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Kosovo: UN Justice Mission Defends Prosecution Record

Top official responds to rights groups’ criticisms of his organisation’s handling of war crimes justice cases.
By Caroline Tosh
A senior United Nations official has hit back at claims that the mission set up to administer Kosovo has failed to establish effective justice mechanisms to handle war crimes prosecutions in the province.



In an interview with IWPR, Robert Dean, head of the mission’s justice department, DOJ, dismissed accusations by rights groups that judges, prosecutors and investigators involved in trying war crimes cases in Kosovo have been subject to political interference.



He also denied knowledge of alleged problems with transparency around prosecutions, and rejected claims that there was a massive backlog of prosecutions or lengthy delays for retrials.



At the same time, a DOJ spokesman challenged suggestions that there has been any bias against investigating or prosecuting ethnic Albanian war crimes suspects.



The UN mission was sent to administer the region following the conflict there in the late 1990s between the Kosovo Liberation Army, KLA, and Serbian security forces.



During the war – which broke out after the KLA began a campaign of armed resistance to Serbian and Yugoslav security forces in the province – thousands of ethnic Albanians were abused and displaced. Human rights groups report that war crimes were committed by the KLA both during and after the conflict, against Serbs, other ethnic minorities and ethnic Albanians accused of collaborating with the Serb authorities.



While the International Criminal Tribunal for the Former Yugoslavia, ICTY, has jurisdiction over Kosovo, it has only had capacity to try a very small number of high-level cases.



In 1999, UNMIK established the international judges and prosecutors programme in the province to investigate wartime atrocities and help rebuild the local justice system. International prosecutors employed by DOJ are primarily responsible for domestic war crimes prosecutions, which are presided over by international judges.



Most observers acknowledge that trying those suspected of atrocities is crucial if the province’s Serb and ethnic-Albanian communities – which nearly a decade on, remain deeply divided – are ever to be reconciled.



As UNMIK prepares to leave the province in autumn – following Kosovo’s declaration of independence in February this year – some activists are concerned the mission will leave behind a backlog of unsolved cases, and no robust judicial infrastructure in place.



They express concern that the European Union mission coming to support the province will repeat what they see as the mistakes of its predecessor.



TOO FEW WAR CRIMES TRIALS



One of the main criticisms levelled at DOJ is the low number of war crimes prosecutions which have taken place in the province since the conflict.



According to DOJ, there have been final judgements in war crimes prosecutions of 28 individuals. Of these, 12 were convicted of various war crimes, and 16 acquitted. They say international prosecutors in Kosovo are currently prosecuting seven separate war crimes trials involving 11 defendants, and are directing 47 war crimes investigations involving 122 known suspects.



In The Challenge to Fix a Failed UN Justice Mission, an Amnesty International, AI, report researched in 2006 to 2007 and published in February 2008, the human rights organisation launched a scathing attack on the department’s work, suggesting that botched investigations were responsible for a relatively low number of crimes being prosecuted.



“More than seven years after the International Judges and Prosecutors Programme was established, hundreds of cases of war crimes, enforced disappearances and inter-ethnic crimes remain unresolved (often with little or no investigation carried out); hundreds of cases have been closed, for want of evidence which was neither promptly nor effectively gathered,” said the report.



Meanwhile, a Human Rights Watch, HRW, report from March 2008, Kosovo Criminal Justice Scorecard, noted that there remained “several hundred pending war crimes cases” in Kosovo.



Critics point out a great disparity between the number of war crimes documented by human rights groups as having taken place during the conflict and the prosecutions subsequently initiated under UNMIK.



“If you look at the number of cases that had been prosecuted by the writing of our report, and the actual cases of war crimes that happened – there is a huge gap,” said Sebastian Saam of AI.



Others say that slow progress has been made in Kosovo compared to that of other Balkans countries in prosecuting war crimes.



“Even though many files have been opened [in Kosovo], not much is happening. In terms of active trials, it is a handful,” said Wanda Troszczynska-van Genderen of HRW.



“The number of cases processed in Kosovo is among the lowest [in the region]. In Bosnia – both in the Muslim-Croat Federation and the Bosnian Serb entity Republika Srpska – and Serbia, the ongoing case load is much more significant, with the local courts actively taking responsibility for prosecuting war crimes. This is simply not the case in Kosovo.”



By way of comparison, HRW estimates that there have been several thousand war crimes cases in Bosnia – they say exact figures are difficult to ascertain.



In his interview with IWPR, Dean did not deny that hundreds of war crimes remained unresolved in Kosovo or that hundreds of cases had been closed for want of evidence which had not been effectively gathered.



“I’m sure a lot of cases have gone unsolved,” he said. “This is true everywhere in the world.



“But I think it’s even more true in a war crimes situation where evidence gathering is often delayed by if not days, then weeks, months, years.”



However, he dismissed accusations that there was a massive backlog of prosecutions or lengthy delays for retrials.



A LACK OF TRANSPARENCY



Both HRW and AI cited a lack of transparency as a major problem in relation to domestic war crimes prosecutions in Kosovo.



In its February report, Amnesty identified this as “a particularly shocking aspect” of the system of justice established by DOJ.



The department refuses to provide complete or prompt access to all public documents, as well as documents that should be publicly available, to civil society in Kosovo and abroad, said the report. Its author likened delays in receiving requested information from UNMIK to those encountered by Joseph K in Franz Kafka’s The Trial.



“This lack of transparency has undermined outreach efforts and efforts to develop respect for the rule of law in Kosovo among both the legal community and all sectors of the general public,” concluded the report.



HRW also noted that the Kosovo criminal justice system was far from transparent.



“Obtaining accurate and up-to-date information on the investigation and prosecution of war crimes and inter-ethnic violence is a difficult task in Kosovo, especially for non-English-speaking individuals based outside Pristina,” said its March report.



Mark L Lasser, chief of the legal system monitoring section of the OSCE, which is mandated to monitor war crimes prosecutions in Kosovo, said that accessing information had previously been problematic.



“The OSCE requires access to both public and non-public information (for example, investigations) to monitor the Kosovo justice system for human rights compliance,” he said.



“In the past, at times, the OSCE has faced problems in monitoring war crimes cases due to a denial of or delayed access to information, especially at the investigation stage. It will need full access in the future to adequately monitor such cases.”



Dean told IWPR that although ongoing war crimes investigations were confidential, he was not aware of any reason or policy for the reported delays in accessing public information.



“I’m not aware of any policy that would obstruct…access to judgements and to the public record,” he said.



He acknowledged that judgements were not published anywhere, saying, “I don’t think there’s any money to publish [them].”



Dean said that he had attempted to take up with Amnesty its accusations about a lack of transparency and difficulties in gaining data, but to no avail.



“I spoke to Amnesty International, specifically about this, and they said that they would provide [me with further information] and they never did,” he said.



CASES SUBJECT TO POLITICAL INTERFERENCE



One accusation levelled at UNMIK is that international judges and prosecutors have been subject to political interference, and hampered from opening investigations against certain suspects.



In its above-mentioned report, AI said that UNMIK judges – recruited on short-term contracts subject to renewal by the mission – were not independent of the executive (the DOJ), a condition they say is “a key safeguard of judicial independence”.



The report said that “credible evidence also suggests that decisions were made within the UNMIK Department of Justice to refrain from the investigation and prosecution of high level political figures, including against Ramush Haradinaj”, the former Kosovo prime minister, in connection with allegations relating to the death of a member of the Musaj family.



In response to this specific allegation, a DOJ spokesman pointed out that in 2002, Daut Haradinaj (the brother of Ramush) was convicted of unlawful detention, which had resulted in the death of four individuals, including Sinan Musaj.



Observers have suggested that political interference has resulted in few ethnic Albanians being prosecuted.



In its 2008 report, AI noted that “17 of the 25 cases Amnesty International has been able to document involve Serb defendants”, and said one international judge spoke of pressure not to acquit “too many Serbs”.



Some observers have pointed out that the international community may have prioritised resolving the status of Kosovo over holding war crimes suspects to account.



“Beside the well-known difficulties of rebuilding a judicial system in 1999, some people would see a politicised or political pattern behind a relative lack of prosecutions of Kosovar Albanians for war crimes,” said Nicolas Guinard, an International Center for Transitional Justice, ICTJ, consultant.



“You must know that the justice system was controlled by the international political authority under [UN Security Council resolution] 1244 – which means by UNMIK – which at the same time was supporting Kosovo’s path towards independence.



“And some would argue that that is one of the reasons why prosecutions have, in general, more largely looked…far from Kosovar Albanian perpetrators of war crimes.”



A DOJ spokesperson, meanwhile, dismissed the accusation that there has been any bias against investigating or prosecuting ethnic Albanian war crimes suspects.



“[This is] not true – especially in recent years, many prosecutions have been of ethnic Albanians as most Serb and Roma, Ashkali [and] Egyptian suspects accused of such crimes have fled the jurisdiction,” said the spokesperson.



“Of the 28 defendants against whom the judgements are final, 14 are Kosovo Serbian and 14 are Kosovo Albanian.”



Dean, meanwhile, denied all knowledge of any alleged political interference in domestic war crimes trials.



“I’m not aware of that at all. I’ve been here three years and I’m not aware of anything like that,” he said.



FAILURE TO PROTECT WITNESSES



Perhaps the greatest obstacle for war crimes and other criminal prosecutions in Kosovo is witness protection.



Prosecutors at the ICTY war crimes trial of Haradinaj – who was acquitted of all charges in April this year – spoke of the difficulties encountered in securing witness testimony.



“The chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe,” said presiding judge Alphons Orie when he read out the judgement.



Observers say a climate of fear pervades the province, preventing some prosecutions from taking place and impeding progress in others.



“People are reluctant to testify in Kosovo, because they fear for their safety,” said Troszczynska-van Genderen.



“Witness protection is insufficient, and considering the previous instances of witness intimidation and even deaths in suspicious circumstances of witnesses in war crimes trials, such concerns are real and legitimate.”



“Kosovo does not have an adequate witness protection or relocation programme,” agreed Lasser.



Yet others point out that in such a small province, witness protection usually involves relocation – a costly process which needs the backing of foreign governments.



Unlike the ICTY, Kosovo has no bilateral agreements with European countries to assist in relocating witnesses.



Many countries – including Serbia and Russia – are not willing to even recognise Kosovo as a country.



According to Dean, DOJ had done as much as it can to ensure witness protection with a limited budget.



“We have relocated witnesses and their families to other countries [on a case by case basis] to protect them at extreme cost to our budget,” he said. He added that DOJ had established a witness protection taskforce which has come up with legislative proposals and introduced a safe-house system within Kosovo.



HANDING OVER TO THE EU



As UNMIK prepares to hand over to the European Union Rule of Law Mission in Kosovo, EULEX – a civilian mission sent to support the Kosovo authorities – rights groups fear that as one international body replaces the other, reported problems will continue.



Troszczynska-van Genderen feels that little will change when EULEX takes over.



“Unfortunately, it does not seem that the strategy of dealing with war crimes of EULEX is going to be very different from that of UNMIK,” she said.



She is concerned that if international judges continue to hold sole responsibility for trying serious crimes, including war crimes, their local counterparts and prosecutors will continue to be prevented from playing a more active role in the war crimes trials.



Others are optimistic that EULEX, which has been working to evaluate the work of UNMIK, will learn lessons from their experience.



“I’m personally hopeful that EULEX will adopt a more robust system, and I think really a lot of effort has been put into…changing the past UNMIK policies and adjusting judicial practices towards a very strong system to address problems linked to the past,” said Guinard.



“This is absolutely crucial and if the EU does not give this signal to deal with the legacy of war crimes from all sides, it maybe that one of the last chances to see some kind of reconciliation in Kosovo will be lost.”



While IWPR approached EULEX to find out about its plans for pursuing war crimes prosecutions in Kosovo, its spokesperson declined to comment before the mission was operational – which is expected to be at the end of autumn.



Some – including Amnesty – have expressed concerned that with no clear date set for EULEX to take over, there could be confusion as to who is responsible for what.



However, Dean said the only confusion was over when exactly EULEX would assume responsibility.



“It’s not clear [when EULEX will take over] – and that’s something they’re going to have to resolve in Brussels and New York, obviously – far away from here,” he said.



According to him, EULEX would be able to learn lessons from UNMIK’s experience, as a result of audits and other studies completed by the UN in the past 18 months.



Meanwhile, a DOJ spokesperson said that UNMIK’s legacy would include having ensured access to justice for all communities in the province.



Among other initiatives, a legal aid programme has been established; court liaison offices have been set up to assist non-Albanian communities in accessing the courts and the justice system; and most courts continue to function, with full community access, said the spokesperson.



Caroline Tosh is an IWPR editor in London.

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