BIRN Fact-Check: Was Kosovo’s First Transitional Justice Strategy Worth the Wait?

Kosovo’s first-ever transitional justice strategy is soon to be adopted, almost 25 years after the war ended – but experts argue that although it’s a step forward, it doesn’t do enough to address the problems that have persisted since 1999.

More than two years since the drafting of Kosovo’s first-ever transitional justice strategy began, the document is now ready to be approved by the Ministry of Justice on January 12.

Almost a quarter of a century since the war ended, many issues stemming from the conflict persist to this day. These include impunity for war crimes, missing persons who have yet to be found, people displaced from their homes who have not yet been able to return, unpunished human rights violations and enduring ethnic divisions. The Kosovo authorities believe that transitional justice mechanisms can address some of these issues.

Some efforts have been made over the past couple of decades, but experts believe that little progress has been made. “From all of these initiatives, we have not yet seen any concrete results that contribute to the transitional justice process,” Bekim Blakaj, head of the Humanitarian Law Centre Kosovo, which has spent years documenting crimes committed during the war, told BIRN.

The Kosovo government launched the preparations for the transitional justice strategy in 2021. In parallel with the drafting process, it also launched various other transitional justice initiatives. These include legislation to establish a new War Crimes Research Institute and a Commission for Research, Registration, Evaluation and Documentation of Cultural Heritage and Historical Monuments Destroyed during the 1998-99 War.

The government also launched an initiative to establish a new Museum for Documenting and Presenting the Crimes of the Former Yugoslavia and Serbia against Kosovo Albanians in Kosovo, as well as adopting legislation to build a memorial commemorating children killed during the war and amending the Law on Missing Persons to ease the search for the remaining disappeared.

Nevertheless, experts are still concerned that the transitional justice strategy may not go far enough in addressing problems that continue to divide Kosovo society and hinder any major progress towards post-war reconciliation.

Finding the remaining missing persons

According to the Humanitarian Law Centre Kosovo’s database of war victims, the Kosovo Memory Book 1998-2000, a total of 13,421 people were killed or went missing during and just after the war in Kosovo, from January 1998 until December 2000. More than 25 years later, more than 1,600 people are still missing – mainly ethnic Albanians, but also some Serbs.

A lack of cooperation between Pristina and Belgrade and a lack of accurate information about burial sites in recent years has led to an alarming stagnation in the process of finding missing persons’ remains.

In meetings with EU mediators, representatives of Kosovo and Serbia are said to have discussed opening up military and police files from the 1998-99 Kosovo war to help locate the remaining missing persons, but the victims’ families are highly sceptical about whether this will ever happen.

In Kosovo, the authorities insist that the Kosovo Liberation Army had no archives as it was a guerrilla force. For its part, Serbia has classified some of the Yugoslav Army’s archives as state secrets.

As part of the so-called Ohrid Agreement between Kosovo and Serbia in March 2023, mediated by the EU, both sides agreed to endorse a declaration on missing persons that is aimed at helping to locate the remains of the disappeared. But experts see no signs of progress yet.

“The declaration agreed in Ohrid earlier this year by the two countries has not produced any concrete results for missing persons yet,” said Marigona Shabiu, the executive director of the Youth Initiative for Human Rights in Kosovo.

Kosovo’s new transitional justice strategy includes a generalised commitment “to work hard” on the issue of missing persons, and envisages the amendment of three laws to ease the search process.

But Shabiu pointed out that the issue of missing persons continues to be highly politicised by both sides – a critical obstacle to progress.

Truth-seeking initiatives

Legislation to establish a new Institute for Crimes Committed During the War in Kosovo has been approved and is currently waiting government action to set up the Institute again, after a similar body was established in 2011 and then shut down in 2018.

The Institute, operating under the auspices of the prime minister’s office, will research and document serious crimes committed in Kosovo during the war from 1998 up to June 1999, preserve evidence and make information publicly available. It will also be able to research and document post-war crimes committed between June 1999 and December 2000.

So far, truth-seeking initiatives to collect data on wartime violations and record the testimonies of victims have mostly been implemented by civil society organisations such as the Humanitarian Law Centre with its Kosovo Memory Book 1998-2000.

The HLC’s Blakaj said that the new Institute should “contribute to the field of finding the truth”.

The long-mooted idea of setting up a Truth and Reconciliation Commission to establish the facts about the 1998-99 conflict has now been folded into the new transitional justice strategy.

President Hashim Thaci, a former guerrilla leader, initiated the idea of a Truth and Reconciliation Commission in 2017, arguing that it would strengthen the peace and assist in post-war reconciliation. However, the initiative faltered after Thaci was sent to The Hague in 2021 to be tried for war crimes and crimes against humanity.

The current president, Vjosa Osmani, hasn’t picked up the initiative since she took office.

But the justice minister’s office told BIRN that it is in discussions with the president in order to establish a similar body as part of the transitional justice strategy.

“The same mechanism, whatever it is called, will be part of the objectives of the strategy,” the justice minister’s office said.

Nora Ahmetaj, a transitional justice researcher who was a member of the team working to establish the commission, said however that there has been no attempt yet to pick up the preparatory processes where they left off.

“The idea of establishing the Truth and Reconciliation Commission has been included in the transitional justice strategy without any proper consultation. It seems to be just to tick a box,” Ahmetaj said.

Justice for war crimes

A main objective of the transitional justice strategy is strengthening the prosecutorial and judicial system and increasing the number of police officers investigating war crimes cases, as well as improving the country’s witness protection programme.

The final document also includes the creation of a database for serious crimes under international law at the Kosovo Special Prosecutor’s Office.

In an effort to tackle impunity for war crimes, Kosovo changed its Code of Criminal Procedure to allow suspects to be indicted even when they are not available to the Kosovo judicial authorities because they do not live in the country.

Because it does not recognise Kosovo’s inependence, Serbia does not extradite suspects to its former province, so anyone indicted in Kosovo can live freely across the border.

Last year the prosecutor’s office filed 14 indictments for war crimes, of which eight were filed against suspects in absentia. The most recent charged 53 people with involvement in the Meja massacre on April 27, 1999 in the Djakova/Djakovica region of western Kosovo, when 377 civilians were killed. The Meja indictment was the largest in terms of the number of suspects charged since the end of the war in Kosovo.

Blakaj said that because there’s little chance that the suspects charged in absentia will be handed over to Kosovo’s courts, their trials will not contribute much to providing satisfaction for the victims or their families.

“Trials in absentia are not sufficient to provide justice for war victims. The government must create a strategy and take action in order for the perpetrators of war crimes to be present in court,” he argued.

Towards the end of 2023, the long-discussed idea of bringing a genocide case against Serbia to an international court was raised again, although it is not part of the transitional justice strategy.

“As far as the lawsuit for genocide is concerned, it is in the government’s programme. The prime minister’s office is working [on it],” Justice Minister Albulena Haxhiu said, although she declined to confirm that any case will be brought in 2024.

Experts have warned from the outset that such a case would be fraught with difficulties and likely to fail.

State fund for reparations

Kosovo’s current legal framework doesn’t ensure the right to reparations for all conflict victims, including those who were injured in violence after the war officially ended when Yugoslav troops and Serbian police forces pulled out of Kosovo in June 1999.

There is also a contradiction between the Law on Missing Persons and the Law on Civilian Victims. The families of people who went missing between January 1998 and December 1999 are eligible for welfare benefits. But when a missing person’s is found and identified, he or she is not put on the list of civilian war victims, meaning that the family cannot continue to receive the benefits.

The transitional justice strategy envisages changing the law so that retired people who are also registered war survivors or relatives of war victims can claim their retirement pensions as well as the welfare benefits they are entitled to as survivors or relatives of victims. Currently, they must choose to receive one or the other.

The strategy also envisages the establishment of a fund for victims involved in war crimes trials, but it is not clear if it will include the compensation for victims at trials at the Kosovo Specialist Chambers in The Hague as well as domestic trials in Kosovo.

The strategy also envisages providing the psychological assistance for survivors of wartime sexual violence and war invalids.

But Marigona Shabiu, executive director of the Youth Initiative for Human Rights NGO in Kosovo, said that people who became victims of violence after the official end of the war – “mostly [people] from non-majority communities”, she pointed out – are still excluded from certain benefits.

In a report to the United Nations Human Rights Council in July 2023, the UN’s special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Fabian Salvioli, argued that the legal framework for reparations must recognise “all categories of wartime victims, including those who suffered harm beyond June 1999 and until December 2000” after the war officially ended.

Shabiu also argued that the wording of the draft strategy is too vague: “The draft strategy sets forth an action plan to change the law, but it does not provide any information as to how and what is going to be amended,” she told BIRN.

No comprehensive memorialisation scheme

Memorialisation of the war is a major phenomenon in Kosovo, although the focus often tends to be on glorifying the role of guerrilla fighters rather than commemorating the victims.

The new transitional justice strategy doesn’t pay much attention to memorialisation, however, and doesn’t include any policy aimed at comprehensively commemorating all the victims, ethnic minority victims in particular.

The strategy does point out that achieving such objectives will be hard and that there will be no quick solutions.

“The fruits of this work may not necessarily be enjoyed by this generation, but will be the heritage of the future generation of Kosovo, in which the horrors of the past will never be repeated,” it says.

The ethnic inclusiveness of the transitional justice strategy was a key issue highlighted by the Council of Europe’s Commissioner for Human Rights, Dunja Mijatovic, in a report in October 2022.

Mijatovic said that there is a need “to end impunity for war-related crimes and provide effective redress to all war victims” in Kosovo – regardless of their ethnicity.

“The strategy must meet the legitimate expectations of victims and society with regard to justice, truth, reparations and guarantees of non-recurrence [of violence],” she urged.

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