Will contested Kosovo tribunal ever get off the ground?

Will contested Kosovo tribunal ever get off the ground?©ARMEND NIMANI / POOL / AFP
Kosovo's new President Hashim Thaci delivers a speech during the Presidential inauguration ceremony in Pristina on April 8, 2016. He has now come out in opposition to the Kosovo tribunal.
4 min 25Approximate reading time

Is the Kosovo war crimes tribunal dead before it even begins? Parliamentarians close to the country’s President and Prime Minister are trying to sabotage it. Meanwhile Switzerland has granted it funding support.

In January 2018, Switzerland granted funding of 200,000 francs (181,200 euros) to the tribunal charged with shedding light on war crimes committed in Kosovo between 1998 and 2000, particularly the disappearance of 500 mainly Serb civilians in the context of conflict between separatists and Serb forces plus a NATO military intervention. But numerous parliamentarians from the party in power in Pristina remain determined to put an end to this new tribunal which could threaten key people in power who were commanders of the former rebel movement UCK.

So Switzerland’s support is more important for the political message it sends than the amount of the funding. Ekaterina Trendafilova, president of the tribunal, understood this when she said the money will help “to disseminate knowledge and information to the general public about the mandate and work of the Specialist Chambers”. The Swiss donation will be welcome given that on December 22 the tribunal was close to being killed off by the parliament in Pristina, and new attempts cannot be ruled out. Even if the tribunal survives, its capacity to carry out its mandate appears very uncertain. New moves are afoot to hamper its work, including plans to set up a Truth Commission with a mandate that would  undercut the tribunal’s.

Let us remember what happened. International justice left a taste of things unfinished in the Balkans, especially in Serb society. The International Criminal Tribunal for the former Yugoslavia (ICTY) closed its doors in December 2017 after working for nearly 24 years, but its work on crimes committed by members of the Kosovo Liberation Army (UCK) was a failure and tarnished its legacy. The current Prime Minister of Kosovo, Ramush Haradinaj, was twice acquitted by the ICTY, partly because witnesses were intimidated, failing to testify or meeting a premature death. Unease increased with the publication in December 2010 of Swiss Senator Dick Marty’s explosive report to the Council of Europe accusing UCK leaders, including current Head of State Hashim Thaçi, of war crimes and links to trafficking of human organs taken from Serb prisoners.

Western pressure

It was under such conditions that the European Union (EU) and the United States put pressure on Kosovo in 2015 to change its Constitution and create an unprecedented judicial mechanism dreamed up by fertile EU brains in Brussels: a tribunal that would be officially part of the Kosovo judicial system but based in The Hague, presided by a Bulgarian judge and whose investigations would be conducted by an American prosecutor. This convoluted formula was aimed at squaring the circle: by creating a Kosovo tribunal without Kosovars, for fear that it would be infiltrated and manipulated by elements linked to the former rebels, the aim was to deliver justice to the victims of the UCK, both Serbs and Kosovars, which the ICTY had proven unable to do. The formula is also meant to avoid setting up a new UN tribunal where Russia would be an interested party.

The first attack on the tribunal came when the diplomats of the European Union left Pristina to spend Christmas at home. Late on Friday December 22, at the request of 43 parliamentarians led by Nait Hasani of the Kosovo Democratic Party (in power), the president of the Pristina parliament called on MPs to scrap the article of the Constitution that had created the tribunal. That did not happen in the end, but a new attempt could soon be launched. All the more so since the country’s president Hashim Thaçi, himself a former UCK commander, has said that if parliament votes such a law, he would now sign the abrogation of this Constitutional article whereas before, under Western pressure, he had urged parliament to approve it in 2015.

Politicians threatened

The tribunal could issue indictments against former commanders of the UCK, and could even target Hashim Thaçi (accused by name in the Marty report), as well as Prime Minister Ramush Haradinaj and his brother, also ex-leaders of the rebellion. Those that want to scrap the tribunal see it as biased because it basically targets the perpetrators of crimes linked to the former rebel movement now in power in Pristina, “forgetting” that the ICTY never managed to do that. “The Special Tribunal is and remains unacceptable for Kosovo,” declared MP Nait Hasani. “This is a political court aimed at sanctioning only soldiers of the Kosovo Liberation Army for presumed war crimes.” Prime Minister Ramush Haradinay said he was against the tribunal when he was in opposition and has not changed his mind. As for his brother, Daut Haradinay, he has warned that the first tribunal arrest warrant will meet opposition from the former rebels.

These statements are unacceptable to European countries and the United States, which through the NATO military intervention in 1999 participated in the “liberation” of Kosovo, opening the door for its independence in 2008. In a statement, the EU issued a warning to Pristina, saying that any attempt to repeal or amend the mandate of the Specialist Chambers seriously undermines Kosovo’s commitment and would “adversely impact Kosovo relations with the EU”. The quintet (US, Germany, France, UK and Italy) also expressed concern that Hashim Thaçi accorded presidential pardons on December 29, 2017 to three individuals convicted of murdering a family (the Hajra case), including two young girls of 3 and 9, whose father served as a policeman under Milosevic regime. Even more direct, according to Pristina newspaper Koha Ditore, US diplomat Stephen Banks warned Prime Minister Ramush Haradinaj that if the tribunal were scrapped, the US would not oppose a Russian initiative at the UN Security Council to set up a similar one.

A Truth Commission to short-circuit the tribunal

The Kosovo authorities also have another, less obvious plan to complicate the task of the special tribunal. In February 2017, President Hashim Thaçi unveiled his idea to create a Truth and Reconciliation Commission. “Kosovo cannot build a good future if it remains a hostage to its past,” he said. Nice words, but many are worried about this initiative, which they see as a non-judicial instrument aimed at whitewashing the crimes committed by members of the former rebellion and promoting amnesty, undermining the Tribunal. It would not be the first time in the Balkans that a political leader tried to use a Truth and Reconciliation Commission to short-circuit the work of a criminal court. In 2001-2002, Serb President Vojislav Kostunica tried this to weaken the ICTY, but that Commission was never credible and was quickly dismantled.

So without having yet issued a single indictment, the special Tribunal faces huge obstacles. To what extent will it be able to carry out investigations and protect witnesses, which the ICTY proved incapable of doing? How will it get people arrested? Dick Marty, whose report triggered this tribunal, stated a few months ago without illusion: “Who, in these circumstances, would be mad enough to testify 20 years after the events? Many witnesses have already been assassinated.”