The truth beyond any doubt (10/04/2014)

by Samuel ┼Żbogar, Head of the EU Office in Kosovo and EU Special Representative

"May your choices reflect your hopes, not your fears".
(Nelson Mandela)

Ever since the Parliamentary Assembly of the Council of Europe adopted the report "Inhuman treatment of people and illicit trafficking in human organs in Kosovo" in January 2011, we – Kosovars and internationals – knew that this day might come; a day when investigation of the events described in the report would lead to possible court procedures.

I believe that Kosovo, as well as its friends within the international community were looking to this day, not as something to fear, but with hope that the allegations could be clarified, once and for all. These allegations should either be dismissed, or be processed through specific indictments of individuals who allegedly undertook such atrocities without the knowledge or indeed consent of the Kosovo people.

In 2011 the EU through EULEX assumed responsibility to drive the process and established a Special Investigative Task Force. It also appointed a special prosecutor who commenced an investigation into the allegations, the results of which are expected in the coming months. We don’t know what he is going to present. However, we do know that we need to be prepared for the possibility of indictments. It is therefore important to have a plan for the court that would deal with such indictments.

Kosovo claims that there is no truth behind these allegations. This might be the case. But only the appropriate judicial mechanism can establish that. This can be done by establishing a special court in a most credible manner – credible to Kosovo and the international community, but primarily credible to justice.

As the European Union and its member states have taken upon themselves a responsibility, we have to be convinced that the process is credible and can provide for an independent, impartial and fair assessment to establish the truth beyond any doubt. Ultimately, the truth is what Kosovo citizens want.

What we, the EU, together with the US, are proposing is a special court within the Kosovo court system, with international judges and prosecutors, with its seat in Kosovo and sensitive proceedings, including witness hearings, happening outside Kosovo.
I hear there is a lot of mistrust about this court as people fear it would re-write the history of the war. This court is not about prosecuting Kosovo or the Kosovo Liberation Army. Trials will not change the historical facts: discrimination of Kosovo Albanians in former Yugoslavia, their persecution and expulsion from jobs, schools and ultimately from their homes. It will not reverse the facts of the suffering of civilians during the war. The court will exist to adjudicate over allegations against specific individuals who may or may not have committed serious crimes. The interest of Kosovo must take precedence over the interests of potential criminals.

I am aware that many people in Kosovo cannot understand why this court is established for these crimes but not for others. More than ten thousand persons were killed and more than five thousand went missing, of whom 1.700 are still missing. Many war crimes have already been prosecuted, by ICTY, EULEX, as well as by Serbian courts. And yes, for many crimes perpetrators have yet to be prosecuted. But since the issues relating to the Council of Europe report are of such a complex and sensitive nature, involving multiple jurisdictions and the multi-national character of the crimes, such a case would be a challenge even for more mature judicial systems. To address such a case, Kosovo needs a special judicial mechanism, which is able to deal with this complexity.

I do not believe that there are crimes of "our people" and "their people". Investigations should not be conditioned by investigating and prosecuting "the others'" crimes. A crime is a crime and they all need to be prosecuted. By allowing the investigation of victims of "the other side", we do not in any way diminish "our" victims. On the contrary, we can build stronger hope and expectation that the destiny of all victims must be clarified, missing persons found and wounds healed.

I am aware that many fear for the image of Kosovo with such a court. I would argue, however, that clarifying these accusations will remove a dark cloud that has engulfed Kosovo. It would take away the argument that continues to feed prejudice about Kosovo.

A proposal for a special court is the fastest way for Kosovo to move beyond the Marty report. It could in the end improve the reputation of Kosovo.

We understand that this is a difficult decision for Kosovo, and for the Kosovo Assembly. It requires a lot of honesty, courage and trust in the rule of law and justice. I believe the 120 deputies in the Kosovo Assembly will reflect this hope for a better, European future.