Perspectives | War Crimes

The announcement of charges against Thaçi raises questions for the prosecution

By - 01.07.2020

What the Specialist Prosecution's statement reveals.

On June 24, the Specialist Prosecutor’s Office announced they had filed a 10-count indictment with the Kosovo Specialist Chambers charging President Hashim Thaçi and Kadri Veseli — leader of the PDK — “with a range of crimes against humanity and war crimes.” It also implicated them in the murder of 100 “Kosovo Albanians, Serb, Roma and other ethnicities.” Both men deny all accusations.

The news caused widespread shock and immediately scuppered the much-heralded summit at the White House between Thaçi and President Vučić of Serbia, scheduled for June 27. 

It seemed clear that “the Snake” had powerful external friends willing to work with him to secure their own interests.

Since the court was established in 2014, I have conducted many interviews with civil society activists, lawyers, politicians and members of the general public in Kosovo and Serbia; I don’t recall anyone predicting that Thaçi would be indicted by the court. 

Conspiracy theories have dogged the court since its inception, the most prevalent being that Thaçi had struck a secret deal to grant himself immunity in return for acceding to demands made by powerful external actors. 

As the years passed without the court issuing any indictments, these conspiracies seemed more plausible, and when Thaçi began to talk in 2018 about a land swap with Serbia it was linked by some to the rumored secret deal; this was allegedly the price Thaçi was paying for evading trial. 

When the Vetëvendosje-led government was overthrown — seemingly with U.S. support — to pave the way for a much more pliant administration subservient to Thaçi, it seemed clear that “the Snake” had powerful external friends willing to work with him to secure their own interests. 

But then came news of the Specialist Prosecutor’s charges.

The timing of the announcement — coming just three days before the Thaçi-Vučić summit — looks designed to have torpedoed the talks. But by whom and why? Some have alleged that the “Europeans” were angered at being sidelined and thus used the indictments to scupper the summit, others that the move was designed to prevent any amnesty being agreed at the summit in Washington.

Time may tell, but it is certainly noteworthy that even figures as powerful as Thaçi, Vučić and Richard Grenell were unable to prevent the court from disrupting their plans. 

Now that the court has demonstrated its willingness to confront the “big fish,” debates about the court’s legitimacy, efficacy and impact have begun in earnest. There are, I believe, four core issues that will frame this debate and ultimately determine the future impact of the court. 

Is the court necessary? 

The court was heralded by its external sponsors — chiefly the U.S. and the EU — as a necessary, albeit painful, step; to move forward Kosovo had to address the past, many argued, and accept that crimes were perpetrated by Albanians and KLA members against minorities. This rhetoric was framed within the broader transitional justice discourse that emphasizes the need to “heal” wounds and reveal “truths” as a means to building a robust, and fair society and ultimately prevent the recurrence of conflict

But there is an inherent hypocrisy in these states solemnly warning others that without dealing with the past they will never enjoy peace and prosperity.

While there is an ongoing debate as to the efficacy of transitional justice, one issue that is invariably not discussed is the fact that many of those states who most vocally implore — or in the case of Kosovo demand — that other states undergo transitional justice processes have never done so themselves, and are in many cases actively hostile to the idea. 

The UK has not established a process to deal with the violence its forces perpetrated across the world during colonial times, or more recently during the “troubles” in Northern Ireland. The same can be said for all the other European powers who violently subjugated “savages” across the globe. 

The U.S., too, has yet to meaningfully acknowledge the crimes committed against Native Americans; more recently the U.S. has reacted aggressively to the International Criminal Court opening an investigation into allegations of crimes committed by U.S. troops in Afghanistan.

However, this has been roundly criticized internationally and this does not mean that since they do not address these issues others should not. But there is an inherent hypocrisy in these states solemnly warning others that without dealing with the past they will never enjoy peace and prosperity. 

As such, while the goals of transitional justice are laudable, the manner in which it has been implemented to date evidences the role power plays in determining who must atone for past crimes. People in Kosovo will legitimately wonder why they have been tasked with undertaking a process others have repeatedly rejected. 

Why not Serbia?

In the course of my research I have met very few people who deny that any crimes were committed by Albanians, but the majority have nonetheless asked why so many of the crimes committed by Milošević’s forces remain unpunished. It is a good question. 

The International Criminal Tribunal for the former Yugoslavia (ICTY) did, of course, send many Serbs to jail — though it was mandated to prosecute those in leadership roles rather than lower-level actors — and Serbia’s own courts prosecuted a small number of individuals. 

While the Milutinović et. al., Šainović et. al. and Djordjevic cases, for example, resulted in perpetrators of crimes against Albanians being punished, there can be no doubt that the vast majority of those individuals responsible for the horror inflicted in Kosovo by Milošević’s forces have never been brought to justice. 

In their efforts to woo Vučić they have shamefully chosen to ignore the cries for justice from those victims of Serbian aggression.

In the midst of the frenetic response to the news about Thaçi and Veseli, Vasfije Krasniqi — one of thousands of Kosovar Albanian women raped by Serbian forces — tweeted, “Why is it that still, 21 years later, we have not received justice for the numerous war crimes committed by Serbian perpetrators toward ethnic Albanians?” Her dismay — and that of the many thousands of others who have yet to receive any justice through national or international courts — cannot be dismissed.

It is an outrage that those responsible have evaded justice but worse still, that many continue to hold public office within Serbia. 

The accession to power of Vučić Milošević’s former Minister for Information — has ensured that those voices within Serbia calling for the crimes committed against Kosovo Albanians to be acknowledged and punished — most notably Nataša Kandić and the Humanitarian Law Centre — have been drowned out by a renewed nationalistic bravado that denies the facts

It is particularly galling to witness EU heads of state cheerfully embracing Vučić in their desperate bid to pull him away from Russia’s orbit; in their efforts to woo Vučić they have shamefully chosen to ignore the cries for justice from those victims of Serbian aggression. 

Making this argument about Serbia’s crimes cannot be dismissed as “whataboutery”; it is perfectly legitimate to accept that crimes were committed by Albanians against minorities between 1998 and 2000 while at the same time demanding that much more be done to punish those within Serbia who engaged in systemic, state-sponsored atrocity crimes. 

Much of the local resentment toward the court stems from the fact that it is widely perceived to be only mandated to consider alleged crimes committed by Albanians, and it is therefore hard to escape accusations that it has an ethnic dimension.

If the same degree of pressure was brought to bear on Serbia to address its past crimes as it was on Kosovo in 2014 ahead of the Specialist Chambers being formed, then at least some sense of parity would be restored. So long as the many victims of Serbia’s aggression continue to be denied justice, the court will find that its judgments provoke resentment rather than catalyze reconciliation. 

Does it have legitimacy? 

Linked to the above point, a major problem the court faces is its lack of local legitimacy. The court was created because foreign powers demanded it; though nominally based on Kosovo’s constitution and established by the Assembly of Kosovo, the international pressure brought to bear on Kosovo’s politicians was the overwhelming reason for its creation. Indicatively, at the time the then Prime Minister Thaçi supported the court in the Assembly while at the same time describing it as “the biggest injustice and insult which could be done to Kosovo and its people.”

Studies on effective transitional justice note that the process must have local ownership and enjoy local legitimacy; the manner in which the special court was created, however, conflicted sharply with both. In the years since its creation, despite the court’s own claims that it has engaged in an active public engagement campaign, the Albanian community in Kosovo remains largely hostile to the court, not least because of the broad perception that it is only mandated to try crimes allegedly committed by one ethnic group. 

Those indicted by the court will of course use this visceral societal acclaim for the KLA to their own ends.

All major political parties — with the possible exception of LDK — have spoken out against it. Some even sought to revoke its mandate in 2017 — and this has impacted on societal support. The Serbian community in Kosovo are naturally more favorably disposed toward the court, but if the court’s proceedings and judgments are to have a positive impact on inter-community relations in Kosovo it is imperative that the Albanian community accept both its mandate and probity. At present they don’t. 

Additionally, the “hybrid” nature of the court — based on Kosovo’s law but located in The Hague and staffed by foreigners — necessarily makes it appear remote. This feature of the court’s composition was legitimized as necessary to protect against witness intimidation and judicial corruption; the rationale being the proceedings of an international court will be “conducted in a more efficient manner” than a local one

Yet, a number of ICTY trials were blighted by accusations of political bias and instances of witness intimidation — most infamously that of Ramush Haradinaj — and the record of both UNMIK and EULEX was far from exemplary; UNMIK was accused of ineptitude, corruption, and allowing political considerations to interfere with the pursuit of justice, while EULEX was criticized for a failure to protect witnesses. As such, the idea that international courts are somehow immune from the vices that plague national courts, is simply not true. 

Heroes or villains?

Possibly the biggest obstacle the court faces is dealing with the highly sensitive issue of the KLA’s status among Albanians in Kosovo. Unsurprisingly, the KLA are widely heralded as heroes who successfully defended the Albanian community from Serbian aggression. 

Allegations that some individual KLA members were actually criminals conflicts with the dominant national narrative among Kosovar Albanians and invariably provokes anger. Those indicted by the court will of course use this visceral societal acclaim for the KLA to their own ends; it is a very powerful tool and one that the “externally imposed, foreign court” will find difficult to counter. 

If there is ever to be widespread acceptance that some KLA soldiers committed criminal acts it can only be done through a tactful separation of the crimes committed by individuals from the wider struggle waged by the KLA. According to the research conducted by reputable human rights organizations, the majority of the crimes committed against minorities occurred after Serbian forces left

As such, most of the alleged criminality did not occur during the insurgency phase when the KLA were engaged against a fully equipped army actively seeking to eliminate the Albanian population in Kosovo. 

These charges are not against the KLA or all Albanians but against Thaçi and Veseli.

Importantly, Clint Williamson — formerly Special U.S. Presidential Envoy on War Crimes and Chief Prosecutor of the European Union Special Investigative Task Force whose 2014 investigation directly led to the establishment of the court — noted that these crimes were not committed as part of the liberation struggle but undertaken by a small group of individuals “in order to obtain political power and personal wealth for themselves. 

As such, if done sensitively and with respected local figures taking the lead, it might be possible to differentiate between the KLA’s struggle against Milošević and the latter campaign waged by a faction within the KLA — for their own ends — against minorities and indeed other Albanians. 

But, the groundwork for such a campaign has not been laid; as such, those accused — and their supporters — will no doubt gain support by heralding the KLA’s heroic struggle, instrumentally invoking Kosovo’s rape victims, and brandishing the court a “politically motivated” stain on the national psyche. 

However, these charges are not against the KLA or all Albanians but against Thaçi and Veseli. They are the two individuals accused of murdering almost 100 people and conducting a secret campaign to take down the court. 

Given the public mood and the deep divisions that still exist in Kosovo between Serbs and Albanians, the impact of the accused portraying themselves as martyrs bravely defending the KLA’s “just war” could cause an increase in societal tensions. 

Into the unknown

Kosovo faces an unprecedented array of challenges; from the more immediate need to deal with coronavirus, to addressing the cronyism and corruption that has done so much damage, to the very status of the state internationally. Given Thaçi’s new predicament, and the inherently fragile nature of the Hoti-government, Kosovo is now in the grips of a paralysis; the many domestic and foreign policy challenges Kosovo faces are likely to go unresolved for the foreseeable future. 

The prosecutor’s charges have come at a delicate moment for Kosovo; with good reason Kosovo’s citizens increasingly feel let down by the international community. Despite the many promises made in 1999 and again in 2008, Kosovo has come to be beset by a host of internal problems — including high unemployment, mass emigration, and poor infrastructure — and these coupled with the lack of visa liberalization, Serbia’s de-recognition campaign, and the negligible prospects of EU membership, adversely impacted the public mood. 

The whirlwind of events over recent months has accentuated this: In the midst of a pandemic, the most popular political party was ousted from power and the second most popular politician was demoted by her own party; the new government’s mishandling of the pandemic has led to a sharp rise in cases of COVID-19; the new government then agreed to remove reciprocity and stop advocating for membership of international organizations; and now the president who helped bring down the old government is accused of being part of almost 100 murders and other war crimes and a secret campaign to get rid of the special court. 

Given this — and as the unrepentant Vučić is congratulated for his recent electoral victory and Serbia moves closer to EU integration — there could hardly be a worse time to accuse individual members of the KLA of being murderers. The victims of these alleged crimes deserve justice of course, and will no doubt welcome the recent developments, but as the Humanitarian Law Centre in Kosovo’s head, Bekim Blakaj, noted, the court is not supported by the majority of Kosovar Albanians and in the absence of this, its judgments will be rejected as “political.” 

The manner in which it was established, its inherently remote nature, and its failure to date to successfully convince the Albanian community in Kosovo of its legitimacy, leave the prospects of the special court positively contributing to peace and stability in Kosovo seeming remote. 

At worst the trials could lead to an upsurge in support both for the accused and militaristic nationalism; this could have grave consequences for Kosovo’s fragile democracy and societal stability. Even if this worst-case scenario does not come to pass, it is difficult to imagine how the many thousands of Albanian victims of Serbian aggression will not react to the court’s judgments with a deep sense of dismay as they wonder why their plight has been repeatedly overlooked. 

Feature image: courtesy of the Office of the President of Kosovo.

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