Perspectives | Missing persons

It’s about time to seriously talk about war crimes and more

By - 30.08.2017

As a society, we can’t afford to continue ignoring the crimes committed during the ’90s in Kosovo.

Saying that the only crimes committed in the Balkans during the ’90s were war crimes is a gross understatement. Apart from war crimes, there were also crimes against humanity, crimes of aggression and violations of the laws and customs of war.

Theoretically and practically the legal and criminological world has evolved a lot during recent years, thereby allowing us to now refer to all these crimes as ‘state crimes,’ a term that to this day has generated great discussion amongst legal scholars and criminologists as to what exactly it encompasses.

William Chambliss, one of the most prominent criminologists of our time, initially defined state crime as “acts defined by law as criminal and committed by state officials in the pursuit of their job as representatives of the state.” Later, he expanded upon this definition and suggested that all “behavior that violates international agreements and principles established in the courts and treaties of international bodies” also ought to be included in the criminological analysis of state crime.

To this day over 1,600 people are still missing in relation to the war in Kosovo.

But regardless of the definition of state crime one adopts, there is no doubt that serious and persistent state crime occurred during the wars that burst out of the dissolution of the former Yugoslavia.

Bosnia and Herzegovina suffered the most harmful war (1992-95), but over 13,000 people were also killed or went missing during the war in Kosovo and more than 590,000 people were displaced. Most of the victims of the Kosovo war were civilians: According to the only database that exists about these events — that of the Humanitarian Law Center — 8,661 Kosovo Albanian civilians, as well as 1,797 Serbs and 447 Roma, Bosnians and other non-Albanians, were killed or disappeared during the war. To this day around 1,650 people are still missing in relation to the war in Kosovo.

The international community has gone to great lengths to try to identify and bring to court those responsible for state crimes in the region, above all through the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTY has so far held 10,800 trial days, heard 4,650 witnesses and indicted 161 individuals, sentencing 80 of them, and by different authors it is seen as a precondition for the reintegration of the post-Yugoslav states among democratic nations.

In order to support and speed up the work of the ICTY in Kosovo, special chambers under the official name of ‘The Kosovo Specialist Chambers (KSC) and Specialist Prosecutor’s Office (SPO)’ have also recently been instituted. Based in The Hague and composed of foreign staff, these specialist courts have the mandate under Kosovo law to conduct trials over crimes against humanity, war crimes and other crimes, which allegedly occurred between 1998-2000.

Ticking boxes to date

Unfortunately, much less has been done so far at the local, regional or international level to assess the harm generated by state crime and to understand victims’ perceptions of such harms and their needs. In 2011, even Judge Patrick Lipton Robinson, the ICTY president, admitted: “The Tribunal cannot, through the rendering of its judgments alone, bring peace and reconciliation to the region. Other remedies should complement the criminal trials if lasting peace is to be achieved.”

Robinson went on to call for the establishment of a truth and reconciliation commission and for a non-judicial assessment and restoration of the harms resulting from war crimes and other serious violations of human rights. Nevertheless, Kosovo as a country has yet to do anything substantial in order to address the crimes of the ’90s, let alone assess the harm or the needs for reparation of victims and their families.

While President Hashim Thaci unilaterally announced the idea of the formation of a Truth and Reconciliation Commission for Kosovo in February this year, without any strategic planning that we know of, no tangible steps appear to have been taken to move this forward, and it has been criticized in some corners as an insincere attempt to provide the illusion of progress.

Dozens of poorly organized initiatives have already been established and have failed in their initial steps.

Apart from the lack of strategic planning and organization, the idea promoted by the president seems to lack the basic criteria of a truth commission. He claims to want to establish the truth that will somehow magically lead to reconciliation, thereby ignoring all the steps in between such as assessment of harm, victims’ needs and reparations. Only once we’ve gone through this process can we hope to start talking about reconciliation.

Dozens of poorly organized initiatives have already been established and have failed in their initial steps — mainly as a result of not having a strategic plan of how the country should deal with the past, and mostly led by the instinct of ticking a box.

Transitional justice generally, and war crimes specifically, remain a poorly explored territory for Kosovo. Reparations for victims are on the other hand just an illusory measure at the moment. And talking about expanding the terminology and including more than just war crimes into what happened in Kosovo is unforeseen right now. All these drawbacks combined lead the citizen to believe that there is something wrong with the system and as such to lose trust in it.

The main problem with not be addressing the past lies with the victims of the war. They are likely to (if they haven’t already) lose trust and their pain and suffering might have doubled throughout the years. Specific victims might have it harder than the others too and shall be treated properly.

A perfect example is that of people raped during the war. These victims want to make peace with the past and as such not talk repeatedly about their experience. By setting different programs without proper or strategic organization, victims are contacted over and over again, forcing them to re-live the trauma continuously. Has anyone thought about this and how dangerous it is for the broader picture?

These victims can close down and not want to talk about it anymore. I know I wouldn’t if I were to be in their shoes. And this is not the worst thing that can happen. The worst is that victims are not being rehabilitated at all.

What should be done?

It is crucial that the crimes committed in Kosovo are addressed alongside the resulting needs of the victims, and now is the last possible moment at which to do so. Otherwise we risk witnessing the first generation of war dying and remaining with the second generation that remembers very little.

The endeavor on dealing with the past is very complicated and as such will be painful and long. The way I see it, this endeavor should be two-fold: judicial and social.

Judicially the country should offer victims closure by addressing the crimes, addressing their needs, addressing the harm and trying the perpetrators, as well as changing the legislation in line with the needs of victims that would result in the establishment of a reparations structure.

Socially the initial steps are simple. First, the government should establish only one body comprised of competent persons and experts in the field that will deal with establishing the truth: What happened? Where did it happen? How did it happen?

A very good start would be collaborating closely with the regional truth-seeking Coalition for RECOM and the Humanitarian Law Center in Kosovo and drawing on their expertise to date, as well as adding more detailed data, including victims’ needs and reparations.

Anything can be done to tick a box — apart from dealing with the past.

Once that’s done, the body should focus on the needs of victims. Only once we know what the victims need can we possibly think of establishing reparations. That is the third step.

Victims are the most vulnerable part of society, yet not all of them want to just be heard or be part of a commission. Some victims want to see their perpetrators behind bars.

Bearing in mind different approaches and different needs, it is extremely dangerous to establish anything without having proper data. Otherwise it would seem as though whatever is being done (or whatever will be done) is just for the sake of ticking a box.

Anything can be done to tick a box — apart from dealing with the past. This is a very fragile topic that will come up every now and then and haunt the nation indefinitely if not addressed properly.

There is one matter of extreme importance that should not be forgotten. Serbia is a crucial factor in addressing state crimes committed during the ’90s in Kosovo and as such, reparations should be included as part of the Kosovo-Serbia negotiations in Brussels. At the end of the day, reparations are about restitution, compensation, satisfaction, rehabilitation and guarantees of non-repetition.

As such, among other challenges, they come with a budget alert. Kosovo still doesn’t have a single euro set aside for state reparation. Furthermore Serbia needs to pay for the damages caused. But they won’t pay if Kosovo won’t request it.

It will be difficult to get Serbia to acknowledge their responsibility for state crimes, let alone pay for reparations, but it is an inevitable process that must start before it is too late. And the ultimate time is now.

Victims deserve some peace. Nothing can possibly return them to their initial state before the harm they suffered, but what their country can do for them is acknowledge their pain, establish their truth, assess their needs, address them and help repair the damages caused.

The country owes it to them. We owe it to them. We owe it to ourselves.

Feature image: Atdhe Mulla / K2.0.