task Force reported that there was sufficient evidence of crimes against humanity and war crimes in Kosovo and proposed the establishment of an adequate institution to investigate and prosecute crimes against humanity and war crimes in Kosovo.
Following the publication of this report, various negotiations took place between Kosovo and the European Union as well as the United States to find a framework regarding the establishment of an adequate mechanism that would investigate and clarify the allegations raised by Senator Dick Marty’s report.
As a result of these negotiations, on August 3rd, 2015, the National Assembly of Kosovo adopted the necessary constitutional amendments and the Law on Specialized Chambers and the Office of the Specialized Prosecutor. (4)
According to this law and the approved constitutional amendment “Specialized Chambers and the Office of the Specialized Prosecutor may have headquarters in Kosovo and abroad and can exercise investigative functions in their headquarters or elsewhere, as needed.(5)
After the creation of this legal framework, the President of Kosovo has exchanged letters with the High Representative of the European Union, through which he has allowed the establishment of the Special Prosecutor and the Special Court. In this regard, in 2016 Kosovo and the Netherlands reached an agreement on the establishment of the Specialized Prosecutor’s Office and the Specialized Chambers of the Basic Court, the Court of Appeals, the Supreme Court and the Constitutional Court as part of the jurisdiction of Kosovo, in The Netherlands.
Undoubtedly, the establishment of the Special Court and the punishment of the perpetrators of war crimes is not only a simple prevalence of justice for the victims of war but also an opportunity to overcome old enmities and establish a lasting peace in the Western Balkans.
Efforts to Change the Law on Special Chambers
During the period of 2016 – 2017, the Specialized Prosecutor’s Office and the Special Court undertook a series of activities related to their functioning, recruitment of judges, responsibility of prosecutors and the necessary support staff, who will operate under the laws of Kosovo in The Hague. No Kosovo member or prosecutor has been elected in any of these institutions. Defense lawyers who can represent victims or protect their clients were also accredited before the Special Court.
After the start of the Special Court’s activities, in December 2017, some veterans of the former KLA war, organized the signing of a petition through which the National Assembly of Kosovo was asked to change, respectively to repeal the law on Specialized Chambers for War Crimes in Kosovo, based on the grounds that the Special Court should also deal with crimes committed by Serbs, and not only with the investigation of suspects with Albanian ethnicity.(6)
According to this petition signed by 10 thousand citizens, was presented the request of 43 deputies of the National Assembly of Kosovo was submitted for the amendment of the Law on Specialized Chambers, respectively for the abrogation of this law and the unilateral withdrawal of Kosovo from the international agreements reached until now. (7)
However, this request submitted in December 2017, was not processed twice in a row due to the “lack of quorum”, by the Presidency of the National Assembly of Kosovo. For this reason, the Presidency of the Assembly, according to its rules of procedure, had delegated to the Government of Kosovo for evaluation the amendment to Law on Specialized Chambers submitted by 43 deputies in the National Assembly. (8)
Following this propensity, the international authorities express their critical stance towards the coordinated initiatives for the abolition of the special court. Thus, in January 2018, the U. S. Ambassador to Kosovo, Mr. Gregory Delawie, has informed the Government of Kosovo that the attempt to abolish the special court “is a terrible example of putting personal interests above the general good and the interests of Kosovo as a state.” According to the US Ambassador, “those Deputies that support this initiative and politicians that are leading it secretly, despite their denial, will be subject to severe consequences”. (9)
Moreover, senior officials of the European Parliament, the Council of Europe and representatives of the Five EU states reacted in a similar tone. As a result, Mr. Igor Sholtes, had stated that “the EU mission in Kosovo and the Quint states have expressed deep dissatisfaction, concern, with the idea of repealing the law on the Special Court …, such a decision would be a step backwards for Kosovo …, it would be contrary to the principle of the rule of law and would shake the international credibility of Kosovo …, would jeopardize the progress achieved in Kosovo …and would further isolate Kosovo.(10)
Following these international reactions, in November 2019, President Thaçi asked the United States Secretary of State, Mike Pompeo, for Washington to influence towards the potential change of the mandate of the Special Court. But even this request was strongly opposed by the US administration, emphasizing the continued, unwavering US support for the Special Court. (11)
After the concoction of these official efforts to abolish the Special Prosecution Office and the Special Court, illegal efforts began to compromise the credibility of these Kosovar institutions by disseminating and publishing sensitive data from the Prosecution and the Special Court offices.
Therefore, in September 2020, an “anonymous person” brought in front of the door of the Organization of KLA War Veterans in Prishtina, over four thousand files of the Special Court, which also contained the names and addresses of witnesses and other persons that have cooperated with Special Court investigators.(12) There is no doubt that the publication about the announcement that the KLA War Veterans Organization possesses files and other classified data has caused the extinction and uncertainty among potential witnesses.
Interviews with suspects and mysterious death of witnesses
In recent years, the Special Prosecution and the Special Court have intensified their work. In 2019 alone, about 200 former KLA soldiers were interviewed by international prosecutors of the Specialized Chambers.(13) A considerable number of them was invited as witnesses of war crimes. Undoubtedly, giving evidence of war crimes is a very unpleasant and very traumatic process for Kosovars. The decision to appear as a witness for war crimes in the “Hague Tribunal” is also dangerous, because certain people, before giving their testimony in court, have had tragic consequences and even died.
Therefore in 2004, in Montenegro, died in a traffic accident, a witness with initials “K. B.” In 2011, a “Witness X” enigmatically died in Duisburg, Germany. In December 2019, near Lake Badovc, another witness with initials N. Rr. was shot dead. In February 2020, near the city of Peja, was killed and burned in his car a citizen with initials “Q. K.”. In January 2021, also at Lake Badovc, a witness with name initials “F. S.” was found dead.
It is certain that these enigmatic murders or deaths are causing fear and confusion among potential witnesses of war crimes in Kosovo. On the other hand, the Special Court did not provide sufficient measures for the protection of witnesses, especially after giving evidence and returning them from The Hague to Kosovo. Even the opportunity offered to change the voice and appearance of witnesses while giving their testimony in court, as well as the promise of the prosecution and court authorities to not mention the names of witnesses, has not been enough to urge witnesses to testify in court and ensure their security.
For these reasons, witness protection remains a major challenge for the Special Court, as many previous war crimes trials in Kosovo or the International Criminal Tribunal for the former Yugoslavia (ICTY) have tragically failed as a result of enigmatic death or intimidation exerted towards key witnesses for giving their testimony in court.
In the interest of enduring political stability in the Western Balkans and the establishment of justice for the victims, all alleged war crimes in Kosovo must be investigated and tried with objectivity and impartiality.
The establishment of the Specialized Prosecutor’s Office and of the Special Court for War Crimes in Kosovo has been accompanied by harsh criticism and various challenges from local – national actors, who have requested the suspension of this court and the transfer of its powers to investigate and prosecute alleged crimes of war, to the prosecution and local courts in Kosovo, on the grounds that this court is biased, that it is only investigating KLA fighters, that the KLA has been a victim and not a perpetrator of international criminal offenses, that KLA fighters did not attack but defended their own people, that in a defensive war, presumed war crimes could not be committed.
Despite of these criticisms and tendencies to dissolve the Special Court, the prevailing belief is that this Kosovar court structure is operating far from the place where the crimes were committed, away from the interested communities and affected parties; despite the fact that there is no Kosovar judge, it will fulfill its mission honestly and objectivity according to international standards.
The reality in the ground is tarnished, local justice institutions operating in Kosovo have often been criticized by competent international mechanisms for ethnic bias, traffic of influence, clannism and political influence. In many cases, the unprofessionalism of prosecutors in preparing charges is noticed, which is often reflected as heavily biased. In recent years, the lack of reliable cooperation among Kosovo’s justice institutions with international partners has been noted. All these matters, especially the intimidation of witnesses and their enigmatic deaths, have damaged the image of Kosovo justice system and the decision of the Specialized Prosecutor’s Office and the Chambers of the Special Court for War Crimes, as institutions of justice for Kosovars, to operate “in emigration”.
Despite the establishment of the headquarters of the Specialized Prosecutor’s Office and the Chambers of the Special Court in The Hague, Kosovo government authorities must provide the necessary support in order to ensure the smooth conduct of investigations and the prompt and fair conclusion of the ongoing judicial proceedings in The Hague.
- Enika Abazi: Çështja e Kosovës dhe Diplomacia Ndërkombëtare (1991-1999): Një konflikt i parashikueshëm, Studime Historike 3-4, Tiranë 2013, pp. 205.
- Ligji Nr. 05/L -053, https://www.scp-ks.org/sites/default/files/public/05-l-053_sh.pdf
- Neni 162 paragrafi 7 i Kushtetutës se Republikës së Kosovës, https://gzk.rks-gov.net/ActDetail.aspx?ActID=10997
- This is the statement of War Veterans Organization of KLA, in a press conference: for more information, https://www.dw.com/sq/dosje-të-gjykatës-speciale-në-duar-të-veteranëve-të-uçk-së/a-54877139