Trial and tribulation: The complex process of prosecuting war crimes in Kosovo

On 3 April, the former president of Kosovo, Hashim Thaci, appeared in a special court in the Hague alongside three other prominent politicians and former senior officials of the Kosovo Liberation Army (KLA), Kadri Veseli, Rexhep Selimi, and Jakup Krasniqi, accused of crimes against humanity and war crimes committed during the 1998-1999 war in Kosovo. The opening of the trial sparked an outcry among Kosovar Albanians, who fear it could obscure the truth about the war and imply equal responsibility of Serbia and Kosovo in the conflict. The day before the trial began, thousands of Kosovar Albanians took to the streets in the capital city, Pristina, holding placards that read “Kosovo can’t be rewritten”, “Freedom has a name – KLA”, or “Europe are you joking?”, and calling for justice not politics.

The process of dealing with war crimes committed during the Kosovo war has been complex and controversial since the end of the armed conflict in 1999. Some of the most serious crimes committed in Kosovo were prosecuted and tried at the International Tribunal for the Former Yugoslavia (ICTY), where five out of the eight Serbs that were prosecuted were eventually sentenced. The ICTY also charged six Albanians, including former KLA commanders Ramush Haradinaj and Fatmir Limaj, who were acquitted. But the ICTY was controversial, not least for the acquittal of Vojislav Seselj, the former deputy prime minister of Serbia infamous for committing crimes against humanity in Croatia and Bosnia. The tribunal closed its doors in 2017, which some experts in the Balkans considered an immature decision with many cases left yet unresolved.

In 2015, the Assembly of the Republic of Kosovo established the Kosovo Specialist Chambers and the Specialist Prosecutor’s Office under an international agreement to try war crimes and crimes against humanity committed during and after the conflict. But the court has deepened the controversy surrounding the prosecution of war crimes in Kosovo. The court has a limited mandate and has so far only prosecuted Kosovar Albanians. Meanwhile, Serbia’s own efforts to prosecute war crimes since 2017 have been limited. The court’s jurisdiction clearly states that it prosecutes individuals for their criminal responsibility, but in Kosovo the trial against the leaders of the KLA is largely seen as a trial against the KLA as a whole and the Albanian resistance in the war.

For most Kosovar Albanians, those on trial courageously defended the country against the brutal ethnic cleansing campaign of Slobodan Milosevic’s Serbia, during which over 800,000 Kosovar Albanian civilians were forcefully expelled from their homes and thousands were killed and raped. Of the 13,517 people killed in the conflict, 10,415 were Albanians, 2,197 Serbs, and 528 Roma and other communities. No one denies that individual members of the KLA may have committed crimes or the need to face justice. In December, the Specialist Chambers sentenced a former KLA commander to 26 years of imprisonment for committing war crimes. Kosovars understand this verdict and accept that such crimes cannot and should not go unpunished. However, they remain frustrated that the court only prosecutes Kosovar Albanians, while thousands of them are still waiting to see their perpetrators prosecuted for war crimes.

The court’s establishment was also controversial. The idea for the Specialist Chambers was set in motion after the Swiss politician Dick Marty wrote a report for the Council of Europe in 2010, in which he alleged that the KLA’s leadership had committed war crimes, including organ trafficking. Marty’s accusations, especially those of organ trafficking, gained worldwide media attention, and were widely spread through Russia’s and Serbia’s news channels. But now that the court is up and running, organ trafficking has not been mentioned in the charges or the trial, leading many Kosovar Albanians to further question the court’s goals.

The United States and the European Union put a lot of pressure on the Kosovo government to establish the court. The EU made Kosovo’s EU accession perspective conditional on the creation of the Specialist Chambers: two months after Kosovo amended its constitution to establish the court, the EU signed the Stabilisation and Association Agreement, which marked the first formal step in Kosovo’s relationship with the EU and its membership perspective. Kosovo had little choice but to follow, as it is highly dependent on the support it receives from these Western partners for its state-building and international recognition. Meanwhile, the EU and the US have increased cooperation with Serbia over the last few years, in an effort to accelerate its integration into the EU and decouple it from Russia.

In recent years, Serbia and Kosovo have moved even further from reconciliation, in part because the Serbian government refuses to acknowledge the brutal role that Serbia played in the war. The West has been able to force Kosovo into confronting its past but has not succeeded in getting Serbia to do the same. This could unfortunately serve the Serbian government’s revisionist rhetoric about the war. And it risks further entrenching feelings of animosity between the two countries and preventing reconciliation.

The establishment of the Kosovo Specialist Chambers and the trial reveal the challenges of transitional justice. The court should extend its mandate to include crimes committed by Serbs in the conflict, which would establish trust in the court and help both sides to face the past. Otherwise, it should focus on reaching a verdict quickly to allow Albanians to close this chapter of their history and start imagining peace and reconciliation with Serbia. Meanwhile, the West should use its leverage with Serbia to press the leadership to prosecute high-ranking war criminals in Serbia. Ultimately, reconciliation between the two countries requires both sides to recognise their responsibility for the war crimes committed in Kosovo. The West should support this process in a manner that does not risk serving the Serbian government’s revisionism of the war.