BIRN, July 13, 2020

Any peace agreement concluded between Kosovo and Serbia should not undermine efforts to hold wrongdoers accountable for atrocities during the 1998-99 conflict, said ex-prosecutor Clint Williamson, a former US ambassador for war crimes.

As Serbian President Aleksandar Vucic and Kosovo Prime Minister Avdullah Hoti prepared to resume the stalled dialogue between Serbia and its former province, and the 25th anniversary of the Srebrenica genocide was commemorated, a veteran of international justice in the Western Balkans, Clint Williamson, said that sustainable peace in the former Yugoslavia will be difficult to achieve without accountability for war crimes.

“We cannot allow that any peace process undermines efforts toward accountability,” former prosecutor Williamson told a discussion entitled ‘International Efforts on Justice and Accountability in the Balkans: 1990s-Present’, organised by the Balkan Investigative Reporting Network and the McCain Institute at Arizona State University in the US earlier this month.

This initiative for accountability requires continuing support from the EU and US if it is to succeed, he added, even though “the ability of political institutions [in former Yugoslav countries] to hold up the process that already started in The Hague is going to be limited”.

The last Kosovo-Serbia meeting, which was due to be held in Washington DC, was abruptly cancelled when the Specialist Prosecutor’s Office in The Hague announced on June 24 that it had prepared an indictment charging Kosovo President Hashim Thaci, senior Kosovo politician Kadri Veseli and other former Kosovo Liberation Army fighters with war crimes and crimes against humanity. Thaci was already on his way to the US for the meeting but turned back.

Specialist Prosecutor Jack Smith said he deemed it necessary to make the charges public because Thaci and Veseli were driving “a secret campaign to overturn the law creating the Court and otherwise obstruct the work of the Court in an attempt to ensure that they do not face justice”. The charges still need to be confirmed by a judge.

The Thaci indictment was the latest development in an investigation that was initiated in 2011 with the appointment of Clint Williamson as the chief prosecutor of the European Union’s Special Investigative Task Force, which was mandated to investigate the findings of a report by Council of Europe rapporteur Dick Marty. That report accused Kosovo Liberation Army fighters of involvement in murders, kidnapping, torture and organised crime both during and after the 1998-99 war in Kosovo.

The task force’s report led to the establishment of the Kosovo Specialist Chambers, which are part of Kosovo’s justice system but located in The Hague. One of the key reasons for this was to ensure the safety of witnesses, Williamson said.

“There was a feeling by witnesses Dick Marty interviewed in his investigation that they didn’t have faith that a fair trial could be conducted in Kosovo, where their personal safety couldn’t be guaranteed, and thus that they were unwilling to engage in the process if the trial was being conducted there,” Williamson explained.

Ensuring safety for protected witnesses testifying about crimes committed during the Kosovo war has been a problem for all the institutions that have been involved in the prosecution of such crimes over the years – the International Criminal Tribunal for the Former Yugoslavia, ICTY, the United Nations Mission in Kosovo, UNMIK, the EU rule-of-law mission in Kosovo, EULEX, and national courts in Serbia and Kosovo.

Anyone who dared to speak out about abuses committed by their own forces was seen as a traitor to their community, and some lost their lives. As a result, only few dared to become witnesses in war crime trials, and in most of these cases, it was a troubling experience for them.

“For these reasons we set up the [EU task force] investigation that I headed, in Brussels, with very sophisticated security structures and measures, incorporating lessons learned from the ICTY, UNMIK and EULEX trials. I know that this is still an issue of paramount concern for my successor Jack Smith,” Williamson said.

Hague Tribunal was ‘a huge success for justice’

Williamson, who served as the US ambassador-at-large for war crimes from 2006 to 2009, was also among the first prosecutors to join the then newly-established tribunal for the Yugoslavia wars, the ICTY, back in 1994.

“At the outset, very few people gave the ICTY any chance of success – the consensus in the early days was yes, the tribunal will be able to prosecute few low-level camp guards and then it would just fade away,” Williamson recalled. “At a time when the UN could not even guarantee the delivery of humanitarian aid in Bosnia, the idea that a UN court was going to be able to apprehend military and political leaders and put them on trial seemed preposterous to many people,” he continued.

“The fact that the ICTY was able to do it was a huge success for the concept of international justice and it paved a way for the courts that followed. Admittedly, the ICTY’s record is a mixed one:  it did end up bringing in most of the big fish related to the 1990s wars but it was an incredibly expensive and lengthy process,” Williamson added.

Williamson explained that because the scale of the crimes committed in the former Yugoslavia was huge and the ICTY’s resources were limited, a large number of cases were left to be prosecuted by national courts in the countries where the offences were committed.

“During my tenure as ambassador, I tried to foster better cooperation among these various entities as cross-border cooperation is critical to secure accountability. As we all know, many of the worst perpetrators committed crimes in one state and fled back to their home country afterwards, where they found shelter based on laws that forbid extradition,” he said.

“Cross border cooperation has produced some positive results, but they have been limited, particularly as that pertains to Bosnia and Herzegovina and also between Serbia and Kosovo,” he added.

Serbia, Croatia, Bosnia and Herzegovina and Montenegro have established certain levels of cooperation between prosecutor’s offices, but they still don’t extradite suspects to one other and often decide to take or reject cases on the basis of political decisions. The prosecutor’s offices are also poorly resourced, and still shy away from indicting high-level perpetrators.

According to Ivan Jovanovic, head of the UN Development Project’s regional war crimes project, the Western Balkans is still in dire need of international engagement, in particular support for prosecutor’s offices and institutions involved in searching for missing persons from the wars.

“In the next five years, we will be leaving the period in which something meaningful can be done to serve justice to victims, as victims, witness, suspects are passing away rapidly, or their memories of the events from the past are simply, due to the lapse of time, becoming less and less reliable for a court to base a conviction on,” Jovanovic told the discussion organised by BIRN and the McCain Institute.

“Unfortunately national prosecutions are still in need of technical support and political support so this region needs champions among the international community and influential countries to combine encouragement, inducement and even conditionality in their relations with the governments,” he added.

Kosovo-Serbia non-cooperation ensures impunity

The most difficult situation is between Serbia and Kosovo, whose war crimes prosecutors don’t collaborate at all, as Serbia still refuses to recognise the legitimacy of the authorities in its former province, which declared independence in 2008.

In the last few years, the number of prosecutions for Kosovo war crimes has significantly dropped. The EU rule-of-law mission in Kosovo, EULEX, which used to be in charge of war crimes prosecutions, downscaled its mandate last year and left war crimes cases to the domestic prosecutor’s office.

However, the EU failed to negotiate a war crimes agreement between Kosovo and Serbia which would allow the two countries’ prosecutors to cooperate amid continuing political tensions between the governments in Pristina and Belgrade.

As there is no official agreement between the two countries’ prosecutions, Pristina’s war crimes prosecutors can only get access to Kosovo-based victims and perpetrators, and Belgrade prosecutors can only deal with people in Serbia, which significantly limits the possibility of launching new and larger cases.

In most of the big cases, the perpetrators are in one country and the victims in the other.

Serbia also refuses to provide evidence and to cooperate in most cases, even when the requests from Kosovo are facilitated by the EU rule-of-law mission.

As a result, Kosovo’s prosecution is doomed to deal only with relatively minor cases, focusing on perpetrators who are on its territory.

Bekim Blakaj, the head of the Humanitarian Law Centre Kosovo, said that this means that Kosovo and Serbia are aiding impunity for war crimes.

“The results are devastating. Only 41 persons have been found guilty with final verdicts and sentenced in Kosovo, eight persons by the ICTY and 17 in front of the Serbian court, and less than 70 people were sentenced for war crimes in Kosovo and if we compare it with the number of victims, it was only a symbolic proportion,” Blakaj said in the group discussion.

“We have been requesting that the issue of missing persons and cooperation be part of the [Kosovo-Serbia] dialogue and these two topics were never on the agenda, and the international community should put this on the table,” he added.

Blakaj argued that the international community should invest in building up local judicial capacities, as they could offer long-term solutions to the problem of impunity.

“Ad hoc courts [like the Kosovo Specialist Chambers], their mandate is limited, those courts will close their doors, but the problem is with our domestic courts, especially in the case of Kosovo,” he explained.

But Williamson warned that we may not see a renewed engagement in the issue of war crimes prosecution from the international community – particularly from the US, for which accountability has not been a focus under the current administration.

“Presumably the Specialist Chambers will be the last internationalised justice process in the region, bringing to an end a very unique degree of engagement by the international community in accountability,” he said.

“If the indictment [of Hashim Thaci and other ex-KLA fighters] is confirmed, we will embark on trials, and this process will likely go on for several more years,” he said. “All in all, we are talking about 30-plus years of international efforts to achieve justice in the Western Balkans, a commitment which is unprecedented and very unlikely to occur again anywhere else in the world.”

The discussion with Clint Williamson was organised as part of a new initiative by the Balkan Investigative Reporting Network, the McCain Institute for International Leadership at Arizona State University and Bakamo Agency that aims to foster open debate about issues, trends and events shaping politics and society in the Western Balkans.

The purpose of the initiative is twofold: to amplify the voices of strong and credible individuals and organisations in the region who promote the core values of democracy, such as civic engagement, independent institutions, transparency and the rule of law, and to promote domestic and international policies that bolster the core tenets of democracy, equality and social justice.

This effort comes at a critical time when the region is seeing several troubling trends: centralised power, reduced transparency, assaults on media, politicised judiciaries, unchecked corruption and social polarisation – all amidst heightened geopolitical tensions and deep divisions in Europe.