Perspectives | Transitional Justice

Is inclusive development possible without collective therapy?

By - 11.04.2020

The collective trauma from the bitter past with Serbia will not leave us, even during the pandemic.

Only five years after the 1999 war, interethnic tensions in Kosovo resurfaced. All it took for the hostilities to start — dozens of lives were lost and hundreds of monuments and homes were burned to the ground — was the reckless and inflammatory media reporting about the drowning of three children in the Ibar river in March 2004.The citizens were exhausted by the consequences of war and outraged by the uncertainty about Kosovo’s final status.

Although these riots may seem distant and not likely to repeat, sometimes all it takes to incite interethnic tensions in Kosovo is a wedding during the pandemic, provocative and distorted media reporting, a general fatigue and confusion, as well as a lot of uncertainty about the interests of Albanian and Serbian political leaders.

It seems, after dealing with the COVID-19 pandemic crisis, we will surely have to face other realities of our society, particularly regarding the past.

Isolation does not work

Throughout the years, consecutive governments have left the situation to grow exceedingly complicated; recently, statements and contradictory actions by political leaders are making this reality more obvious than ever.

Until now, very basic issues have been completely left out of the dialogue: Serbia’s denial of crimes, judicial cooperation for the extradition of war crime suspects, war reparations, material damage, responsibility for post-war crimes and other existential differences between both parties.The victims of the Kosovo war were discussed only minimally and superficially by all sides.  

During the pre-election campaign, the two primary figures of the (now ousted) governing coalition, Assembly Speaker Vjosa Osmani and Prime Minister Albin Kurti, have both emphasized the need to condition the dialogue in Brussels to include the issue of Kosovo war victims.They have proposed other conditions, such as opening the archives to find the remains of missing persons, the issue of war reparations, secession and they have promised an internal dialogue with Kosovo Serbs.

Following the political developments that accompanied the overthrow of the government, we are now in a whirlpool of collective uncertainty about Kosovo’s institutional future. However, the ongoing discourse on territorial exchange is once again showing how central the confrontation with the past should be in the next government’s program.

Treatment begins with education based on facts

One potential therapy for Kosovo would start with education that dealt with the past.It would continue with the inclusion and equal treatment of all groups of victims, practical progress regarding policies and initiatives for legal cooperation between Kosovo and Serbia, as well as with seeking the truth about the recent war in Kosovo.

The average age in Kosovo is 25.9 years and 70% of the population is under 30 years of age. Young people of different ethnicities, especially those born after the war in Kosovo, are almost completely isolated from each other, both formally and socially. In addition to the minimal contact they have with one another, they are subject to contradictory and hostile narratives about each other.

Serbs in northern Kosovo use textbooks and curricula provided by Belgrade that deny war crimes in Kosovo. The few sections that talk about the war in Kosovo only include the so-called “NATO aggression” and list between 1,200 and 2,500 civil victims killed during the NATO bombing campaign, without mentioning the victims that died at the hands of Serbian forces.

A history book that is used in most Kosovar schools (left) and a history book used in the north of the country (right). The Serbian text says: “In February 2000, FRY sent a letter to the UN Security Council where it accused the UN Mission in Kosmet (Kosovo and Metohija) of undermining the situation and violating Resolution 1244, stating that — since the beginning of KFOR's mandate — there had been 4,249 terrorist attacks, while 899 people had been killed, 784 wounded and 834 kidnapped. The Albanian text says: “During the NATO bombing campaign, the Serbian army killed almost 15,000 Albanians. Over 3,000 were lost without a trace, and 5,000 people were taken hostage and sent to Serbia.” Photo: Atdhe Mulla / K2.0.

Albanians in the rest of the country are educated through a narrative and epic description of the war. There is a void regarding the post-war killings of minorities— there are even cases of misinterpretation or hyperbolization of the number of Albanian victims during the war. Both of these diametrically opposed narratives are employed in schools within Kosovo.

The next government should initially intensify action to urgently devise textbooks that are uniform across all schools.They should display the documented reality of the war both in Albanian and in Serbian, avoiding literary symbolism and emotional interpretations.

If this seems impossible, then another possibility is to display both interpretations in a single textbook in order to illustrate how history depends on the perspectives of each side.If the second option is chosen, it needs to be done with particular care and for illustrative reasons only and not to credit one narrative or the other.

Where do we stand on the legal aspects?

When we move from education to inclusivity and equal treatment of war victims, some legal problems also need to be addressed. The Law on the Status and the Rights of Martyrs, Invalids, Veterans, Members of Kosovo Liberation Army, Civilian Victims of War and Their Families, which is also known as the Law on Reparations, has still not managed to ensure the dignified treatment of various categories of victims.

The initial problem is the timeframe of the law, which states that civilian victims are entitled to a pension only if they have lost family members before June 20, 1999. Thus, all those who were killed after the war, of Albanian ethnicity or otherwise, do not have access to reparations.The law needs to be fixed in order to include victims who were killed after June 1999.

Creating a balance between the pensions of KLA members and those of civil victims would not cause a permanent burden on the budget.

Also, according to the categorizations in this law, the civilian war victims receive a pension of 98 euros per month, while the relatives of the KLA soldiers get 358 euros. Although it is understandable that KLA members and their families receive pensions for their sacrifice, civilian victims must also be treated with equal dignity and be compensated, however partially, for their misfortune and loss.

This law does not have a permanent character and as new generations come who were unaffected by the war, these pensions will be abolished. As a result, creating a balance between the pensions of KLA members and those of civilian victims would not cause a permanent burden on the budget. Amending the law to address this problem needs to be done before the children of murdered civilians reach adulthood and their surviving immediate family members pass away due to old age.

Apropos of the law — since the declaration of independence, Kosovo has a fairly inclusive legal framework that promotes and protects the values and principles of international law and human rights.Its strategies and policies are quite progressive in character; the treatment of war crimes in Kosovo’s legal system is a good example for this.

Last year, Kosovo’s Judicial Council announced its war crime strategy, which in theory sounds very inclusive.The new government needs to apply this strategy in practice.Special Prosecutor Drita Hajdari has underlined that the application of this strategy will not be successful if there is a lack of support from the highest political level.To that end, there needs to be legal cooperation with Serbia, which hosts most war criminals.

The government also needs to support the independence of local judges and prosecutors by not turning a blind eye to statements that aim to publicly humiliate them regarding war crimes cases, but by protecting them. Additionally, it needs to improve the conditions of protected witnesses, initially through the full implementation of the Law on Witness Protection and also by reaching discreet agreements with allied countries in order to shelter endangered witnesses.

Conditioned by interstate cooperation

The assertion that Kosovo has a contemporary legal infrastructure is not absolute; there are laws and articles that are not in line with contemporary standards. One of them is the Criminal Procedure Code, which stipulates trial in absentia for war crimes.

It is totally understandable that this initiative came as a result of the frustration that the lack of legal cooperation with Serbia has prevented the delivery of the accused to local courts in Kosovo. It is true that family members need their suffering to be recognized by court rulings, however, this article should be reviewed.

In practical terms, Kosovo needs to ensure the security of the accused and their right to presumption of innocence. As bitter as it may be, as convinced as we may be about the guilt of an accused person, as much as we as a state try to employ the best lawyers to defend the accused without their presence, this practice does not fall in with current practices of international criminal law.

Even if we bypass the moral aspect, the judgments of potential cases would not be enforced. If the accused person is not in Kosovo, they cannot be imprisoned. Even if the accused is extradited, he has the right to request a retrial and the previous one can be considered a waste of resources.

Finding a regional truth is indispensable, knowing the regional character of the Yugoslav wars.

Improvements in the fields of education, reparations and the law in order to deal with the past need to be complemented with the victims’ right to knowledge. Besides the progress of work by the Preparatory Group for the Establishment of the Commission for Truth and Reconciliation (CTR) and the cooperation with the Regional Commission Tasked with Establishing the Facts about All Victims of War Crimes and Other Serious Human Rights Violations Committed on the Territory of the Former Yugoslavia (RECOM) from January 1, 1991 to December 31, 2001, this is where the Brussels dialogue comes into play.

The next government should be the strongest advocate for finding the truth by bringing the issue of missing people to the table, and by requesting the opening of state archives where there might be information about the location of their bodies.

Advocacy on the level of the dialogue could be complemented by the internal facilitation of the dialogue between ethnic groups in Kosovo, emphasizing relations between local Serbs and Albanians.Through the CTR, and with the support of RECOM, there could be progress in finding a regional truth, which is indispensable knowing the regional character of the Yugoslav wars.

Old problem, new reality

It may seem that now is not the time to think about and discuss these issues. We can rightly say that our health is and still is a priority.

But unfortunately, different countries around the world are facing the possibility that this pandemic will be abused for various political advantages. It seems, Kosovo has not been spared from this abuse either. Unfortunately, in the midst of all the endeavors to minimize the physical, economic and mental consequences of COVID-19, we also need to think about dealing with the past.

After the virus, it is likely that we will have a completely different reality. Until now, the world has been more or less divided based on major events — before and after the agrarian and industrial revolutions, before and after the world wars, or before and after the Cold War. From now on, the world is likely to be split to before and after COVID-19.

Perhaps this will have a fundamental impact on how we deal with the past, but if relations between Kosovo and Serbia continue to be treated inadequately and insufficiently, society’s need for dealing with the past will remain the same.

We can only hope that the past we will face after the pandemic will be that of the last war in Kosovo and that no drastic political events will occur that we will have to face in the future.

Feature image: Arrita Katona / K2.0.