Finding peace but not justice? Kosovo post-conflict communities’ experience and the limits of international justice mechanisms

Could you ever move on and reconstruct your life after having been a victim of war crime while knowing that the persons responsible for all your traumas are free? No one should, but thousands of people currently are all around the world. The head of Kosovo’s Committee for Crime Victims Compensation, Nesrin Lushta, claimed in February 2022 that not a single victim of war crime had obtained compensation, two decades after the end of the Kosovo war (Balkan Insight, 2022). The major international ethnic conflict illustrates the limits of international justice mechanisms, and the general consequences of this failure on post-conflict communities, to which justice is denied. Even war has limits, and their breach should, in theory, lead to the conviction of war criminals and reparation for their victims. In practice, the international community generally demonstrates great efforts to secure peace, little to ensure justice, at the expense of the first victims of the conflicts. 

The former Federal Republic of Yugoslavia (FRY), constituted of the current Serbia and Montenegro, remained a State Union over the period 1992-2006. While mostly composed of  ethnic Serbians, Serbia’s region of Kosovo was controlled by ethnic Albanians, against which the president of the FRY Slobodan Milošević was opposed. In 1989, he abrogated the constitutional independence of Kosovo, leading Albanians to protest non-violently. The following progressive radicalisation led to the formation of the Kosovo Liberation Army (KLA), and an armed insurgency by 1998, to which the FRY violently responded. The North Atlantic Treaty Organisation (NATO) intervened militarily from February 1999 until it signed a peace agreement with Yugoslavia in June setting the withdrawal of the Serbian troops and the return of almost a million of Albanians in Kosovo. First under the administration of the United Nations, Kosovo declared its independence in 2008, although never recognised by Serbia. 


        In order to force the displacement of Kosovar Albanians to regain control over the territory, the strategy of Slobodan Milošević’s army was terror. The war was qualified as ethnic cleansing on civilians, and engendered crimes against humanity and thousands of war crimes (deliberate and indiscriminate assaults on civilians). 20000 victims of rape have notably been identified by the Balkan Investigative Reporting Network. Two international institutions are able to judge those crimes: the International Criminal Tribunal for the Former Yugoslavia, and the Kosovo Specialist Chambers and Specialist Prosecutor’s Office. The first, a United Nations court of law (the first it created), has jurisdiction over crimes against humanity, war crimes, and genocides committed since 1991 over the territory  of the former Yugoslavia. Established in 1993, it was one of the rare ad hoc (temporary) courts to be already functioning during the conflict. Its mission ended in 2017. The second ad hoc court, thus only one still in function, has been specially implemented in 2016 to judge the crimes committed between 1998 and 2000. The institution is based on Kosovo’s law, which changed its Constitution to allow it to exist. However, both courts have had international staff and have been funded by the international community, generously. It is therefore highly surprising to learn the accomplishments of the two international justice mechanisms. 


Impunity of the criminals 

    Despite thousands of alleged crimes under their jurisdiction (numbers of casualties and crimes during wars can never be established precisely) and hundreds of millions of funding, only 25 individuals through 11 indictments had been judged for war crimes in 2020 (L’Osservatorio, 2020). This is first due to the great difficulty to find evidence, crucial to prove the criminals guilty. Investigating war zones for testimonies and proofs represents security, diplomatic, and logistic challenges, besides not being the priority of the international community. At the end of the war, often years after, obtaining material evidence among the remaining chaos is unlikely. Testimonies are therefore essential. However, if a significant proportion of criminals is not arrested, the risk of reprisal for victims wishing to take part in the trials constitutes a significant obstacle. Post-conflict communities are generally silenced, censored by taboos and fears. Despite some protective measures being put in place, “most witnesses and injured parties who had testified in court previously, failed to appear before the court, or had changed their statements provided during the investigation due to fear of reprisals” according to a 2008 report of the Organisation for Security and Cooperation in Europe (L’Osservatorio, 2020). The International Criminal Tribunal for the Former Yugoslavia notably dismissed, in 2008-2009, 500 cases for lack of evidence (European Council on Foreign Relations, 2013). Taking part in criminal proceedings can furthermore “re-traumatise” victims, especially victims of sexual violence. They are often stigmatised and blamed, further marginalising them. Kosovo had put in place a witness protection programme, which not a single victim has entered since 2004, due to a reported lack of trust in the justice system and fear of reprisals due to social stigma (L’Osservatorio, 2020). Post-conflict communities therefore face a dilemma: (hope of) justice and security threats, or eternal silence and impunity. In both cases, they will remain forever traumatised.         


Disregard of the victims 

    Even in the rare cases where evidence was found and criminals are convicted, victims are almost never awarded financial compensation. The Human Rights Advisory Panel denounced in 2008 the immense disregard for rights of civilian victims of the United Nations Mission in Kosovo, especially regarding the relatives of missing persons, which could be qualified as inhuman treatment (Amnesty International, 2013). The Ministry of Labour and Social Welfare of Kosovo decided in 2011 that it would not accept requests of reparations anymore. When applications have been made, administrative procedure would be unacceptably long, without explanation being given. Public clerks are generally unwilling to help potential beneficiaries, for example denying access to documents in their own languages to minority groups (Humanitarian Law Centre Kosovo, 2016). Individuals who had testified anonymously during criminal proceedings are also reluctant to claim compensation as it is a civil procedure, which does not integrate any victim protection mechanism. The possibility of obtaining some money is not worth risking getting killed. However, this should not be a dilemma post-conflict communities have to face. Kosovo further established in 2015 the Crime Victims Compensation Program, which has not approved a single request of victims of war crimes yet. Victims entitled to reparation are often not even aware of the existence of reparation regimes, which courts systematically fail to explain properly. Governments prefer convicting a few high-profile war leaders to support their high rhetoric than focusing on their population’s suffering. They therefore worsen the material issues of juste mechanisms, instead of researching for solutions. 


‌Peace without justice? 

    Those material and political problems are indeed severely impacting the very first victims of the conflict. Justice is     a human need to which all are entitled. It is also a crucial component of the peace process, at the individual and national scale. At the individual scale, victims, beyond facing a dilemma between justice and security, are mostly isolated. Stigmatised due to their health issues, war crime survivors experience difficulties to find a job, which are worsened if they take part in criminal proceedings, and have to be relocated by the witness protection programme. Besides loss of opportunities, they generally suffer from bad family and community relationships (Kosovo Rehabilitation Centre for Torture Victims, 2017). Individuals furthermore consider themselves as abandoned by the government, and experience a strong feeling of injustice. This resentment can lead to political extremism or violence against the other group. International justice mechanisms indeed have more polarised than reconciled. At the national scale, neither Kosovo nor Serbia have been very cooperative with the Courts, considering their suspected political leaders as national heroes, reinforcing their impunity (European Council on Foreign Relations, 2013). While justice mechanisms must be proportional to each part’s responsibility in the conflict, almost the same number of Kosovar criminals than Serbian have been convicted, although Serbia is responsible for the vast majority of the atrocities. None of the Serbian perpetrators got charged for rape or sexual crime as a standalone crime either (House of Representatives of the United States, 2019). The accountability gap reinforces populations’ mistrust in the institutions and governments.


    Kosovo’s experience illustrates the struggle of post-conflict communities all around the world, facing the material and political limits of international justice mechanisms.  Almost all war criminals remain free to this day, enjoying a de facto immunity, while victims continue to suffer, probably forever. Besides being against the universal principles of accountability and equal justice, governments’ attempt to secure without justice traumatises the communities yet another time. Traumatised and then further marginalised by justice mechanisms, post-conflict communities are stuck in a negative cycle of health issues, social exclusion, unemployment, violence, political extremism, … Justice is an inherent component of post-conflict peace, and ignoring it can only work on the short-term, until the calls from the population start to become too strong, and peace seriously endangered. 



Bibliography 

Deutsch, Anthony, and Toby Sterling. “ICC Faces ‘Myriad Challenges’ to Prosecute War Crimes in Ukraine.” Reuters, 2022, https://www.reuters.com/world/icc-faces-myriad-challenges-prosecute-war-crimes-ukraine-2022-03-04/.

“Four Years Later: Follow up of March 2004 Riots Cases before the Kosovo Criminal Justice System.” Organization for Security and Co-operation in Europe Mission in Kosovo, 2008.

Gregoire, Catherine. “Kosovo Civilian War Crime Victims: Challenges to Legal Reparations.” L’Osservatorio, 2020.
​
Haxhiaj, Serbeze. “Kosovo War Crime Victims Failing to Get Compensation, Official Warns.” Balkan Insight, 2022. https://balkaninsight.com/2022/02/07/kosovo-war-crime-victims-failing-to-get-compensation-official-warns/.

Kadriu, Arber, and Die Morina. “Pioneering Kosovo Rape Victim Relives Battle for Justice.” Balkan Insight, 2018. https://balkaninsight.com/2018/10/18/pioneering-kosovo-rape-victim-relives-battle-for-justice-10-18-2018/.

Kosovo Specialist Chambers & Specialist Prosecutor’s Office. “Kosovo Specialist Chambers & Specialist Prosecutor’s Office,”  https://www.scp-ks.org/en.

“Kosovo’s Wartime Victims: The Quest for Justice.” United States’ House of Representatives Committee on Foreign Affairs, 2019.
​
Kosovo Women’s Network. “KRCT Aims at Addressing the Stigma Surrounding the Survivors of Sexual Violence during the War in Kosovo,” 2017. https://womensnetwork.org/krct-aims-at-addressing-the-stigma-surrounding-the-survivors-of-sexual-violence-during-the-war-in-kosovo/.

Leicht, Lotte. “Kosovo War Crimes Court Can Promote Justice on All Sides.” Human Rights Watch, 2020. https://www.hrw.org/news/2020/11/13/kosovo-war-crimes-court-can-promote-justice-all-sides.

United Nations Human Rights Office of the High Commissioner. “Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (International Tribunal for the Former Yugoslavia),” 1993. https://www.ohchr.org/en/instruments-mechanisms/instruments/statute-international-tribunal-prosecution-persons-responsible.
​
The British Red Cross. “The Geneva Conventions”. https://www.redcross.org.uk/about-us/what-we-do/protecting-people-in-armed-conflict/geneva-conventions#:~:text=The%20four%20Geneva%20Conventions%2C%20agreed.

International Criminal Tribunal for the former Yugoslavia. “United Nations International Criminal Tribunal for the Former Yugoslavia,”  https://www.icty.org/en.

United Nations Security Council. “Resolution 1244,” 1999.

Walters, Mary Elizabeth. “A Tantalizing Success: The 1999 Kosovo War.” The Strategy Bridge, 2021. https://thestrategybridge.org/the-bridge/2021/7/9/a-tantalizing-success-the-1999-kosovo-war.
​
United Nations Office on Genocide Prevention and the Responsibility to Protect. “War Crimes,” https://www.un.org/en/genocideprevention/war-crimes.shtml.

International Criminal Tribunal for the former Yugoslavia. “What Is the Former Yugoslavia ?,” 2017. https://www.icty.org/en/about/what-former-yugoslavia.

Wippman, David. “Kosovo and the Limits of International Law.” Fordham International Law Journal 25, no. 1 (2001).
​
Zaum, Dominik. “International Justice and the Prevention of Atrocities.” European Council on Foreign Relations, 2013.