Other key elements are the protection of witnesses, which has long been a problem in Kosovo war crimes trials; the use of documents on the Kosovo conflict from the International Criminal Tribunal for the Former Yugoslavia; raising the number of prosecutors and other staff; the completion of an electronic database with war crimes evidence, and the classification of cases.
“We have 900 war crime cases and 2,000 others of missing people. It means this is an ocean. In such a situation we were pushed to find a way through, and this a strategy for how to deal with them,” Hajdari told BIRN.
She said that in the target will be prosecuting people responsible for some of the “heinous massacres” in Kosovo.
“We will deal with responsibility according to the chain of command, based on military ranks, number of victims, orders and executors,” she added.
But Hajdari is concerned that the strategy cannot succeed without support at senior political levels in both Kosovo and Serbia.
“Politics is a key to this very difficult enterprise that aims to open the way for the prosecution and punishing of war crimes, 20 years after war. Serbia should understand that punishing war crimes is also in its interest, because war criminals are moving around freely,” Hajdari said.
Amer Alija from the Humanitarian Law Centre Kosovo, which has spent years documenting crimes committed during the war, said that the poor relations between Belgrade and Pristina were a huge obstacle to any progress.
“Firstly, both authorities don’t extradite their citizens, and without cooperation between Kosovo and Serbia, there will be great difficulties in successfully achieving the objectives set out in this strategy,” Alija said.
He suggested however that it is possible to overcome judicial and political obstacles by reaching agreements on some crucial issues through cooperation agreements between Kosovo and Serbia on war crimes and a formal agreement with the International Criminal Tribunal for the Former Yugoslavia for full access to its archive of documents related to the Kosovo war, which is currently restricted.
Drita Hajdari on BIRN Kosovo’s ‘Life in Kosovo’ TV programme last year. Photo: Kallxo.com
Protecting witnesses from intimidation
Hajdari is the prosecutor who has filed most of the domestic indictments against Kosovo Liberation Army members so far, although all of them were acquitted.
She said that one of the toughest jobs is convincing witnesses to come forward and then to protect them if they agree to testify.
“We need to invest so much in strengthening the component of dealing with witnesses. Unfortunately, thanks to our mistakes and failures to protect witnesses the trust of people’s trust in justice is almost non-existent,” she explained.
Protecting witnesses is also a crucial task for the Hague-based Kosovo Specialist Chambers, which is expected to try former Kosovo Liberation Army members for wartime and post-war crimes.
Witness safety was one of the main issues why the Specialist Chambers were located outside the country, in The Hague, although it is part of Kosovo’s justice system. Difficulties in protecting witnesses dogged attempts by the International Criminal Tribunal for the Former Yugoslavia and by international missions in Kosovo to convict former KLA members accused of committing crimes during the 1998-99 Kosovo war.
Hajdari said that she thinks that one of the major factors deterring witnesses from testifying is Kosovo courts’ record of acquittals in war crimes cases. Prominent examples have included the acquittals of KLA guerrillas turned politicians Fatmir Limaj and Sami Lushtaku, but also the acquittals of Serbs in wartime rape trials.
“Why people should endanger themselves or destroy their life to bear witness to crimes while defendants are released?” she asked.
The new Kosovo strategy covers war crimes committed between February 29, 1999 and June 20, 1999. All incidents before and after this period will be treated as crimes against humanity.
Hajdari said she doesn’t have any idea if any of the cases whose files she has are the same as ones that are being dealt with by the Specialist Prosecutor’s Office, which is expected to indict people for trial at the Specialist Chambers in The Hague.
“They [the Specialist Prosecutor’s Office] have primacy and they can take and ask for cases any time,” Hajdari says.
Kosovo Albanians protest against the war crimes arrest of former guerrilla leader turned politician Fatmir Limaj in 2012. Photo: EPA/VALDRIN XHEMAJ.
‘Some perceive criminals as heroes’
The national strategy also includes the raising of awareness of the importance of prosecuting war crimes.
“Still, two decades on, it is so important to raise the awareness among people that crimes have happened and they should be punished. For some people, criminals can be perceived as heroes,” Hajdari said.
Prosecutions of former KLA guerrillas are highly unpopular among Kosovo Albanians and the establishment of the Specialist Chambers sparked demonstrations among war veterans and their supporters.
Parliament voted to set up the new Hague-based court under strong pressure from Kosovo’s Western backers, and even after it was agreed by MPs, some politicians made a failed attempt to revoke the law that allows it to operate.
EULEX, which handed its cases over to Kosovo prosecutors last year as the EU rule-of-law mission’s mandate was downsized, provided expert advice and comments as Kosovo’s new war crimes strategy was drafted. EULEX no longer holds any executive functions in Kosovo’s justice system but continues to monitor cases.
Asked to comment on the strategy, EULEX told BIRN that it has “long stressed the importance for the Kosovo prosecution to be allocated sufficient resources to deal with war crimes”.
“The Mission has also repeatedly remarked that meaningful progress in tackling war crimes can only be achieved through genuine regional cooperation, including between Belgrade and Pristina,” it added.
The OSCE Mission in Kosovo, which also monitors the country’s judicial system, said that it is crucial that the Kosovo Prosecutorial Council to take a proactive position on addressing war crimes, especially those cases that EULEX has turned over to the Kosovo judiciary.
“It is important that war crimes cases are effectively prosecuted so that the victims and their families receive justice. The Mission therefore supports the commitment of the authorities to increase the resources available to further engage the justice sector in this area,” the OSCE told BIRN.
As well as adequate resources, delivering justice and ending impunity for war crimes will continue to require a great deal of effort by Kosovo’s justice system.
It will also require a lot of political will, and Hajdari is not optimistic that high-level commitment exists at the moment.
“Without a real commitment from the Kosovo and Serbian authorities, we will not manage to bring criminals to justice,” she said.
“War crimes should be finally divested from ethnicity,” she added. “The victims are of paramount importance.”