Perspectives | Transitional Justice

Kosovo’s genocide resolution resolves nothing

By - 24.05.2019

How is an entire nation going deaf over too much noise for nothing?

Earlier this month, the Assembly of Kosovo passed a resolution accusing Serbia of committing genocide against ethnic Albanians during the 1998-99 war. Loud noises have also been made about establishing an international tribunal to try the war crimes committed in Kosovo.

Such events became somewhat overshadowed in the public discourse by the debate around the brandishing and publishing of photos graphically depicting wartime rape.

But in amongst that fallout, a discussion of the meaningfulness of declaring a “genocide” was sorely lacking.

To understand better, we first need to look at the terminology as whenever the war is mentioned in Kosovo there is rarely any distinction made between the terminology used. Genocide, war crimes and crimes against humanity are often all used simultaneously and interchangeably to discuss the same issue.

When proving that there was genocide, proving intent is crucial.

It is true that there are a lot of similarities between war and genocide given that they both involve destruction and death; they both also entail violence of different sorts, socio-economic devastation as well as forced deportation. And war can be used as a means of actualizing genocide.

But there are also important differences between the terms, which are even set out in the Rome Statute, the treaty that established the International Criminal Court. War pertains to a situation of armed antagonism, while genocide is more particularly aimed at eliminating a certain race. The main difference between the two therefore lies in the intent of the perpetrator.

And when proving that there was genocide, proving intent is crucial; both Bosnia and Herzegovina and Croatia had a very hard time proving it before the International Court of Justice (ICJ). Bosnia managed to establish that Serbia had violated the obligation to prevent genocide with regard to the events in Srebrenica in 1995, but Croatia failed miserably.

Given the empirical data that both Bosnia and Croatia possess, Kosovo should not take for granted that it can prove there was genocide committed. Not without establishing a functioning task force and without substantially working toward this goal.

Far from the legal sphere, within the politics of the country, the talk about suing Serbia for genocide has been prevalent for many years — mainly due to Hashim Thaçi’s allegations that started in 2015.

Four years have passed since the first time these allegations were made, and not a single step in this regard has been taken.

At that time, Thaçi was also the deputy prime minister of Kosovo, and he was continuously claiming that Kosovo would apply to the ICJ after evaluating “internal and international circumstances.” He kept saying that Kosovo would continue looking for ways to find legal grounds to sue Serbia at the ICJ.

Four years have passed since the first time these allegations were made, and not a single step in this regard has been taken. To say that the reason for this has to do with Kosovo’s inability to sue Serbia at the ICJ does not stand.

After the dissolution of Yugoslavia, Serbia declared that it would continue to be a party of the Genocide Convention. Given that Kosovo at that time was a part of Serbia, it means that the Genocide Convention covered it until 2008, when it declared its independence.

Afterwards, in the Declaration of Independence, Kosovo committed that it would undertake the international obligations to which they were bound as a former constituent part. This commitment included the obligations taken by Yugoslavia with regard to the Genocide Convention. That means Kosovo became part of the Genocide Convention by succession and simply needs to send notice as such to the UN.

Many other professional scholars within the country have made this crystal clear, most recently Robert Muharremi on this platform.

Not only is such a thing possible, but also it is a necessity at this point in time.

It would certainly be much more useful than the current talk of resolutions and new tribunals that resolve absolutely nothing. Political speeches will not get us anywhere practically.

Box ticking and empty promises

The first problem with the Assembly of Kosovo resolution declaring that Serbia committed genocide is that resolutions do not hold any legal effect and as such this one has little to no practical use. One cannot help but wonder — why bother? Is this another mechanism used to just “tick the box”?

The second is that passing a resolution on genocide indirectly assumes that we have documented and properly addressed all that happened during the war and as such we are now seeking responsibility and reparations from a country that does not recognize us — Serbia.

Practically, to do such a thing we have to have consolidated facts that prove what has happened where. It is not enough to start from the premise that “we know there was genocide in Kosovo… we just know” and on the way mention several massacres that took place.

Despite my wish to maintain that we have enough data to support a statement like that, we still do not have a clear idea how much the entire war cost Kosovo — neither materially nor emotionally — let alone data that would help us to objectively establish and prove the intent that there was genocide.

But even assuming that we had this data, using it to establish a resolution with no practical use instead of suing Serbia at the ICJ makes little or no sense. If we were to sue Serbia at the ICJ then, even if we were to lose, Kosovo would establish an international precedent by suing a country that doesn’t recognize it.

It would also be beneficial with regard to dealing with the past as it would ensure that we comprehensively and officially consolidate all the data that is available about the war.

There is a lot of data because the war that took place was horrendous and caused serious harm. The problem is that there is no willingness (or sharp wittedness?) to enact an operational strategy that would help in gathering this data and bringing it together in a coherent framework.

The third problem with this resolution is that in a way it gives amnesty to all the governments that have done nothing to either assess or address the harm caused by war crimes, genocide and crimes against humanity.

Enacting a law that prohibits the denial of something that has not been proven in any way establishes a dangerous precedent.

Amongst other matters, this resolution foresees enacting a law that prohibits the denial of genocide. Theoretically that sounds legit, but the problem with this law is the danger it brings due to the precedent that it establishes.

After all, to this day, there is still not a single court verdict that has proven that there was genocide committed in Kosovo. Nor is there any established scholarship that claims the same. This is of course our own fault — but it is how the current situation stands.

That is not to say that there was no genocide in Kosovo. It is just to say that enacting a law that prohibits the denial of something that has not been proven in any way establishes a dangerous precedent. Who is to say that in the near future the government will not criminalize any kind of freedom of expression that they deem harmful to the government?

So instead of passing resolutions that add political points to the current government, and confuse citizens into thinking that something substantial is actually being done, it would be far better to focus once and for all on documenting what happened exactly. Only once we address and document this can we can start talking about alternative routes to seeking not only retribution but also reparations.

The preparation of a lawsuit against Serbia in the International Court of Justice would add much more value to the narrative of the war in Kosovo than any resolution established for political reasons.

We can start working on applying this logic only once we surpass the individual interest and start putting the public interest first. Otherwise we will continue to be held hostage to a vicious circle of political games and “box ticking” that never ends.

We have spent 20 years thinking about individual interests. How about we start thinking about the people for a change: What they want. What they need. What is necessary instead of what is profitable.

Feature image: Atdhe Mulla / K2.0.