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December 16, 2008

Yves de Kermabon
Head of the European Union Rule of Law Mission in Kosovo, EULEX
St. Mbreteresha Teuta 21
Tauk Bahqe, Road to Germia
P.O. Box: 268
10000 Pristina, Kosovo

Dear Mr. De Kermabon,

We congratulate you on deploying the EULEX Rule of Law Mission throughout Kosovo. Human Rights Watch has been engaged in monitoring human rights abuses and accountability efforts in Kosovo for more than a decade. In that context, we would like to bring to your attention to what we assess to be key priorities for the successful implementation of EULEX's mandate. 

As you know, many of Kosovo's ongoing human rights problems, particularly ethnically and politically motivated violence, are linked to its malfunctioning justice system. The failure of UNMIK and Kosovo's authorities to bring perpetrators of such violence to justice has created a culture of impunity.

The limited progress in bringing to justice those responsible for the March 2004 violence in Kosovo is one of the justice system's most glaring failures. As Human Rights Watch has documented, few perpetrators have been brought to justice for the most serious crimes committed against ethnic Serbs and Roma, despite these cases being given prioritization in the justice system by UNMIK. In 2008, progress on these cases has virtually ground to a halt. Reinvigorating these investigations and prosecutions should be a key priority for EULEX.

The picture in relation to accountability for war crimes is even worse. Since 1999, war crimes have not been effectively addressed in Kosovo, with international judges and prosecutors exclusively focusing on a small number of less controversial cases, often involving lower-ranking KLA members accused of committing crimes against fellow Albanians and non-Serbian minorities. The record of domestic war crimes prosecutions in Kosovo compares poorly with progress elsewhere in the region, notably in the war crimes chambers in Belgrade and Sarajevo. Given the significant number of pending war crime cases, it is important for EULEX to design and implement a war crimes strategy as a matter of urgency to ensure that the most serious cases are prioritized so that witnesses can be located before memories fade.

As a related matter, we urge you to bring pressure to the Kosovo authorities to investigate recent credible allegations that Serbs and other prisoners were transferred to Albania in 1999. As you know, the Kosovo authorities have categorically refused to launch an investigation, despite the gravity of the allegations. While the Parliamentary Assembly of the Council of Europe has launched an inquiry, the authorities are unlikely to act without a clear signal from the EU, which has so far been absent. 

Our research indicates that the failure to address serious crimes in Kosovo is linked to systemic problems with the justice system. In our assessment, the key structural reforms that EULEX must tackle include: improving cooperation between and among international and national police, judges and prosecutors, strengthening the witness protection system in Kosovo, and ensuring that the electronic case management system is actually implemented across all courts in Kosovo.

Concerns over security make witnesses reluctant to come forward in sensitive cases. Relocating such witnesses outside the region is often/in many cases the only effective way to protect them. Yet EU and other western governments have proved reluctant to host such witnesses, leaving some protected witnesses lingering for years in isolated "safe houses" in Kosovo, treatment which undermines the willingness of potential witnesses to testify. It is therefore vital that if sensitive cases are to be tried, that EU member states are prepared to host such witnesses.. To remedy this deficiency, EULEX should closely cooperate with EU member states in order to secure their agreement to host witnesses and their families.

Finally, we believe that is imperative that EULEX lead by example in its efforts to build respect for human rights and the rule of law. That means subjecting itself to independent scrutiny of its actions to ensure compliance with human rights law, and to give persons whose rights may be affected a remedy against EULEX executive action. We therefore urge you to subject EULEX to the jurisdiction of the Human Rights Advisory Panel and sign a memorandum of understanding with the Ombudsperson Institution of Kosovo allowing the institution to investigate complaints against EULEX.

Thank you for your attention to these important issues. We wish you success with your important mandate and look forward to future cooperation on these and other issues.

Sincerely,

Benjamin Ward

Associate Director

Europe and Central Asia Division

Human Rights Watch

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