Written by Julia E. García Álvarez
Kosovo conducted a unique transitional justice process characterised by the presence of the international community. After the war in 1999, the entire region was taken over by the UN- Interim Mission in Kosovo (UNIMK) and from 2008 onwards, the EU Mandate in Kosovo (EULEX) could exercise executive power within the country (police and judicial intervention).
The aim of this article is to highlight the role played by EULEX in the criminal prosecution process in Kosovo after the war, how this external actor created Kosovar institutions and became part of them, providing international judges, prosecutors and police that worked together with Kosovar judges, applying local legislation. On the other hand, it also contains a critical evaluation of the work of EULEX, addressing not only the contributions but the failures on the investigation and prosecution of war crimes. Hence, since the EU placed responsibility over these missions, and eventually failed to protect and respect human rights, the EU holds responsibility for consolidating a culture of impunity in Kosovo.
Kosovo is a region located in the south-west of Serbia, and it concentrates eight different ethnicities. In 1990, the population of Kosovo was 81% Albanians, 11% Serbs and Montenegrins, 3% Gorani Moslem-Serbs, 2% Roma people and 2% other minorities. That year, a pacific movement organised by Kosovo-Albanians – that were being oppressed by the nationalist Serbs government of Milosevic – declared Kosovo independence, without the recognition of Belgrade. The tension increased between Serbs and Albanians and the continuous repression convinced many Albanians that only armed resistance would change the situation, which triggered the constitution of the Kosovo Liberation Army (KLA), and the beginning of the war (Nigel Thomas & K. Mikulan, 2013: 45).
The War in Kosovo started in February 1998 and finished in June 1999, taking all the international attention and ending with a NATO intervention. In February 1998 the Kosovo Liberation Army (KLA), an Albanian paramilitary organisation, launched guerrilla attacks on Serb police and civilians and soon, the KLA would control more than 30% of Kosovo. Serbian authorities, following Milosevic orders, responded to these attacks with severe measures against Kosovo Albanian civilians; including bombings, massive killings and murders. Milosevic’s strategy was to disguise Kosovo-Albanians ethnic cleansing as legitimate Serbian military action against the KLA. By August 1998, the Serbs had retaken 90% of Kosovo, with hundreds of soldiers and civilians killed, and about 360.000 civilians fleeing to Albania and Macedonia (Nigel Thomas & K. Mikulan, 2013: 48).
However, Serbian re-occupation did not work indefinitely; the international community reacted. The 23rd September 1998 the UN demanded a ceasefire, that Serb forces returned to barracks and that they permitted access for an international monitoring force, under threat of NATO air-force intervention. Although Milosevic initially complied with UN demands, he secretly ordered his units to attack the KLA in Kosovo in November 1998. NATO intervened with aircraft carriers, assault ships, destroyers and frigates attacking the military, causing an immense damage to Serbia’s infrastructure, worsening the humanitarian disaster. Finally, Milosevic admitted defeat on 4th June 1999, and on 10th June the peace was signed with NATO, a day after the ceasefire (Nigel Thomas & K. Mikulan, 2013: 52).
The legal order and all institutions in Kosovo collapsed after the war. The 10th of June 1999, the UN Security Council issued the Resolution 1244 which set out the basis of a transitional regime led by the UN in Kosovo. The UN Interim Mission in Kosovo which established strategies regarding civil administration, humanitarian affairs, economy and development, democratisation and rule of law institutions building, including the investigation and prosecution of war crimes.
On February 2008 the independence of Kosovo from Serbia was declared and this year the UNIMK was restructured and transferred all the competence and responsibility related to rule of law (including the prosecution of war crimes) to EULEX according to the President of the Security Council Statement (UNSC S/PRST/2008/44, 2008).
EULEX Contributions and Failures
EULEX was established in Kosovo in 2008 under the Common Security and Defence Policy of the European Union. EULEX’s competences and responsibilities consisted of exercising police and judicial power in Kosovo and monitoring the rule of law in Kosovar institutions. One of the EULEX tasks established to fulfil the Mission, was to “ensure that cases of war crimes, terrorism, organised crimes (…) are properly investigated, prosecuted and enforced according to the applicable law (…) by international investigators, prosecutors and judges jointly with Kosovo investigators, prosecutors and judges” (Council Joint Action, 2008). This means that EULEX judges worked together with Kosovar judges in local Courts applying not only international but local law and prosecuting war crimes. Hence, EULEX was in charge of the institutional rebuilding process previously to the war criminal prosecution process in order to ensure that it met all the judicial guarantees.
EULEX received 1200 war crimes from UNIMK in 2008. According to Kosovo Humanitarian Law Center (KHLC), since the beginning of the mandate until 14 June 2018, EULEX judges reached 479 verdicts in criminal cases including corruption, organised crimes, money laundering, war crimes and human trafficking. Only 11 out of 479 verdicts were about War Crimes against 41 Albanians,12 Serbs, and 1 Roma. The role of EULEX prosecutors and judges was to lead investigations and prosecutions showing professionalism and serve as an example to local judges (Humanitarian Law Center, 2018).
Also according to KHLC, the lack of willingness among civil society to support war crimes prosecution influenced the EULEX´s willingness to insist in solving these war crimes. KHLC also talks about the absence of accountability of EULEX towards this type of crimes (Humanitarian Law Centre, 2018).
In line with this argument, the Annex of the book Eulex´s Performance of its Executive Judicial Functions (2014) by Andrea Lozano Capussela, includes the analysis of the negligence committed by EULEX in three war crimes investigated and prosecuted under its responsibility, among others cases related to corruption and organised crimes.
The first case is against Limaj, who was a member of the parliament accused of corruption and war crimes, a former KLA fighter, considered by civilians as a “war hero”. He could only be arrested with the consent of the Parliament, but the leading faction of the elite and the international community wanted him to be arrested, and because they did not expect the Parliament would give the consent, they found an extraordinary and non-popular solution, taking the case to the constitutional court. EULEX was strongly criticised by a large part of the population. But the most important failure committed by EULEX exercising its executive judicial competences in this case was related to the protection of witnesses. The accusation of Limaj was mainly based on the statements and cooperation of one particular witness: a middle-ranking KLA fighter who reported to Limaj and commanded the KLA camp where the crimes occurred. This witness was presumably under protection when he was shot in the hand and leg. After the incident, EULEX relocated the witness in Germany where he was found hanged himself to a tree in a public park of Duisburg six months later. There is significant evidence that suggest that he did not enjoy the adequate protection and he was still identifiable, and that he and his family, still in Kosovo, were subject to psychological pressure and intimidation (A. Lozano Capussela, 2014). In general, witnesses who incriminated former KLA leaders were exposed to considerable psychological pressure, be considered as ‘traitors’ by an important part of the population and may end up as victims of intimidation, threats and murder.
And another point that reveals the incompetence and negligence of EULEX happened after the death of the witness, when the final and contradictory decision of acquitting several defendants, Limaj included, is made by EULEX court based on the consideration of the testimony of the main witness as “not wholly reliable” (EULEX pressrelease, 2013) even when there was enough evidence against the defendants (EULEX pressrelease, 2012). This case showed the weakness of the EULEX witness protection system and sent an intimidating message to other witnesses, who in many cases decided not to testify (New York Times, 2014).
In the second prominent case, there is a positive and remarkable determination of EULEX to arrest and judge two suspects of war crimes that were former KLA commanders and distinguished members of the elite political faction, acting bravely against the public criticism and the government. In fact, EULEX stated publicly on one occasion that “the rule of law is non-negotiable” (UNMIK Media Monitoring Headlines, 2014). However, the failure and imprudence in this case for which EULEX is responsible, is the decision of transferring the two suspects to a prison in Kosovo full of Serb prisoners, a very risky decision taking into account the two suspects were accused of committing war crimes against Serbs (Balkan Insight, 2014) This decision triggered the eventual escape of the two suspects from a hospital where they had being treated. After this occurrence, EULEX negotiated with the counsels of the fugitives and judiciary institutions and decided to overturn the decision of transferring the suspects to north Kosovo and the fugitives eventually handed themselves over to the police. Also, no further hearings related to this case have been held. Hence, EULEX, contradicting its previous statement, eventually did negotiate the rule of law (A. Lozano Capussela, 2014: 61).
Finally, the last case, unlike the previous, directly suggests that the political interest of the mission influenced the conduct of prosecutors and judges. Thus, in this case EULEX’s performance was against its own mandate and objectives. This time the suspects of war crimes were Serbs, and their detention happened to be suspiciously advantageous for the public image of EULEX. The arrest of the Serb suspects contributed to reducing the intensity of the attacks from the press, civil society and public opinion towards the mission for the negotiation of a protocol between EULEX and the Serbian government related to police cooperation. Moreover, the detention episode was reported by EULEX press with a non-typical emotional tone different from their usual neutral statements.
After the detention of the suspects, who were eventually acquitted due to discrepancy in the victim’s statement, the public opinion and press stopped mentioning the protocol and commented positively on the arrest, quieting the previous attacks. It also needs to be taken into account that most of the war crimes arrests were against KLA members, and only a few cases were opened against Serbs, probably because most of them fled Kosovo after the war. For that reason, the mission was often accused of being pro-Serbia and anti-Kosovo, and somehow this episode was beneficial to EULEX public image (A. Lozano Capussela, 2014: 66). Hence, the question is whether the political interest of the mission influenced EULEX prosecutors in this case, which, once again, would be very detrimental for the rule of law.
EULEX undertook the commitment to fight against impunity and develop war criminal prosecutions given the seriousness of the situation in Kosovo after the war and the following years. The responsibility of EULEX was, among others, to combat impunity in Kosovo by playing an impartial role that dealt with Kosovar political elite (some of them former members of KLA and other suspect perpetrators), and with the different positions and narratives among the ethnicities. However, EULEX was not able to carry out this impartial approach, probably influenced by the necessity of negotiation instead of punishment, in order to achieve a more stable and peaceful society, at the expense of maintaining an environment of impunity.
To conduct and execute a strategy to achieve transitional justice and effectively re-establish the rule of law in post-conflict areas is essential to achieve peace and justice for victims and institutional rebuilding. The case of Kosovo is a unique case, where the international community actively intervened and intended to set an example of post-conflict reconciliation and peace-building. EULEX provided international judges to courts and attempted to set an example in the war criminal prosecution process, consolidating impartiality and contributing to the achievement of justice. However, EULEX had to face the disapproval and rejection of a large part of the population, who saw them as strangers illegitimately named in charge of their institutions, interfering in their political life and judging political figures, who, as happened with guerrilla leaders, were widely recognised as heroes. This fact jeopardised EULEX mission, and required additional guarantees that EULEX failed to provide. Among others, EULEX failed to consistently maintain a determinant position of neutrality and impartiality. In some occasions, it failed to contribute to the enforcement of rule of law and the principle of judicial independence, and it failed to ensure witnesses’ safety and protection during war crimes prosecutions, hence the lack of testimonies affected the access and achievement of justice for victims and contributed to the impunity of perpetrators of war crimes.
Therefore, the passive performance of EULEX to face war crimes proves that the international community, on several occasions, was neither capable nor willing to investigate war crimes. Furthermore, this position of avoiding confrontation and not to insist in prosecuting war crimes is a violation of human rights standards committed by EULEX as special missions to which the EU had attributed the responsibility and obligation to prosecute war crimes perpetrators.
Although the international community frequently highlights the milestones achieved in Kosovo, it is also important to remember UNIMK and EULEX failures, which constituted human rights violations themselves, and contributed to build a climate of impunity for the commission of war crimes, and hindered the peace and reconciliation building process within the Kosovar society.