The Kosovo Special Tribunal based in Hague on November 5th indicted the President of the Republic of Kosovo, Hashim Thaçi, for war crimes and crimes against humanity. Joining him are three other Kosovo Liberation Army (KLA) political leaders, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi. Upon hearing the news, President Thaci resigned from his official post “in the name of the integrity of the institution of the Presidency”.
The Special Court, through a press release, officially announced that former leaders of the Kosovo Liberation Army are accused of murder, persecution and torture, forced disappearance of people between March 1998 and September 1999. They are also accused of murder in territory of the Republic of Albania. In the indictment, 39 places are mentioned as places where KLA leaders are alleged to have committed murders. The prosecution also mentions 17 detention centers, which according to the Special, were used to torture detainees. With the publication of the indictment against the four leaders of the Kosovo Liberation Army, the Special Tribunal also published the names of some other officials it considers “part of this criminal group”. According to the Special Court, some of them were not members of the “criminal enterprise but were used by the members of the enterprise to commit crimes”.
The Kosovo Specialist Chambers and Specialist Bureau Office (KSC & SPO) is a court of Kosovo, located in The Hague (Netherlands) through a bilateral agreement between the two States. The court was formally established in 2016 by decision of the Kosovo Parliament. To provide an adequate legal basis for the court, Kosovo’s constitution was changed, and a law was passed for it. The court has Brussels as its patron: it is made up of EU staff and has only international judges. The EU pays the costs of the court as part of its common foreign and security policy.
The court is set up to delegate the trials of crimes committed by members of the KLA. The alleged crimes concern the 1998-2000 period and were directed against “ethnic minorities and political opponents”. So it is more than evident that it is not an International Court, but a local Court that acts in territory outside the State sovereignty of Kosovo and has international judges. This is because it couldn’t be subject to political pressure from any of the political parties, because it could protect witnesses and because it could not cause ethnic violence inside the country.
The story of the creation of such a unique court in the world is particular. It all started in 2010 with the statements of a Swiss politician, Dick Marty, a member of the Parliamentary Assembly of the Council of Europe. He voluntarily wrote a report denouncing the inhuman treatment of people and the killing of prisoners for the purpose of illicit trafficking of human organs in Kosovo and Albania involving Hashim Thaçi himself, the prime minister of Kosovo at that time. The report was basically rumored, where no real evidence ever came out. The BBC itself reported in 2010 that “War-crimes investigators from Eulex (European Union Law and Justice Mission in Kosovo) told Mr Marty that the organ allegations were a gruesome ” fairytale “. They said the claims were distracting attention from the real task of finding some 1,861 people still registered as missing from the conflict in the region – two- of them Kosovar Albanians “. Marty’s report comes after the publication of a 2008 autobiography by Carla del Ponte, former prosecutor for war crimes at the Hague Tribunal. According to her reports, predominantly Serbian prisoners were allegedly taken to a “yellow house” in central Albania from June 1999 to May 2000, where their organs were systematically removed and sold by members of the KLA. But three parallel international investigations, conducted by war crimes investigators from Serbia, the European Union and the Council of Europe, failed to uncover any evidence that the Kosovo Liberation Army (KLA) trafficked organs from prisoners. The details in Marty’s report on the alleged organ trafficking centered less on the story of the “yellow house”, but more on another plant just north of Tirana. Marty was clearly driven by his pro-Serbian sentiments and had always openly opposed Kosovo’s independence. Although there was no evidence, this was probably the impetus for the United States and Europe to try to find mechanisms and institutions by which alleged crimes committed by members of the KLA during the war in Kosovo were also tried. No one can know why such a particular and absolutely unique court was insistently requested by Kosovo’s western allies. Clearly Europe was never united in accepting NATO bombings against Serbia during the war in Kosovo, and despite the Bosnian experience and genocide and ethnic purge by Serbs in Kosovo, the European chancelleries were divided and not at all unanimous on the bombing of Serbia and the recognition of Kosovo’s independence. On the other hand, the United States, which were the true protectors and allies of the new State of Kosovo, needed to demonstrate to Europe that those bombs were necessary and that the crimes committed had to be judged in the same way wherever they were committed. On the Kosovar side, it was evident that no one could like the version that the crimes were the same. The KLA war was a liberation and just war and in a just war its fighters cannot be criminals. Yet the constitution of the Court was approved and supported by the same Thaci who is today in the dock of the accused. Couldn’t he say no to the allies? Or did he really see it as a cleaning tool too? Surely a recently independent State and without being recognized by many could not have the luxury of saying no to its major allies. But in addition to this, President Thaci himself, faced with an initiative to revoke the law that established the legal basis for the court by some members of parliament, argued that the establishment of the court was the lesser of two evils. “We had two opportunities: that this tribunal was set up by the (UN) Security Council with Russia and China, or it was set up by us in our legal framework.”
What went wrong? Why is the court again choosing an emblematic date, November 5, amidst the US elections, to indict the KLA chain of command 20 years after the end of the war? Why did Eulex have to show off by going to everyone’s houses and accompanying them on airplanes that would take them to The Hague? My Italian experience leads me to compare the “Tangentopoli” process in Italy with what has happened. A democracy has its own independent bodies and the judiciary is one of them. In Italy, faced with a corrupt Christian Democrat and Socialist Party, the judiciary canceled an entire political system and gave birth to what would be called the second Republic. Is this perhaps the purpose of the Special Court? To cancel a political class to make room for a new Republic? If so, the Tribunal has perhaps forgotten its primary purpose: to condemn war crimes between 1998 and 2000. It is true that even with the latest elections, the people have shown that they are tired of a corrupt political class, incapable of produce changes. But the Special Tribunal was not created for this.
Or what has happened has only to do with adversary dynamics between the European Union and the United States? Or within the United States itself? If so, we will certainly not be able to prove it. But what I can do is a definitive analysis of the state of affairs at the moment. The court decides to impeach (and intuition tells me that again as in previous times, they will be found not guilty) the President of the Republic of Kosovo, the key man in various international processes including the dialogue with Serbia. Clearly Kosovo is from now on in a position of weakness in this regard. The court decides to bring all the KLA commanders to the dock, blaming them individually for the group.
UCK (KLA) was not a criminal and terrorist group, but a national liberation movement facing genocide and ethnic cleansing. The result can only be a radicalization of people’s feelings. If many people were tired of post-war politicians, they cannot accept to throw in the mud one of the most glorious moments of their history in hundreds of years. They cannot accept that victim and butcher are considered equal. And if by chance no evidence will be able to convict them for crimes committed during the war, the court that probably wanted to do some kind of cleansing of the political class, will end up with politicians who come back stronger than before. The many testimonies between yesterday and today express pain. The common feeling is the bewilderment, the emptiness, the trauma of war and the fear of being able to take a dream that has become reality: the birth of one’s own State. And it didn’t come true by magic, but it has been the fruit of pain, blood and sacrifice for hundreds of years.
The Italian experience always teaches me that with “Tangentopoli” the judiciary made the Christian Democrat Party and the Socialists disappear but threw Italy into the hands of Berlusconi and Lega Nord for 20 years. Alternatives through the courts when politics becomes more important than the law do not always lead to better results.
Read also: Kosovo: political or justice decision?
