EULEX’s open letter on war crimes

This article originally appeared on Kosovo 2.0. Available here in English, Albanian, and Serbian. 

In a letter published today on EULEX’s website and in Koha Ditore, EULEX Head of Mission Bernd Borchardt wrote that the EU rule of law mission’s recent cases against former KLA soldiers are justified and necessary. KLA veterans and their supporters have been protesting the arrests of prominent former KLA leaders on suspicion of war crimes, arguing that the accused are innocent and that war crimes committed by Serbs are not prosecuted as rigorously.

The recent target of EULEX war crimes investigations has included Fatmir Limaj, a former KLA commander who also served as the Minister of Transportation. Limaj was accused of committing war crimes against civilians and prisoners of wars in the village of Klecka. The mayor of Skenderaj, Sami Lushtaku, was also arrested on suspicion inhumane treatment of civilians and prisoners detained at a KLA point in Likovc.

Limaj and Lushtaku, both powerful post-war politicians, are also accused of a variety of unpleasant things such as intimidation and corruption. The irony of the situation is twofold: we expect Serbian war crime criminals to be brought to justice, but we are unwilling to consider the thought that former KLA members could have committed similar crimes – and as much as Kosovars complain about politicians who use their wartime heroism as an excuse to grab power, we rise up to protect those same people when they are prosecuted.

That said, Borchardt’s letter, which I assume was intended for a Kosovar audience, misses the mark on several levels.

Legal jurisdictions

“The majority of war crimes suspects for crimes committed against Kosovar Albanians during the war are Kosovo Serb, or Serbian nationals. But they are no longer in Kosovo. The judiciary of Kosovo (including EULEX) can conduct investigations against alleged perpetrators, but has only jurisdiction in Kosovo. We all follow Kosovo Law, and Kosovo Law says that nobody can be tried in absentia. If alleged perpetrators are outside the country, there is little we can do other than share what information we have with prosecution services in other jurisdictions. And we do it.”

But what is EULEX precisely doing to “share what information we have with prosecution services in other jurisdictions?” Can’t some sort of extradition measures be put in place to ensure that people who committed crimes in Kosovo will be prosecuted? Kosovars will not be supportive of EULEX prosecutions of KLA commanders unless they feel that the same effort is channeled in catching Serbian war criminals as well. And not just the big names like Milosevic, but also members of the Serbian paramilitary, police, and other forces who wreaked havoc on ordinary Kosovars.

The EULEX caseload

“EULEX inherited 1200 war crimes cases from UNMIK. We have closed or dismissed (due to lack of evidence) 500 of these. There are 300 cases pending with Kosovo and EULEX prosecutors within SPRK. There are 300 cases pending with The War Crimes Investigative Unit of KP and EULEX. We have reviewed more than 800,000 pages related to these cases. We also initiated 51 new war crimes cases, including the first-ever investigations into cases where acts of sexual violence or rape have been assessed as war crimes. Kosovo and EULEX prosecutors are currently investigating 100 war-crimes cases and there are 5 on-going war-crimes trials. In total, and under the Kosovo legal framework, we have adjudicated 15 war crimes cases. Just under half of these (7) involved defendants of Serb ethnicity and just over half of these (8) involved defendants of Albanian ethnicity. We have an additional 13 arrest warrants against Serbian defendants, but they are outside the Kosovo legal jurisdiction.”

So, EULEX started out with 1200 cases, 500 were dismissed, 600 are pending, and 15 were adjudicated? I’m not a legal expert, but for an international mission with some of the top legal experts from around the world, isn’t that pace a bit…slow?

Witness Protection

“…witness testimony is also incredibly fragile. By their very nature, witnesses have seen traumatic events. This makes them especially vulnerable to intimidation, either directly through private contacts, or indirectly, through public statements, in particular from those actors who should know better.”

If EULEX is aware that witness testimony is fragile and key witnesses are often prone to intimidation, can nothing be done to ensure that more people feel safe to come forward? If witness testimony is the main source of evidence in war crime investigations, shouldn’t their protection be a top priority? Wouldn’t that mean that less people would change their testimony halfway through trials?

In conclusion, we’re doing our best, trust us, and give up your commanders. That simply won’t cut it for most Kosovars.

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