‘A Reckoning Hasn’t Happened’

PRISTINA, Kosovo — Without answers, Milorad Trifunovic fears the worst.

Tifunovic says his brother, Miroslav, a fellow Kosovar Serb, was abducted in July 1998 near Kosovo’s capital by an ethnic Albanian guerilla army and has been gone ever since. Miroslav is one of the 1,700 people still missing from the 1998-1999 war fought between Kosovo and Serbia, in which 10,000 people were killed. Since allegations first surfaced in 2008, just after Kosovo declared independence from Belgrade’s authority, that some ethnic Serbs were interned in northern Albanian prisons soon after the war and had their organs harvested and sold on the black market, Trifunovic has feared that his brother met death that way.

"All of us who have lost someone, we all have the right to fear that our relatives were subjected to that fate," he says.

Now the head of an advocacy group for Serb families of missing persons, Trifunovic hopes that he and other relatives will finally find out what happened to their loved ones.

Accusations that officials in the Kosovo Liberation Army (KLA) were responsible for post-war revenge killings and persecution have dogged Kosovo since 1999, when military leaders began transitioning into civilian government positions, and they have clouded Kosovo’s quest for international legitimacy ever since. In 2010, Swiss politician Dick Marty, working for the Council of Europe, reported that he had found evidence senior members of the KLA had committed war crimes and murders, and abused ethnic Serbs, Roma, and even ethnic Albanian political opponents in the months after the war’s official end. Some of them, he found, may also have trafficked organs.

Now the European Union is working to set up tribunal dedicated to addressing these findings and, when appropriate, bringing people to trial: On July 29, Clint Williamson, an American prosecutor leading an EU investigative team, published a report that largely squared with Marty’s findings and that said the team "will be in a position to file an indictment against certain senior officials in the Kosovo Liberation Army" — some of whom are still active, even powerful in Kosovo’s government today. The indictment would be brought in a new court, likely based in The Hague, that would open in 2015 expressly for the purpose of dealing with KLA cases. (Kosovo’s legislative assembly approved the tribunal in April, but it still needs to pass legislation harmonizing its structure and mandate with the country’s constitution.)

The prospect of the tribunal has aggravated sensitivities about yet another international body meddling in Kosovo’s affairs, reviving old resentments, and dragging claims of savagery onto the world stage. Kosovo’s Prime Minister Hashim Thaci, who was mentioned in the 2010 Marty report as "one of the most dangerous of KLA’s criminal bosses," has called the court "the biggest injustice and insult which could be done to Kosovo and its people." Many ordinary Albanians, whose population sustained the large majority of casualties in the war under the iron fist of Slobodan Milosevic’s regime, also feel aggrieved that the court would only try those associated with one side of the war.

Others, by contrast, see it as a chance to address past wrongs long left in the shadows. For Trifunovic and other Serbs, who now comprise less than ten percent of Kosovo’s population, the court is working to right an historic judicial imbalance. "There are victims on both sides, Serbs and Albanians, but… Serbs did much more to punish their citizens," says Aleksandar Jablanovic, leader of Kosovo’s main Serb political party. "Serbia has surrendered presidents, ministers, and generals to the Hague, and on the Albanian side, such a reckoning hasn’t happened." The International Criminal Tribunal for the former Yugoslavia (ICTY) has sentenced 60 Serbs to almost 1,000 years in prison, plus five life sentences, for crimes committed in the 1990s Balkans wars. Of six indicted Albanians, only one received a conviction, with a sentence of 13 years. (Kosovo did send a prime minister to The Hague: Ramush Haradinaj, who was acquitted and will likely be the country’s next prime minister.)

As for the most salacious — and infamous — allegations in question, many Kosovo Albanians hope that the tribunal would put an end to the speculation for good. "Maybe history once and for all will prove that organ trafficking has never taken place," says Nora Ahmetaj, founder of the Prishtina-based Center for Research, Documentation, and Publication, an NGO that advocates for regional reconciliation and objective interpretation of the past.

"I really think this organ trafficking thing is a bit unrealistic," echoes Yll Rugova, 29, a political activist.

Yet for Rugova and the 70 percent of Kosovo’s population that is under the age of 30, discussions about the tribunal are also prompting more critical evaluations of events that happened while they were young. Typically, history has been presented to them in a simplified victim-perpetrator narrative. "I do think that some people from the KLA did commit crimes. There probably were some people who did kill unarmed civilians, during and after the war," Rugova says. "We need to do this," he says of the court.

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An indictment in the new court would likely have a serious impact on Kosovo’s international credibility. "To a great extent these allegations damaged the image of Kosovars and the KLA, and those who really fought for an idea," says Ahmetaj. "For them, the entire idea of liberation is completely diminished." It also could be damning for Western countries that have enthusiastically supported Kosovo’s post-war leaders (even though some of those same countries are helping sponsor and pay for the court).

Yet the planned tribunal, which has a three-year budget of 300 million euros ($400 million), is just the latest in expensive international judicial solutions in post-war Kosovo — and some people are questioning whether it can avoid the pitfalls of those that came before it.

After the war ended, the U.N. Interim Administration Mission in Kosovo (UNMIK) ran the judicial system until Kosovo declared independence in 2008. Then, the European Union deployed EULEX, an ambitious, unprecedented rule of law mission, tasked with trying war crimes, organized crime, and corruption cases as well as mentoring local authorities. EULEX has handed down approximately 350 verdicts for high-profile war crimes, torture, corruption, and organized crime cases — but it is often criticized for bureaucratic inefficiency, inadequate witness protection, high human resources turnover, and failures in sentencing "big fish."

The tribunal, which would technically fall under EULEX’s mandate, would function under Kosovo law, but much of the proceedings would likely be exported to the Netherlands due to witness-protection concerns. Physical separation from Kosovo, however, may not be a surefire way to prevent witness obstruction: A former KLA commander who was to provide key testimony in a EULEX trial against another KLA leader, Fatmir Limaj — who served as a Kosovo government minister — was found hanged in 2011 in Germany. It looked like a suicide, but his family said it was not. At the time, the former commander was under EULEX witness protection.

Limaj, a prominent politician, had previously been acquitted of war crimes against Serbs and Albanians before the ICTY. The judges said in their ruling that a "context of fear, in particular with respect to witnesses living in Kosovo, was very perceptible throughout the trial."

Andrea Capussela, a long-time policymaker in Kosovo’s International Civilian Office (which oversaw the country’s governance from 2008-2012), also worries about political influences on the new court. "The 15-year track record of internationally administered justice… is not great," he says, raising concerns about potential interference from the tribunal’s sponsors. "What if they say, ‘We cannot de-stabilize Kosovo by sending [top officials] to jail?’ Then you have an international acquittal, and the worst of both worlds for someone who is interested in the democratic development of the country."

Then, there is the matter of what happens after Williamson’s planned indictment, which is intended only for a handful of top KLA members. There is a backlog of more than 800 war crimes cases in Kosovo, and a renegotiation of EULEX’s mandate in June handed authority over to local prosecutors, who have led fewer than ten war crimes prosecutions since 1999.

Despite the lack of local capacity, Ahmetaj is among many Kosovars who would prefer that the country try the crimes themselves, without international assistance, as a state-building and accountability exercise. "I see this as a short cut, an injection, an external push for the process of dealing with the past," Ahmetaj says of the new court. "Maybe the conditions are not met in Kosovo, but the more grassroots, bottom-up the process is, the better for our country."