publications

<<previous  |  index  |  next>>

Accountability in Kosovo Prior to March 2004

The picture of accountability in Kosovo pre-March 2004 was already bleak. Across the spectrum of offences—from war crimes and attacks on minorities at one end to minor criminal matters at the other—those responsible were frequently not brought to justice. The resulting climate of impunity affected all of Kosovo’s communities, Albanian and minority alike.

Domestic Prosecution of War Crimes in Kosovo

I want to be able to trust again. I really do. But no matter what my mind tells me, my heart cannot hear it. There is unfinished business.50

The impression among many Albanians in Kosovo is that there has been little or no justice for the atrocities of the Milosevic regime. During the 1999 conflict between NATO and Yugoslavia over Kosovo, Kosovar Albanians were subjected to a systematic campaign of mass murder, rape, forced expulsions, and other war crimes committed by Serb and Yugoslav forces.51

While the most serious of those crimes are being dealt with by the International Criminal Tribunal for the former Yugoslavia (ICTY),52 the lesser offences are the responsibility of courts in Kosovo. To date, there have only been twenty-three cases of war crimes brought in Kosovo’s courts. The vast majority of these cases (involving Serb defendants), were first tried by panels of national judges. The war crimes cases tried by national judges have been characterized by serious errors, such as failing to call crucial witnesses during the trial, and convictions that frequently lacked well-reasoned arguments to support the finding of guilt.53

On appeal and retrial before majority international panels almost all of the cases have resulted either in acquittals or a conviction for lesser charges. Several cases were suspended or dismissed because the defendant remains at large after escaping from detention facilities in Kosovo. Only a handful of cases have resulted in final criminal convictions, including one case heard in absentia. Often those found guilty were convicted of ordinary criminal offences rather than war crimes.54

At present, ongoing war crimes investigations and prosecutions are dealt with exclusively by international lawyers and judges working for the Department of Justice.55 Efforts to establish a domestic court or chamber with special jurisdiction over wartime and ethnically-motivated crimes—an approach adopted in Bosnia, Serbia proper, and Croatia—were abandoned early on for financial and other reasons.56 A department of international prosecutors and judges was instead tasked with addressing these cases, in the hope that early concerns about judicial and prosecutorial bias and competency could be avoided.57

While a few war crimes cases are still pending, prospects for achieving real progress on accountability for war crimes appear limited. At present only four cases remain active, despite investigations into hundreds of cases. Furthermore, only six war crimes cases have been filed since May 2002.58

Prosecutions have been complicated by the fact that many of the suspected perpetrators are no longer present in Kosovo. It is unclear to what extent the limited success on prosecutions can be attributed to the low priority accorded to accountability for war crimes in Kosovo among key western governments and to what extent it can be understood as a management failure by UNMIK.59

Accountability for Violence against Minorities

Prior to March 2004, there was a perception among the international community that the situation for Kosovo’s minorities had stabilized. While minorities continued to face periodic violence, harassment, and intimidation, it was far below the scale of violence—including murder, arson, and forced displacement— directed against Serb, Roma and other minorities following the withdrawal of Yugoslav and Serbian forces in June 1999.

But the failure of the international community to protect minorities prior to March 2004, and particularly in 1999 and 2000, mirrors an ongoing failure to bring to justice those responsible for the violence. In a 2002 report, the OSCE noted that “[t]he vast majority of serious inter-ethnic crimes that have taken place over the past two and a half years have resulted neither in identification nor arrest of suspected perpetrators, and most ethnic crimes committed in 1999 and 2000 have not been prosecuted.”60

Human Rights Watch’s recent discussions with officials at the OSCE, in the Department of Justice, with the Ombudsperson, and with human rights and humanitarian law organizations suggest that the picture since the publication of the 2002 OSCE report remains largely unchanged.61

The lack of accountability extends to war crimes prosecutions involving victims from minority communities. By the end of 2005, there had yet to be a single domestic war crimes case filed in which the victims were Serbs or other non-Albanians, despite the fact that Serb, Roma, Ashkaeli, and other non-Albanian communities were also victims during the armed conflict in Kosovo.62 

In interviews with Human Rights Watch in the fall of 2005, members of minority communities cited attacks on minorities and their properties, which have never been prosecuted, as proof that the international community does not have the will to address their needs and concerns, much less to protect them.63



[50] Human Rights Watch interview with staff member, nongovernmental agency, Kosovo, November 2, 2005.

[51] For a detailed history of the war crimes committed by Serb and Yugoslav forces during the Kosovo conflict, see Human Rights Watch, Under Orders: War Crimes in Kosovo (New York: Human Rights Watch, 2001).

[52] The perception among many Albanians that justice has not been done extends to the work of the ICTY. Two of the five cases brought before the Tribunal relating to atrocities committed in Kosovo have been against ethnic Albanian former KLA defendants for crimes against both Serb and Albanian civilians. The other three indictments (against nine of the highest ranking Yugoslav and Serbian leaders) are for atrocities committed against the ethnic Albanian population during the conflict. One of these indictments, the case against former Yugoslav President Slobodan Milosevic, was withdrawn after Milosevic’s death in March 2006. The first decision relating to the Kosovo conflict was rendered on November 30, 2005. The fact that two of the three accused in the case (“Fatmir Limaj et al”) were acquitted may have helped shift perceptions of the ICTY among ethnic Albanians in Kosovo. For more on the work of the ICTY in Kosovo see http://www.un.org/icty (retrieved April 15, 2006).

[53] An OSCE report from 2002 on war crimes cases documents the serious problems with the trials up to that point. Problems identified include: concerns over the clarity and specificity of indictments; the unprofessional and incomplete nature of verdicts, including poorly formulated legal reasoning and citation to relevant case law; the failure of the Supreme Court to “help to establish the basis for a dynamic, critical, independent jurisprudence of Kosovo courts;” insufficient allocation of resources for prosecutors and judges trying war crimes cases; concerns as to witness credibility; discussions that served to impair rather than enhance the adjudicatory process, thus demonstrating a need for verbatim recording of testimony in courts; and an apparent unwillingness to duly locate and bring forward Serbian defense witnesses. See OSCE Mission in Kosovo, Legal Systems Monitoring Section (LSMS), “Kosovo’s War Crimes Trials: A Review,” September 2002. See also International Crisis Group, “Finding the Balance: The Scales of Justice in Kosovo.” Europe Report No. 134, September 12, 2002, [online] http://www.crisisgroup.org/home/index.cfm?id=1609&l=1 (retrieved November 18, 2006).

[54] Human Rights Watch telephone interview with International Committee of the Red Cross representative, Pristina, November 11, 2005; Human Rights Watch telephone interview with official, OSCE LSMS, November 14, 2005; Human Rights Watch interview with international prosecutor, Department of Justice, Pristina, November 16, 2005; Human Rights Watch telephone interview with Humanitarian Law Center, Pristina, December 22, 2005; Human Rights Watch interview with international prosecutorial section of the Department of Justice, Pristina, February 23, 2006. In some cases it appears that ordinary criminal charges were filed instead of war crimes charges, for reasons such as limiting the likelihood of witness intimidation. It may therefore be that some of the crimes from the wartime period have been investigated and prosecuted under ordinary criminal charges and that the public is simply unaware of these efforts. Human Rights Watch interview with UNMIK spokesperson, Pristina, September 2005; Human Rights Watch interview with international prosecutor, Department of Justice, Pristina, November 16, 2005.

[55] The only exception is where national judges are called to sit on mixed panels to decide on issues—such as detention—that are not considered of a sensitive nature and thus do not require a purely international panel of judges. Human Rights Watch interview with international prosecutorial section of the Department of Justice, Pristina, February 23, 2006; Human Rights Watch interview with Supreme Court judge, Department of Justice, Pristina, February 22, 2006.

[56] The creation of a domestic court tasked with handling war crimes was proposed in December 1999, but ultimately rejected in August 2000. Although there have been recent proposals made to UNMIK Pillar I regarding the creation of some form of a specialized court for serious crimes, including cases of war crimes or cases involving serious inter-ethnic violence, at the time of writing these proposals were still pending consideration and further development. Human Rights Watch interview with senior management, Department of Justice, Pristina, February 3, 2006; Human Rights Watch interview with Supreme Court judge, Department of Justice, Pristina, February 22, 2006.

[57] International Crisis Group, “Finding the Balance,” p. 25. For further analysis, see Hartmann, “International Judges and Prosecutors in Kosovo.”

[58] Human Rights Watch telephone interview with official, OSCE LSMS, November 14, 2005; Human Rights Watch interview with staff of the prosecutorial section, Department of Justice, February 23, 2006. The OSCE reported five additional cases, while the Department of Justice has six new cases on record (meaning cases not included in the original seventeen cases reported on in the OSCE LSMS report of 2002).

[59] Department of Justice staff told Human Rights Watch that there continue to be serious obstacles to investigating and trying war crimes cases, including for example the absence of witness relocation and protection programs, and the absence of diplomatic measures to resolve the issue of alleged perpetrators residing outside of the province.

[60] OSCE/UNHCR, “Ninth Assessment of the Situation of Ethnic Minorities in Kosovo, September 2001 – April 2002,” p. 18.

[61] Human Rights Watch interview with the ombudsperson, Ombudsperson Institution, Pristina, October 31, 2005; Human Rights Watch informal discussions with OSCE staff, Pristina, October-November 2005; Human Rights Watch interview with staff of the Office of the High Commissioner for Human Rights (OHCHR), Pristina, November 14, 2005; Human Rights Watch interview with representatives of the Department of Justice, Pristina, November 16; Human Rights Watch interview with Humanitarian Law Center, Pristina, December 22, 2005. Human Rights Watch again verified this information with the international prosecutorial section of the Department of Justice in February 2006.

[62] Human Rights Watch telephone interview with Humanitarian Law Center, Pristina, December 22, 2005.

[63] Human Rights Watch interviews in Kosovo, September 16-25, 2005.


<<previous  |  index  |  next>>May 2006