Kosovo and Transitional Justice

The Pursuit of Justice After Large Scale Conflict

Aidan Hehir, Furtuna Sheremeti, Aidan Hehir, Furtuna Sheremeti

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000409963
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Sécurité nationale

This book analyses efforts to achieve justice in Kosovo for victims of crimes committed during the conflict in the 1990s, relating this to broader debates on transitional justice.

The war in Kosovo has come under the jurisdiction of a number of mechanisms which fit within the broader framework of transitional justice. These include international tribunals (the ICTY), international organisations with judicial mandates within Kosovo (UNMIK and EULEX), ad-hoc hybrid tribunals (the Kosovo Specialist Chambers) and truth-seeking mechanisms (RECOM and the Truth and Reconciliation Commission). Collectively, these developments make Kosovo a profoundly important case study on the contemporary efficacy of transitional justice. This volume analyses the nature and impact of the various mechanisms employed to date in Kosovo to determine their effects within the country, and their broader international significance. Various critical issues are examined through an exploration of the institutional mechanisms employed in each case, their coherence with existing theories on "best practice" principles, and the broader implications of their efficacy in Kosovo.

This book will be of much interest to students of transitional justice, statebuilding, Balkan politics, and International Relations in general.

1 Kosovo on trial at the ICTY: narratives of war, history, justice and injustice

Nevenka Tromp

DOI: 10.4324/9781003079781-1

Introduction

The initial expectation when the International Criminal Tribunal for the former Yugoslavia (ICTY) was formed in 1993, was that the legal rulings produced by its trials, would decidedly influence the prevailing divisive narratives about the wars fought on the territory of the former Yugoslavia, and contribute to the emergence of a true shared narrative; after 27 years of waiting this hope has been abandoned. The reality is that the ICTY’s rulings, and their associated legal narratives, have not been accepted as final, objective or just by all sides involved in the conflict. Each conviction and acquittal have been debated, accepted, or rejected depending on the side on which the accused fought.

This chapter examines the transitional justice narratives produced by the Kosovo trials held at the ICTY for crimes perpetrated on the territory of Kosovo between 1998 and 2000. How did the Prosecution deal with the indictments against the Serb and Kosovo Albanian perpetrators without undermining its own prosecutorial strategy? Did the crimes as charged occur as a result of a premediated criminal plan designed to achieve concrete political geopolitical objectives? Were the crimes relating to the imprisonment, expulsion, and murder of civilians the result of an escalating armed conflict between the Kosovo Liberation Army (KLA) and forces of the Federal Republic of Yugoslavia (FRY) and Serbia, who fought for control of the territory of Kosovo, or were civilians deliberately targeted?

To address the above, we shall sort the Kosovo trials at the ICTY into two categories: trials involving Serb indictees, and trials involving Kosovo Albanian indictees. Subsequently, we shall analyse the transitional justice narrative of the Kosovo conflict produced by these trials by investigating: (1) how the “criminal plan”, and “common purpose” was conceptualised in the ICTY indictments in the Kosovo indictments; (2) what the ICTY judgements – the convictions and the acquittals – tell us about the “common purpose” of the Serb and Kosovo Albanian indictees; (3) how the convictions and acquittals influenced the “victims” and “villains” narrative about the Kosovo conflict.

To answer these questions – having initially explained the context – we shall first set out the theoretical framework of the ongoing academic discussion in which the following notions will be examined: “Victors justice” and “Justice for All”; “Presumption of Innocence” and “Presumption of Guilt”; “Individual Criminal Responsibility” and “Joint Criminal Enterprise”. These are the key features of every legal narrative which must be taken into account when discussing conviction and acquittals at war crimes courts.

Historical context: war crimes trials and war memories

Every war is remembered for similar reasons: for its winners and its losers; for the human suffering; for the destruction that it leaves behind. With the passage of time, the memory of a war gets reduced to a single battle or one violent incident that becomes the symbol of the whole war. In the wars fought on the territory of the former Yugoslavia in the 1990s there are certain places that symbolise the violent nature of Yugoslavia’s break-up. The notoriety of these crimes sites was reinforced by the trials at the ICTY.

The Yugoslav wars were fought on the territory of Croatia (1991–1992 and 1995), Bosnia and Herzegovina (BiH) (1992–1995), and Kosovo (1998–1999). The war, violence, and civilian deaths took place as a consequence of the overlapping territorial claims in Croatia, BiH, and Kosovo in the process of the constitution of the post-Yugoslav states. Serbia’s ideological and geopolitical designs, known as the Greater Serbian state ideology which aimed to unite all Serbs in a single state in the aftermath of the disintegration of Yugoslavia, led to conflicts in pursuit of Serbian territorial claims often in areas where a great number of non-Serbs lived. The non-Serbian civilians living in these territories became the target of the wide range of crimes prosecuted at the ICTY and local war crime courts (Tromp, 2016, pp. 46–82).

The destruction of the Croatian town of Vukovar symbolises Serbia’s uprising against Croatian independence and determination to create – by force – Serb controlled territories, the so called Republika Srpska Krajina (RSK). The Bosnian town of Srebrenica symbolises the genocide against the Bosnian Muslims because of the same geopolitical designs and the creation of the Serb controlled territory known as Republika Srpska (RS). The small Kosovo village of Račak symbolises the indiscriminate use of violence by Serbia’s security forces¹ against Kosovo Albanian civilians during the armed conflict that lasted from March 1998 to June 1999.

All three of these crime sites were included in the ICTY indictments against the Serb perpetrators; the ICTY judgements confirmed that the Serb forces committed crimes against the civilians in Vukovar and in Srebrenica. Račak was included in only one ICTY indictment: that against Slobodan Milošević – the former President of Serbia (1990–1997) and the former President of the FRY (1998–2000) – who died before his trial was concluded. Subsequently, the ICTY judges excluded Račak from the two related Kosovo indictments against Milutinović et al. and Vlastimir Đorđević. However, the evidence on Račak featured during the Đorđević trial as part of the evidence relating to the broader Joint Criminal Enterprise charge: the Račak incident was mentioned in the Đorđević Trial Judgement as well as in Appeals Judgement.

All three locations have remained in the public eye: elites on both sides of the conflict continue using them for different arguments. The victims have criticised Serbia for being “unrepentant”, while Serbia’s post-conflict elites often use these three sites as examples of the unfair stigmatisation of Serbia as a principle wrongdoer, as well as to highlight what they claim is the neglect of the Serbian victim’s suffering. The annual commemorations at Vukovar, Srebrenica and Račak draw a lot of attention nationally and internationally, providing an opportunity for the former combatants to articulate their opposing interpretations of what happened and who did what during the war.

Remembering Račak

The ICTY indictments, described that on the night of 15 January 1999, Serb security forces encircled Račak, with the support of Yugoslav Army tanks, in pursuit of three KLA members who were suspected of killing a Serb policeman several days earlier. In the early morning, the Serb forces attacked the village and killed 45 civilians (Milutinović et al., 2005a, p. 76a). The images of the massacre led to a public outcry worldwide and catalysed the already ongoing international diplomatic activities to end the Kosovo conflict. When the Serb side refused to accept the peace agreement for Kosovo negotiated in February 1999, the international community led by the US and the UK launched a military intervention against the Serb forces to avert the humanitarian catastrophe. The NATO military intervention – during which some 800,000 civilians became internally displaced (Đorđević, 2008, p. 72) – officially concluded on 10 June 1999, with a military agreement which stipulated that all Serb security forces had to withdraw from the territory of Kosovo. This agreement – known as the Kumanovo Military Agreement – meant the permanent loss of the Kosovo territory for Serbia and the defeat of Milošević’s Kosovo policy.

On 22 May 1999, the ICTY indicted Milošević for crimes committed in Kosovo, including the massacre at Račak.² During Milošević’s trial, which lasted from February 2002 to March 2006, the Prosecution called dozens of witnesses and introduced extensive written and audio-visual evidence for the Račak massacre. When Milošević died before the end of his trial in March 2006, he had more or less completed the defence for the Kosovo part of his trial. But with no judgement rendered there has been no legal conclusion regarding Milošević’s criminal responsibility for the crimes he was charged with. A substantial part of the Kosovo evidence from Milošević’s trial was also used in the related trials of the Serb officials charged with the crimes in Kosovo by the ICTY – but not Račak.³ Initially, these defendants – Milan Milutinović, Nikola Šainović, Sreten Lukić, Vladimir Lazarević, Nebojša Pavković, Dragoljub Ojdanić, and Vlastimir Đorđević, were charged with the crimes in Račak in the Amended Joinder Indictment of 2005. The judges excluded Račak, and two other killing sites, from the Milutinović et al. case shortly before the beginning of the trial in 2006, because they did not qualify as “deportation sites” and thus events there deviated from the Prosecution’s case regarding the expulsion of Kosovo Albanian civilians from Kosovo in the period after 24 March 1999 (Milutinović et al., 2005a, p. 11).⁴

In December 2019, 20 years after the crimes in Račak took place, Ćirilica – a popular talk show on a Serbian private TV station – aired a two-and-a-half-hour long discussion on re-investigating the importance of the Račak massacre. All three invited guests – Obrad Stevanović, Danica Marinković, and Bogoljub Janćijević⁵ – were Defence witnesses at several ICTY trials including the Milošević trial, and all agreed that the ICTY did not prove that there was a massacre of civilians in Račak; they also claimed that the judges in the two related trials decided to abandon it because “there was nothing in it” (Ćirilica, 2019). Their assertions and statements echoed Milošević’s views about the Račak incident during the opening of his defence case in February 2002; he claimed that the Western media spread the misinformation that the Račak victims were civilians, when in fact all those killed were KLA fighters or aides. Subsequently, he argued, the “so-called massacre of the civilians” was used as the justification for the US and its allies to start a military campaign against Serbia (Milošević, 2002, pp. 397–405).

Thus, two decades since the Račak massacre took place the basic facts about what happened during the armed conflict in Kosovo, are still disputed. Serbia has never accepted its defeat in Kosovo; additionally, the Serbian media still keeps Serbia’s official narrative on Račak alive, according to which all those killed at Račak were KLA fighters, who had died in combat, but were re-dressed in the civilian clothes in order to blame the Serb side for committing crimes against the Kosovo Albanian civilians. The Serb side continues to promote the narrative that the Račak incident was not a massacre of civilians, but a public relations trap staged in order to legitimise a military intervention against Serbia by NATO. Subsequently, the accusations made by Serbia that the ICTY is simply an instrument of “victors’ justice” have cast doubt on every judgement and thus undermined the impact of the ICTY’s findings on security, justice, truth, and reconciliation in post-conflict societies across the former Yugoslav states (Ćirić, 2013; Antonić, 2014; Jović, 2009).

“Victor’s Justice” vs. “Justice for All”

The concept of “Victor’s Justice” – most famously associated with the Nuremberg and Tokyo tribunals – refers to the process where after a war, the victorious side brings individuals from the losing side to trial (Bass, 2002; Gwyn, 2001; Power, 2002).

Critics often claim that the ICTY is a form of victor’s justice because neither the ICTY nor the International Court of Justice (ICJ) investigated or indicted the political and military leaders or the individual NATO states that initiated and participated in the NATO humanitarian intervention between 24 March and 10 June 1999 (Schabas, 2012; Nice, 2017). Additionally, critics have argued that the ICTY did not do enough to pursue crimes committed by the members of the KLA.

The most striking difference between the Nuremberg and Tokyo international tribunals, and the ICTY and the International Criminal Tribunal for Rwanda (ICTR), is that those accused of war crimes, crimes against humanity, violations of laws and customs of war, and genocide at the later trials enjoyed extensive human rights protection, as vested in the 1966 International Covenant for Civil and Political Rights (ICCPR). The respect of the human rights of the defendants has come to form the basis for “fairness” at modern criminal trials; one of the most important pillars of a fair trial is “presumption of innocence” of a defendant.

The alternative concept to “Victor’s Justice” can be summarised as “Justice for All” approach. This approach advocates the application of the same legal standards for all sides involved the war: killing a civilian is a war crime regardless of the outcome of the war. Accordingly, each perpetrator should be investigated and indicted regardless of the side he or she belonged to. Pursuing this approach is in practice quite difficult; there is invariably a lack of political will amongst those in power to support the prosecution of all sides. Additionally, when it comes to mass atrocities, prosecuting every crime and investigating every perpetrator is impossible for any legal; indicting thousands of perpetrators – at national permanent courts or international ad hoc courts – is an extremely onerous task. Thus, it is commonly understood that only a limited number of perpetrators can be investigated and tried.

State elites play a crucial role in the perception of justice in the post-conflict societies. Depending on concrete national or vital state interests, they will selectively criticise or support the particular mass atrocities trials. One of the most powerful methods to undermine a trial or a judgement is to openly question the legality and legitim...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Editors
• List of contributors
• Acknowledgements
• Introduction: power and the pursuit of “justice” in Kosovo
• 1 Kosovo on trial at the ICTY: narratives of war, history, justice and injustice
• 2 Frustrated justice: revisiting ICTY’s involvement in adjudicating crimes committed during the Kosovo war
• 3 The effectiveness of UNMIK and EULEX in the pursuit of criminal justice in Kosovo
• 4 Reparations after large-scale conflicts: can Kosovo learn from international courts and practises?
• 5 Authors of their own transitional justice: survivors of wartime sexual violence
• 6 Sexual violence as a tool of war in Kosovo: where do we stand over 20 years later?
• 7 The “re-appearing of the feminine”: Kosovo’s theatres of war memories after Yugoslavia
• 8 A critical analysis of the evolution of the Kosovo Specialist Chambers and the Specialist Prosecutor’s Office and the rationale for their existence
• 9 The strategy behind the Serbian government’s support for the Kosovo Specialist Chambers
• 10 The strategic logic of ethnic cleansing in post-intervention Kosovo and its implications for the Kosovo Specialist Chambers
• Conclusion: addressing the lack of justice in Kosovo
• Index