| ENDING IMPUNITY IN KOSOVO: CLOSING THE ACCOUNTABILITY GAP FOR CRIMES COMMITTED DURING THE KOSOVO CONFLICT |
| Publikuar më 22 nntor, 2020 në orën 02:17 ( ) |
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Testimony of Dr. Paul R. Williams
Rebecca I. Grazier Professor of Law and International Relations
American University
President and Co-Founder, Public International Law and Policy Group
House Committee on Foreign Affairs
“Kosovo’s Wartime Victims: The Quest for Justice”
April 30, 2019
ENDING IMPUNITY IN KOSOVO: CLOSING THE ACCOUNTABILITY GAP FOR CRIMES COMMITTED DURING THE KOSOVO CONFLICT
Good morning Chairman Eliot Engel, Ranking Member Michael McCaul, and members
of the Committee. It is an honor to testify before you today. In particular, it is an honor to be invited here by Chairman Engel given his long-standing commitment to peace and justice in Kosovo. It is also a privilege to share this platform with the other individuals testifying before the committee, each of whom have poignant, direct, and personal experiences and insight relating to the quest for justice for Kosovo’s wartime victims.
I have been asked by Chairman Engel to discuss the international legal violations committed during the Kosovo War of 1999. In particular, I have been asked to speak from the perspective of an international lawyer with experience in designing accountability mechanisms.
I will address the remedies which have been made available to victims and potential claimants, including families of those murdered and victims of rape and conflict-related sexual violence, whose cases derive from the Kosovo conflict. I have been asked to assess the degree to which these mechanisms have effectively served the purpose of justice, accountability and reconciliation for the people of Kosovo. Specifically, I have been asked to share my thoughts on the future role of the Kosovo Specialist Chambers as a viable mechanism to afford justice to the hundreds of thousands of victims of that conflict.
This testimony will identify what I call an “accountability gap” in Kosovo, and it will seek to explain some of the reasons behind this gap. I will first detail a brief history of the conflict in Kosovo and discuss the mechanisms that have been created for accountability so far—namely, the Yugoslav Tribunal, the UN Mission in Kosovo’s Regulation 64 Panels, the European Union Rule of Law Mission in Kosovo’s assistance to domestic courts, the Serbian War Crimes Chamber, and the more recent Specialist Chambers and Specialist Prosecutor’s Office. I will then assess how and why access to justice, with particular attention to conflict-related sexual violence, has to date been beyond the reach of a significant number of victims in Kosovo.
Lastly, I will articulate a number of steps we can take to begin closing this accountability gap. To contextualize my contribution to today’s hearing, I should mention my previous work on accountability in the former Yugoslavia as well as in other post-conflict regions, including Syria, Uganda, Côte d’Ivoire, and Libya. I was an Attorney Advisor in the U.S. Department of State’s Office of European and Canadian Affairs during the State Department’s initial development of an American response to the conflict in the former Yugoslavia. In this position, I played a role in the formulation of the UN Security Council Resolution that authorized the Yugoslav Tribunal. I also served as an advisor to the Kosovo Albanian delegation at the Rambouillet, Paris, and Vienna Conferences, and I provided assistance to the development of the Kosovo constitution.
I have provided legal assistance to more than two dozen parties involved in peace negotiations, the drafting of post-conflict constitutions, and the creation of transitional justice mechanisms, including those designed to prosecute war criminals. Notably, I advised the Ugandan government on the development of a domestic war crimes chamber within the state’s High Court, the Libyan Transitional National Council on the creation of transitional justice mechanisms, the Government of Côte d’Ivoire on mechanisms for the investigation and prosecution of atrocity crimes, and the Syrian opposition on the proposal for a hybrid tribunal to prosecute those responsible for crimes against humanity in Syria.
HISTORY OF THE KOSOVO CONFLICT
The war in Kosovo has its origins in the dissolution of the former Yugoslavia. Located in the heart of the Balkans, Kosovo became a Serbian province after the First Balkan War. Then, when Serbia was incorporated into Yugoslavia following World War II, Kosovo’s status shifted to a Socialist Autonomous Province within Serbia.1 In 1991, the dissolution of Yugoslavia began as Slovenia and Croatia declared independence and the national army of Yugoslavia responded to these declarations with violence, which led to armed conflict in Slovenia, Croatia, and subsequently in Bosnia.2
During the conflicts in Croatia and Bosnia, widespread mass violence and atrocity crimes occured, including genocide,3 rape camps,4 torture, mass killings, and mass detentions. The genocide at Srebrenica carried out by Bosnian Serb forces with the assistance of forces from Serbia proper prompted NATO airstrikes that continued for one month until the parties met to negotiate peace in Dayton, Ohio in November of 1995. The resulting Dayton Peace Accords brought an end to the conflict in Bosnia, but left unresolved the crisis brewing in Kosovo.5 Kosovo Albanians had sought separation from Serbia and full republic status within Yugoslavia for years before Yugoslavia’s dissolution.6 In response, Serbian leader Slobodan Milošević called for the restoration of full Serbian sovereignty over Kosovo. Milošević became increasingly oppressive towards the Albanian majority, and he sought a new constitution that would revoke Kosovo’s semi-autonomous status and allow full Serbian control over the territory.
The People’s Movement of Kosovo (Lëvizja Popullore e Kosovës) organized non violent political resistance advocating for Kosovo self-determination. Then, in 1996, the Kosovo Liberation Army (“KLA”) began mobilizing in armed protest.7 Serbia responded to the KLA insurgency with an even harsher repression campaign, with violence peaking in 1998.8
Serbian forces destroyed homes and mosques, and engaged in mass looting, rape, and murder.9 The vast majority of international crimes perpetrated during the conflict in Kosovo were committed by the Serb army, police, and paramilitary who waged a systematic and targeted campaign of violent terror against ethnic Albanians.10 According to Human Rights Watch, Serb forces had three main motives for acting violently against the Kosovo Albanians: expediting the "cleansing" process through intimidation and fear, targeting of individuals suspected of fighting with or assisting the KLA, and killing for revenge.11
The atrocity crimes carried out in Kosovo were extensive, including kidnapping, enforced disappearances, explusions, rape, murder, and forced displacement.12 In particular, rape and sexual violence were used as methods of ethnic cleansing with the systematic threat and instigation of violence terrorizing Kosovo Albanian villagers into fleeing their homes.13 In total, the Serb army, paramilitary forces, and police forcibly displaced nearly 90% the Kosovo population.14
A report by the Organization of Security and Co-operation in Europe estimated that around 850,000 Kosovar Albanians were forcibly expelled from Kosovo and about 590,000 were internally displaced by the conflict.15 In an attempt to resolve the conflict in Kosovo, the parties to the conflict met for peace negotiations in Rambouillet, France and then in Paris, France. The delegation representing Kosovar Albanians signed the Rambouillet Accords alongside the American and British delegations in Paris.16 Serbia, however, did not sign the Accords. Then, Serb security forces killed 45 Kosovo Albanians in the village of Račak, in an incident known as the Račak Massacre.17
In response to these killings, Yugoslav Tribunal prosecutor Judge Louise Arbour sought access to Račak to investigate the massacre. Milošević and Serbian forces under his control would not to allow Judge Arbour to enter Kosovo.18
This massacre would play a key role in NATO’s decision to undertake a humanitarian intervention.19 In March 1999, NATO began a 78-day air campaign against Serb forces in Kosovo after efforts to negotiate an end to the violence collapsed.20 NATO’s intervention led to Serbia’s agreement to cease all military activity in Kosovo. To facilitate the withdrawal of Serbian forces from Kosovo, NATO and the Serbian government agreed on the removal of Serb military units and the deployment of an international security force (“KFOR”).21
The United Nations Security Council then passed Resolution 1244 on June 10, 1999, which established the UN Interim Administration Mission in Kosovo (“UNMIK”) as a temporary government until Kosovo’s own institutions had developed and demonstrated the capacity to self-govern.22 Among its various powers, UNMIK possessed the authority to administer justice in Kosovo, including the ability to investigate and prosecute serious crimes committed during the war. Kosovo declared independence on February 17, 2008.23 The declaration was rejected by Serbia, which claimed ongoing sovereignty over Kosovo, but has since received the recognition of over 100 states,24 including the United States, 23 of the 28 European Union member states, and a number of regional powers, such as Turkey.25
PRIOR MECHANISMS FOR PURSUING ACCOUNTABILITY IN KOSOVO
While there have been a number of attempts to secure accountability for war crimes that were committed in Kosovo, there have been repeated shortcomings. Below, I will detail the limited impact of the Yugoslav Tribunal, the minimal role of UNMIK’s brief effort to prosecute those responsible for war crimes, and the restricted jurisdiction that prevented European Union Rule of Law Mission in Kosovo (“EULEX”) from trying many cases. The inability of these mechanisms to hold a significant number of perpetrators accountable has created anaccountability gap for the crimes committed in Kosovo.
The Yugoslav Tribunal
The primary judicial mechanism used to hold those responsible accountable for war crimes was the Yugoslav Tribunal. The Tribunal grew out of the UN Security Council’s Commission of Experts to Investigate War Crimes in the Former Yugoslavia. The Commission, headed by Professor Cherif Bassiouni, was charged with investigating and analyzing evidence of violations of the Geneva Convention and international law on the territory of the former Yugoslavia.
On May 25, 1993, at the recommendation of the Bassiouni Commission, the United Nations Security Council adopted Resolution 827 which established the Yugoslav Tribunal for the “purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory for the former Yugoslavia since January 1, 1991.”26
The cases brought before the Yugoslav Tribunal came to cover a number of interconnected conflicts—namely, the violence in Slovenia, Croatia, Bosnia and Herzegovina, and Kosovo.27 The Yugoslav Tribunal was mandated to “bring to justice those responsible for serious violations of international humanitarian law” and “contribute to the restoration and maintenance of peace in the region.”28
The specific categories of international crimes the Tribunal was authorized to prosecute included: grave breaches of the Geneva Conventions, violations of the laws of war, genocide, and crimes against humanity.29
The Yugoslav Tribunal did not have jurisdiction to hold states, governments or political parties accountable, only individuals.30
During its 24-year tenure, the Yugoslav Tribunal indicted 161 individuals,31 convicted 90 individuals, and acquitted 19 individuals.32 The remainder of those indicted were transferred to other courts, passed away, or had their cases withdrawn for various reasons.33 Of the 161 indictees, 68% (109 individuals) were associated with atrocities alleged to be committed by Serbian forces, 21% associated with Croatian forces (33 individuals), 4% associated with Bosniaks forces (7 individuals), and 4% associated with Kosovar Albanian forces (6 individuals).34 Notably, the vast majority of these indictments were for crimes committed in Croatia and Bosnia.
The Yugoslav Tribunal and the Kosovo Conflict
Only seven members of the Serbian regime were indicted by the Yugoslav Tribunal for crimes committed in Kosovo. Surprisingly, not a single one of these seven indictments included an explicit count of rape as a crime against humanity. Four of these indictments, however, did account for the use of sexual violence as a method of committing other atrocity crimes.35 The most prominent individual indicted was Serbian President Slobodan Milošević. Milošević was the first sitting head of state to be indicted for war crimes by an international tribunal.36
Milošević was initially indicted under the theory of command responsibility for atrocity crimes committed by Serb forces in Kosovo. His alleged crimes included murder and persecution of civilian populations on political, racial, or religious grounds. Milošević’s indictment alleged that he “as President of the [Federal Republic of Yugoslavia], Supreme Commander of the [Yugoslav Army] and President of the Supreme Defence Council” was “criminally responsible for the acts of his subordinates.”37 His indictment did not include any details about conflict-related sexual violence. The indictment was subsequently amended to include charges related to the conflicts in Croatia and Bosnia, and included charges of genocide in Bosnia. Milošević died from natural causes during the course of his trial, preventing the Tribunal from rendering a decision in his case.
The Tribunal also indicted Nikola Šainović, Deputy Prime Minister of the Federal Republic of Yugoslavia.38 The Tribunal found Šainović guilty of possessing the intent to displace the Kosovo Albanian population and convicted him of individual criminal responsibility for deportation, forcible transfer, murder, and persecution through sexual assault.39 Šainović was sentenced to 22 years of imprisonment.40 A third high profile indictee was former Serbian President Milan Milutinović. Milutinović was indicted on the basis of individual criminal responsibility and superior criminal responsibility for war crimes including murder and persecutions on political, racial or religious grounds and crimes against humanity related to deportation, murder, and persecutions.41
Milutinović was found not guilty on all charges. Notably, Šainović and Milutinović headed the Serbian delegation to the Rambouillet Accords negotiations.
The additional four indictments of perpetrators associated with the Serbian regime involved evidence of sexual violence, although rape was not a distinct count in any of the indictments. Colonel General Vlastimir Đorđević,42 Chief of Staff of the Priština Corps Vladimir Lazarević, Chief of the General Staff of the Armed Forces of Yugoslavia Nebojša Pavković,43 and Head of the Serbian Police in Kosovo Sreten Lukić44 were convicted of the deportation of municipal communities, forcible transfer, and murder.45
The indictment argued that all four individuals were found to have directed, encouraged, and supported the sexual assault of Kosovo Albanians, particularly women, by Serb forces as a means of committing the charged crimes.46 However, the Tribunal found that intent to discriminate had not been proven and thus “the charge of persecutions committed through sexual assault [could] not been
established.”47 Đorđević was sentenced to 18 years imprisonment.48 Lazarević was sentenced to 15 years imprisonment,49 Pavković was sentenced to 22 years imprisonment.50 Lukić was sentenced to 22 years imprisonment.51
The Yugoslav Tribunal also indicted seven Kosovar Albanians for crimes committed during the Kosovo conflict. Four of these seven indictments were members of the KLA and officers at the Lapušnik/Llapushnik Prison camp: Agim Murtezi, Fatmir Limaj, Haradin Bala, and Isak Musliu.52 They were indicted for the imprisonment, torture, and murder of detainees at the Prison Camp.53 Murtezi’s indictments were withdrawn.54 Limaj and Musliu were acquitted.55 Bala was convicted and sentenced to 13 years’ imprisonment, but was granted early release.56 The fifth Kosovo Albanian indicted was Ramush Haradinaj, who served as Prime Minister of Kosovo and was a former KLA commander.57 He was indicted for crimes against humanity and war crimes for mounting a systematic campaign to seize control of the area between villages of Glodjane/Gllogjan and Decani/Deçan.58 Haradinaj was acquitted of all charges.59 Relatedly, the sixth and seventh Kosovar indictees were Idriz Balaj, a member of the KLA and commander of a KLA special unit, and Lahi Brahimaj, a member of the KLA and Deputy Commander of the Dukagjin Operative Staff. They were both indicted for persecution, deportation, imprisonment, murders, cruel treatment, and rape.60 Balaj was acquitted.61
Brahimaj was convicted and sentenced to 6 years in prison.62
The Yugoslav Tribunal completed its mandate in 2017 and no longer takes on new cases. The Hague Branch of the Mechanism for International Criminal Tribunals, established in 2013, is now responsible for “maintaining protective measures granted to victims and witnesses by the ICTY, hearing any appeals from judgements or sentences issued by the ICTY… [and] handling requests for review of judgements.”63
This residual mechanism, as it is called, is also responsible for monitoring cases transferred to national jurisdictions and for handling any future appeals that are filed.64
UN Mission in Kosovo and Regulation 64 Panels
In June 1999, the UN Security Council council passed Resolution 1244 establishing a UN
Interim Administration Mission in Kosovo (“UNMIK”).65
In 2000, UNMIK passed Regulation
64, which created panels for the investigation and prosecution of war crimes in local courts.66
These structures, called Regulation 64 Panels, were hybrid international-domestic courts that
consisted of an international prosecutor, an international judge, and/or a panel composed of three judges, including at least two international judges.67
UNMIK opened more than a thousand case
files, but only initiated a small number of prosecutions. Specifically in relation to sexual
violence, “UNMIK conducted two appeals and retrials in cases involving allegations of [conflictrelated sexual violence] which had been tried before December 2000 by Kosovo Albanian
judiciary. Both cases ended in acquittals.”68
In its eight year mandate, UNMIK completed just
37 war crimes cases.69
UNMIK lacked the time and resources to move a significant number of
these case files into the court system successfully, resulting in a small number of actual
prosecutions.
European Union Rule of Law Mission in Kosovo (“EULEX”)
The EULEX mission was established to “assist the Kosovo authorities in establishing
sustainable and independent rule of law institutions.”70
When UNMIK was re-organized in 2008
and 2009 and scaled down, EULEX’s original mandate included the authority to assist Kosovar
institutions with the prosecution of crimes, including war crimes. From 2008 to 2018, mixed
panels of EULEX and local judges delivered 46 verdicts, only four of which involved war
crimes.71
EULEX received almost 1,200 war crimes case files that had been compiled by UNMIK
prior to its re-organization. These 1,200 cases each likely had multiple victims and multiple
perpetrators, presenting EULEX with thousands of victims in need of justice and thousands of
perpetrators not yet held responsible for their crimes. In 2018, EULEX ended its judicial
mandate and “[handed] over 900 unresolved [case files] to the local Special Prosecutor’s
Office.”72
The local Special Prosecutor's Office only has two prosecutors assigned to war
crimes.73
Additionally, as noted by Bernd Borchardt, who served as EULEX Head of Mission, the
majority of individuals suspected of war crimes committed against Kosovar Albanians during the
war are individuals associated with Serb military or police forces who are no longer in Kosovo.74
As Kosovo and EULEX only have jurisdiction over individuals within Kosovo’s territory, they
can take extremely limited action to prosecute these individuals.75
Serbian War Crimes Chamber
Serbia has made minimal effort to investigate and prosecute crimes perpetrated by
Serbian forces during the Bosnian, Croatian and Kosovo conflicts. Until 2003, Serbia left such
prosecutions to local courts that were ill-equipped to prosecute such cases. In 2003, under
international pressure for greater accountability, the Serbian Assembly created a War Crimes
Chamber and an Office of the War Crimes Prosecutor to handle the prosecution of war crimes
committed in Serbia.76
However, these entities have been plagued by the “lack of political will,
adequate resources, and weak witness support mechanisms.”77
Through 2018, the Chambers had
issued 44 final judgments, convicted 74 perpetrators, and acquitted 50 individuals for crimes in
the conflicts in Bosnia, Croatia, and Kosovo. Very few of these prosecutions were of highranking officials.78
Moreover, only a couple of the cases pertained to crimes committed in
Kosovo, or addressed conflict-related sexual violence.
The Specialist Chambers and Specialist Prosecutor’s Office
In 2015, the Assembly of the Republic of Kosovo amended its Constitution to provide for
the authority to create a Specialist Chambers and a Specialist Prosecutor’s Office within
Kosovo.79
Acting upon this authorization, the Kosovo Assembly passed the Law on Specialist
Chambers and Specialist Prosecutor’s Office (Law No. 05/L-053), which establishes the two
institutions and provides for their jurisdiction, rules of procedure and evidence, structure, and
competencies.80
The Kosovar government and the Dutch government agreed to locate the
Chambers and Office in The Hague.
The Specialist Chambers has subject-matter jurisdiction over the crimes set out in
Articles 12-16 of the Law, including: crimes against humanity, war crimes, and other crimes
under Kosovo law.81
The Specialist Chambers’ temporal jurisdiction covers crimes that occurred
between January 1, 1998 through December 31, 2000. The Specialist Chambers has territorial
jurisdiction over crimes either commenced or committed in Kosovo.
Public commentary suggests that the Specialist Chambers’ jurisdiction may be narrowly
interpreted to focus only on the alleged crimes of ethnic Albanians and members of the KLA.
This interpretation looks to be guided by the court’s history rather than a precise legal analysis of
its founding documents. The court was created in the wake of an inquiry authorized by the Council of Europe, and led by Swiss diplomat, Dick Maarty, into allegations of serious offences
perpetrated by organized crime and members of the KLA during and in the immediate aftermath
of the Kosovo conflict.82
As explained below, a close reading of the Chambers’ constituting law reveals an even
broader mandate that includes the authority to investigate and prosecute perpetrators of any
ethnicity. Currently, the Chambers are still engaged in the initial stages of investigation and
have yet to indict any suspects. This offers an important opportunity to clarify the Chambers’
ability and commitment to closing the accountability gap.
THE UNMET NEED FOR JUSTICE
Despite the efforts of the Yugoslav Tribunal, the attempts of the UNMIK Regulation 64
Panels, and the efforts of EULEX, there is a dramatic accountability gap for war crimes and
crimes against humanity committed against the people of Kosovo. An estimated 850,000
Albanians were forcibly expelled from Kosovo, 590,000 internally displaced within Kosovo,
20,000 victims of conflict-related sexual violence, and several thousand civilians murdered
during the conflict.83
Selectively prosecuting a few military and political leaders from the
Serbian regime is undeniably valuable, but nevertheless insufficient.
Perpetrating mass atrocity requires multiple actors to jointly commit international
crimes.84
These actors can range from regular civilians co-opted by the state or paramilitaries to
facilitate heinous acts, to ordinary soldiers, senior military officers, and political leaders.85
Following the Bosnian war, an International Crisis Group Report found that while some
perpetrators had been indicted by the Yugoslav Tribunal, many “continue[d] to work in the
police force, hold public office, exercise power through the legal and illegal economy, or
influence politics from behind the scenes.”86
Undoubtedly, a similar phenomenon has occurred
in Kosovo as well. The range of perpetrators involved in perpetrating international crimes
during the Kosovo conflict spanned the broadest spectrum, but only a handful of select and
mostly high-level actors have been prosecuted to date. Although the previous judicial bodies
made important progress, a vast number of perpetrators continue to walk free in Serbia.
For example, a recent report prepared by the Humanitarian Law Centre details the
absence of any inquiry into mass graves found in Serbia that contained the bodies of 940 Kosovo Albanians, mainly civilians, who were killed outside of combat situations.87
The report, which
compiles eyewitness testimony corroborated by evidence from the Yugoslav Tribunal, suggests
the graves were part of a coordinated plan carried out by senior Serbian leadership in 1999 to
conceal evidence of crimes against Kosovo Albanian civilians.88
However, nearly all those who
planned and carried out the crimes have not been indicted for their actions.89
The accountability gap was further aggravated by the limited capacity of UNMIK and
EULEX professionals to properly administer war crimes cases. In addition to struggling with
meagre resources and narrow mandates, UNMIK and EULEX officials possessed little to no
expertise on how to handle war crimes matters.90
The deficit in capacity extended to the entire
justice system, including judges, prosecutors, defense lawyers, and investigators. This limited
the ability of UNMIK and EULEX to deliver accountability appropriate to the volume of
perpetrators and crimes involved.91
The Importance of Accountability
It is imperative to obtain accountability for mass atrocities. In post-conflict settings,
securing justice plays five key roles. First, it helps to establish individual responsibility and deny
collective guilt.92
Particularly in ethno-political conflicts, accountability helps to distinguish
between the culpability of individual perpetrators and the social, ethnic, and religious groups
they belong to, preventing that group from being blamed as a whole.93
Isolating the blameless
from the blameworthy through criminal processes can foster acknowledgement of the
commonality rather than division that exists between a plurality of the individuals belonging to
rival groups. This can also help establish a pathway to reconciliation between the ordinary
civilians caught in the ethno-cultural crossfires of conflict.
Second, the pursuit of justice helps to discredit the leaders and institutions responsible for
the crimes.94
The indictment of Milošević, for instance, was a key part of the effort to
delegitimize his rule. Third, in undergoing judicial proceedings, the collection and presentation of evidence aids in the establishment of an accurate historical record.95
The chaos of conflict can
bury evidence, but the concentrated and intentional efforts of criminal investigators can help to
unearth evidence of serious atrocities and illuminate truth amidst revisionist history.
Fourth, justice plays a large role in providing victim catharsis.96
Without justice,
perpetrators are seen to be “getting away with it,” a feeling that can breed individual and
communal dissatisfaction and resentment.97
Finally, efforts to achieve accountability play a role
in the deterrence of future atrocity crimes.98
Sending perpetrators to jail sends an important
message to the broader world that there are consequences for committing of such crimes.
In the context of the serious and widespread violations suffered by victims during the
Kosovo conflict, accountability has not yet been satisfied. Justice requires a comprehensive
investigation into conflict-related abuses and steps to hold perpetrators accountable. Rarely has
the conducting of a few criminal trials satisfied the requirements of international law. Each
individual victim, not the collective, has a right for their violation to be investigated and
punished where appropriate. To this point, the pursuit of accountability for crimes committed
during the Kosovo conflict remains incomplete. While the Yugoslav Tribunal, the UN, the EU,
and domestic justice actors have made some progress, there remains an accountability gap,
particularly in relation to the prosecution of conflict-related sexual violence.
A Critical Gap: Conflict-related Sexual Violence
A particularly egregious example of the gap in accountability left by the previous judicial
mechanisms is their failure to appropriately seek justice for conflict-related sexual violence.
Conflict-related sexual violence is defined as “rape, sexual slavery, forced prostitution, forced
pregnancy, forced abortion, enforced sterilization, forced marriage and any other form of sexual
violence of comparable gravity perpetrated against women, men, girls or boys that is directly or
indirectly linked to a conflict.”99
Reports approximate that 20,000 individuals were the victims
of conflict-related sexual violence during the Kosovo conflict.100
A Human Rights Watch
investigation concluded that “rape and other forms of sexual violence were used in Kosovo in
1999 as weapons of war and instruments of systematic ‘ethnic cleansing.’ Rapes were not rare and isolated acts committed by individual Serbian or Yugoslav forces, but rather were used
deliberately as an instrument to terrorize the civilian population, extort money from families, and
push people to flee their homes.”101
Despite this, only a handful of perpetrators have been held
accountable for their actions.102
There a number of factors that contribute to the difficulties in providing accountability
for conflict-related sexual violence. The deterioration of public institutions and infrastructure
during conflict contributes to a “near universal failure to collect evidence of crimes of sexual
violence during the emergency and conflict periods.” 103
In Kosovo, however, the failure
extended beyond evidence collection difficulties. According to a report by Amnesty
International, UNMIK possessed hundreds of statements on conflict-related sexual violence that
had been collected by NATO’s peacekeeping force in Kosovo or given to UNMIK directly. Yet,
UNMIK rarely opened an investigation into these cases, and for those it did, it took years for an
investigation to begin.104
Overall, UNMIK showed “a shocking disregard for the rights of
victims” with UNMIK officers failing in a large number of cases to record statements, send files
to appropriate personnel, promptly document evidence, or properly apply safeguards to protect
witnesses.105
Ultimately, UNMIK only performed two retrials for cases of conflict-related sexual
violence, and the transcripts of both reveal improper application—whether intentional or due to
lack of proper training—of the particular evidentiary standards that apply to victim testimony.106
UNMIK officials did not issue a single new indictment for a crime involving conflict-related
sexual violence.107
Moreover, when UNMIK’s cases were later passed along to EULEX, officials similarly
failed to fill the accountability gap. From 2008 to 2018, EULEX prosecuted 38 war crimes cases
of the almost 1,200 war crimes files it inherited from UNMIK. Only two of these 38 cases
addressed conflict-related sexual violence.108
Progress in achieving accountability has been limited by the strong social stigma that
surrounds conflict-related sexual violence in Kosovo,109 as it does in many countries. Victims
are often reluctant to come forward for fear of an impending backlash by members of their
family or community.110 This is compounded by the lack of effective witness anonymity.
Testifying before courts carries the very strong risk of victims being re-traumatized by the
process or rejected by society.111
The availability of protective measures and psychosocial
support can help alleviate those risks, but judicial institutions have been failed to offer the
assistance necessary to make victims feel safe and prepared to testify.112
Investigators, prosecutors, and judges also regularly lacked the training necessary to
successfully pursue justice for victims of conflict-related sexual violence.113
These trials require
an added level of sensitivity, compromise, and understanding, which the judicial actors often
lacked, in order to account for the psychological and social effects of the physical violence.
According to a Senior Medical Advisor at the International Committee of the Red Cross, such
trauma may include behavioral disorders, such as post-traumatic stress disorder, and often carries
a strong stigma causing victims to be shamed, ostracized, and even “treated by their families and
communities as if they have committed a crime.”114
Appropriately supporting victims of
conflict-related sexual violence and combating these psychosocial ramifications thus requires
additional judicial measures, such as confidentiality protections, post-investigation follow
through, and the provision of additional medical support resources to victims. Yet, many
involved with investigating and prosecuting sexual violence in Kosovo lacked specific training
on how to approach such issues. Investigators, prosecutors, and judges often did not know what
evidence to look for, how to collect it, or appropriate ways of managing the testimony process.115
This lack of appropriate training has led to inappropriate and harmful decisions by the
involved justice mechanisms. For instance, in the Furundzija case, the Tribunal ordered the
release of a rape victim’s psychotherapy records to the chamber after finding the records material
to assessing the victim’s credibility as a witness.116
In its order, the Tribunal subpoenaed the
non-governmental counseling organization to turn over all documents related to the victim’s
treatment, which, after being reviewed by the Chamber, were disclosed to both the prosecution
and defence.117
The order was criticized by victim’s groups and survivors who argue the
Tribunal’s decision has chilling effect on the willingness of victim’s seek therapy and come
forward.118
Notably, many Serbian military and paramilitary perpetrators responsible for conflictrelated sexual violence live outside of the territory of Kosovo.119
Lacking jurisdiction over
individual perpetrators outside of its territory, Kosovo’s domestic accountability mechanisms
have struggled to investigate and charge perpetrators located in Serbia.120
As reported by
Amnesty International, these difficulties have been aggravated by Serbia’s “continuing culture of
impunity [which] prevents the prosecution of police, para-military groups and military
commanders reasonably suspected of war crimes, including CRSV [conflict-related sexual
violence] in Kosovo.” 121
Serbia’s minimal cooperation with Kosovo’s judiciary has thus added
to the accountability gap.
CLOSING THE ACCOUNTABILITY GAP
Kosovo Specialist Chambers
A close analysis of the the Specialist Chambers’ constituting law indicates that the body’s
jurisdiction is broader than simply prosecuting ethnic-Albanians and members of the KLA. The
court’s subject matter jurisdiction is triggered for crimes that “relate to” the Counsel of Europe
report.122
For the purposes of interpreting the court’s jurisdiction, it is important to distinguish
between what prompted the report and what the report contains. In addition to alleged KLA
abuses, the report reveals crimes that may involve other perpetrators, such as the thousands of
disappeared who are still unaccounted for,123 and acts of conflict-related sexual violence.124
These findings suggest the court’s subject matter jurisdiction includes the authority to inquire
into criminal acts that extend beyond the abuse allegations which prompted the report. This
would include the authority to investigate and prosecute perpetrators of all crimes that were
committed during the Kosovo conflict. In addition to identifying crimes that may relate to
perpetrators from multiple ethnicities, the contents of the report, which are not meant to be
exhaustive findings, include general conclusions about the accountability gap. The report
explains that the purpose of its inquiry “was not to conduct a criminal investigation,”125 and
instead emphasizes the requirement to deliver accountability for all conflict-related crimes.126
The existence of and need to address widespread impunity are at the heart of the report’s
findings. Such findings square with the obligations embodied under international law, which
require states to investigate and prosecute those responsible for committing serious violations of
international human rights and humanitarian law.127
To characterize the Council of Europe
report as merely concerned with evidence of crimes alleged to have been committed by one party
to the conflict does not paint a complete picture. The report also highlights broad gaps in
accountability and demands that impunity for crimes should be ended comprehensively. In this
light, the court’s jurisdiction necessarily includes both the authority to investigate crimes
revealed by the report—including disappearances and conflict-related sexual violence—as well
the crimes it did not. Contrary to some perceptions, therefore, the court is bestowed with a broad
and ethnically neutral manate.
Additionally, a narrow interpretation would be at odds with customary international
practice in the creation of similar accountability mechanisms. In the modern era of international
criminal law, courts and tribunals have been established to look into situations and contexts, not
specific ethnicities or predetermined groups. In this context, an ethno-specific tribunal would
widely be viewed as illegitimate. The mandates of international courts and tribunals have all
broadly included the ability to deeply investigate and prosecute whomever is responsible for the
international crimes related to a specific geographic and temporal scope. The Yugoslav
Tribunal, for example, prosecuted individuals for crimes perpetrated in the dissolution of the
former Yugoslavia, the Rwanda Tribunal prosecuted individuals for the Rwandan genocide and
its associated violence, the Special Court for the Sierra Leone prosecuted individuals for crimes committed during the Sierra Leone civil war, the Extraordinary Chambers in the Courts of
Cambodia prosecuted individuals responsible for atrocities committed during the Khmer Rouge
regime, and even the Special Tribunal for Lebanon—which was created to investigate and
prosecute those responsible for the assassination of former Lebanese President, Rafic Hariri—is
empowered to prosecute whoever is most responsible for the assassination, regardless of ethnic
or group affiliation.
Nevertheless, it may be important to clarify the issue and Kosovo should take the
opportunity to confirm the court’s broad mandate. The Chambers is a product of the Kosovo
Constitution, so Kosovo has the power to decisively affirm the court’s jurisdiction and
commitment to ending impunity for all war-related crimes. If necessary, the Kosovo Parliament
may even direct the Specialist Chambers to prioritize particularly heinous crimes largely ignored
by other mechanisms, such as conflict-related sexual violence. Explicitly clarifying the court’s
broad mandate will strengthen the court’s legitimacy and help support intercommunal
reconciliation efforts. Doing so is also consistent with Kosovo’s international obligations, which
require it to ensure accountability for all serious abuses of international law.128
An Added Advantage: Victim Participation
The Specialist Chambers, if appropriately reconceptualized, would also be particularly
well-placed to address gaps in accountability because of its innovations regarding victims
participation in the trial process. In traditional criminal proceedings, victims may only
participate as witnesses—they cannot make submissions, test evidence, or deliver statements.
Those rights belong to the prosecution and defense, meaning victims must rely on the two parties
with standing to pose questions that are sufficiently capable of revealing the truth. Previous
attempts at accountability in Kosovo have all famously lacked victim participation rights, leading
some to suggest that the historical record established by those mechanisms fails to fully capture
victim interests or the impact of the crimes on their lives.129
To address this concern, the Kosovo
Specialist Chambers has rules that permit victim participation through a court-appointed
lawyer.130
These provisions represent the cutting edge of international criminal justice, and
mirror similar measures adopted by the ICC and the Cambodia Tribunal. Under these rules,
victims have the opportunity to independently add to and correct the factual record by way of
their involvement. This ensures a more complete accounting of the violations and harm
perpetrated during the Kosovo war.
The right to victim participation is codified in the Specialist Chambers statute and rules
of procedure, which broadly permit victims to engage in all stages of proceedings,131 and include
measures to ensure victim security. Among other things, the statute creates a Victims Participation Office in the court Registry132 and entitles victims to group representation by an
appointed lawyer, known as “Victims’ Counsel.”133
The modalities of participation provided by
the court’s laws are broad, empowering victims to participate through their legal representative
in a variety of ways, including: (i) applying for protective measures and the non-disclosure of
identity; (ii) attending depositions and questioning deponents; (iii) presenting opening and
closing statements; (iv) delivering oral and written submissions; (v) and asking questions of
witnesses.134
Importantly, Victims’ Counsel is entitled to full disclosure from the prosecutor,
including the evidence supporting the indictment and any other material evidence within the
prosecutor’s possession.135
Victims’ Counsel may also petition the court to order the submission
of additional evidence if that produced by the parties fails to adequately address the impact of the
alleged crimes on the victims of those crimes.136
A key challenge to addressing gaps in accountability in Kosovo is establishing an
accurate historical record. The right to victim participation at the Specialist Chambers is one
measure that promises to strengthen the record by offering victims an opportunity to tell and
clarify their stories. While the concept of victim participation is still evolving under
international criminal law, the robust provisions of the Specialist Chambers, and in particular, the
ability for Victims’ Counsel to protect and articulate victim impact, can help facilitate greater
recognition of the harms suffered, empower victim communities, and identify gaps in
accountability.
Universal Jurisdiction
As the Specialist Chambers moves forward and continues to develop, there are a number
of other mechanisms for accountability and victim reparations that could be pursued to increase
accountability for international crimes in Kosovo.
One method for international accountability includes the prosecution of war criminals
through foreign domestic courts under the principle of universal jurisdiction. According to the
principle of universal jurisdiction, states are authorized to investigate and prosecute certain
heinous international crimes regardless of the accused’s nationality, country or residence, or
connection to the prosecuting state.137
The rationale behind universal jurisdiction is that some
international crimes are of such magnitude that all states have an interest in preventing and
prosecuting those crimes.138
The crimes that trigger universal jurisdiction are accordingly
limited in scope and concern the most serious violations of international law, including:
genocide, crimes against humanity, war crimes, ethnic cleansing, and torture.139
While states are not obliged to exercise universal jurisdiction, some have enshrined the
principle within their domestic laws.140
Others have created dedicated special prosecutors
offices to investigate and try the most serious crimes under international law.141
States have
begun using these tools to bring universal jurisdiction cases for war crimes related to Syria, for
example, where the principle has enjoyed renewed interest from the international community. A
similar approach could be taken for Kosovo, where states could bring cases under the principle
of universal jurisdiction to fill gaps in accountability related to the war. Taking this approach
cannot singlehandedly end the impunity of course; it can merely supplement complementary
efforts. However, states are not prevented from taking action on their own and may use
universal jurisdiction to prosecute Kosovo war criminals who enter their territory
Independent Evidentiary Mechanism
Recently, the international community has begun establishing Independent Mechanisms
for the documentation of international crimes committed during particularly heinous conflicts.
In December 2016, the UN General Assembly created the first of these mechanisms for the Syria
conflict. The International, Impartial, and Independent Mechanism (“IIIM”) was established to
“collect, consolidate, preserve and analyze evidence of violations of international humanitarian
law and human rights violations and abuses and to prepare files in order to facilitate and expedite
fair and independent criminal proceedings, in accordance with international law standards, in
national, regional or international courts or tribunals that have or may in the future have
jurisdiction over these crimes, in accordance with international law.”142
Then, in September
2018, the UN Human Rights Council followed the General Assembly’s lead and created a
similar Impartial and Independent Mechanism for evidence of the genocide committed against
the Rohingya population in Myanmar.143
The Mechanisms for Myanmar and for Syria work to
document the atrocities of their respective regions and prepare files that can be used in
accountability proceedings when appropriate mechanisms—whether international ad hoc
tribunals or otherwise—are established.
The pursuit of justice in Kosovo does not require a mechanism to prepare files in
anticipation of a judicial mechanism, but Kosovo could benefit from a similar institution that
properly consolidates and preserves both the evidence already collected by prior judicial bodies
and that not yet collected. The proceedings at the Yugoslav Tribunal, UNMIK Regulation 64
Panels, and EULEX hybrid courts all required significant evidentiary work that should not be
lost or hidden in non-accessible archives. Moreover, there are substantial amounts of additional
testimony, witness reports, and other corroborating evidence that exists yet has never been formally recorded or organized. For example, Kosovo Police War Crimes Investigators reported
there are a number of cases for which women provided testimonies years ago that do not have
proper records, and a number of women’s group have protested that information on rape and
sexual assaults that they spent resources gathering in the aftermath of the conflict was lost by the
UN Mission in Kosovo.144
The creation of an evidentiary institution could thus serve an
important role in establishing an accurate historical record. In turn, the knowledge amassed
would help to validate the pain endured by individual victims as well as provide collective
recognition of the atrocity crimes that occurred during the conflict.
Non-Amnesty Based Truth Commission
In the absence of the full and complete prosecution of all perpetrators, the existence of an
independent mechanism for the documentation of crimes would be a significant step towards
justice and reconciliation. There are also other mechanisms that can assist in the codification of
an accurate historical record. The most notable of these mechanisms is a non-amnesty based
Truth and Reconciliation Commission. These commissions differ from the Independent
Mechanisms created for Syria and Myanmar as they are not focused on preparing documents
according to evidentiary standards of international law. While the later is preferable for
accountability, the former may still help in the healing and reconciliation process by providing a
degree of closure and assuaging some of the lasting trauma of the atrocity crimes.
Moreover, the creation of such a record by either an Independent Mechanism or nonamnesty based Truth Commission can be instrumental in providing a foundation from which
other forms of transitional justice are based. Victim compensation, for instance, relies on there
being accurate information on those who have status as victims, a status that may be contentious
without a reliable historical record from which to ground the claim. Other forms of reparations
are similarly undergirded by the establishment of an accurate historical record. These include
restitution, such as the restoration of property, residence, employment or other liberties, and
rehabilitation, whether through the provision of medical and psychological services or forms of
communal support.145
Memorialization is also a form of “symbolic reparations” that relies
heavily on documentation to build sites within fraught communities that can bridge the tense
legacies of the conflict.146
The process of constructing physical testaments to collective
memories has a gained traction in recent years as an essential pillar of transitional justice.147
CONCLUSION
During the Kosovo conflict, hundreds of thousands of Kosovo Albanians were subjected
to war crimes and crimes against humanity, including forced deportation, murder, torture, rape
and other acts of conflict-related sexual violence. Despite there seeming to be a plethora of
international and domestic mechanisms designed to bring to justice those responsible for these
crimes, there is a dramatic accountability gap. Only a small handful of individuals have been
indicted and prosecuted for their actions. Thousands of perpetrators remain free and enjoy de
facto immunity. Hundreds of thousands of victims remain without justice.
The Specialist Chambers for Kosovo presents an opportunity to afford justice to the
victims of the Kosovo conflict. It is imperative that the international community not be allowed
to distort the jurisdiction of the Court and narrowly tailor its focus to a defendant class of ethnic
Albanians and the KLA. To do so would run counter to the core foundations of justice and
accountability, and to basic principles of fairness and of equal justice.
Moreover, the Specialist Chambers embraces state of the art provisions for victim
participation and the protection and facilitation of witness testimony related to conflict-related
sexual violence. Given the dramatic under-prosecution of those responsible for these crimes, the
Specialist Chambers presents a rare opportunity to correct earlier failure to provide adequate
judicial redress to victims.
The United States should work with the government of Kosovo to affirm, and if
necessary clarify, that the mandate of the Specialist Chambers covers all crimes committed in the
territory of Kosovo, and is not limited to prosecuting members of a specific ethnic group of
alleged perpetrators. The United States should also work with the government of Kosovo to
encourage the Specialist Prosecutor’s Office, a part of the judicial system of Kosovo, to prioritize
the investigation and prosecution of rape and other conflict-related sexual violence.
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E shtun, 02 janar 2021 - 20:49
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