Jun 25, 2010 | Publications

The conflicts in the former Yugoslavia were perhaps the first real test case of post-Cold War humanitarian intervention and state-building.   One of the more notable efforts has been the attempted international prosecution of war crimes committed during the conflict.  However a new report by the Organization for Security and Co-operation in Europe (OSCE), Kosovo’s War Crimes Trials: An Assessment Ten Years On 1999-2009, finds that despite rhetorical commitments war crimes trials have not been a priority in post-conflict Kosovo.  The OSCE report finds that war crimes trials have been plagued by delays and a lack of capacity, and concludes that there has been a systemic failure to adjudicate war crimes trials in a timely and effective manner.

From the beginning, war crimes trials in Kosovo have been largely internationally-driven.  The UN Mission in Kosovo (UNMIK), launched in 1999, had initial responsibilities for justice issues, which were transferred to the European Union Rule of Law Mission in Kosovo (EULEX) in 2008.  Initially prosecutors and judges were locals; however these roles were primarily filled by internationals in 2000 following allegations of ethnic bias. Even investigative duties have been handled by the international CIVPOL instead of the local Kosovo Police Force (KPS).  Despite this, the majority of war crimes cases have been conducted in local courts.  The International Criminal Tribunal for the Former Yugoslavia (ICTY) is reserved for very high-level cases, and has no plans to try any new cases relating to the Kosovo conflict.

War crimes trials in Kosovo have been plagued with delays.  Despite rhetoric to the contrary, the day-to-day business of the court tends to take precedence over war crimes cases, a problem exacerbated by high personnel turnover.  By 2009 only 37 war crimes cases had been tried, with 50 under active investigation and 1,009 inactive.  The CIVPOL officers responsible for investigating cases have been one source of delays.  They were rotated out frequently, with little effort made to ensure handover of tasks or training to new officers.  This resulted in investigations having to be restarted, and rendered the old investigators unable to testify at trial should they be needed.  Judges and prosecutors were also only allowed to stay in the country for a set period of time (often 1-2 years), and so delays in the judicial process sometimes required a restart of the trial if the judge or prosecutor left the country. Ultimately, the different courts dealing with war crimes trials (Local Appeal and Supreme Courts, as well as international courts) often overruled each other, or sent cases back to local courts to be retried.  Obviously, these numerous sources of delay are not mutually exclusive, and can easily compound upon on another to cause unreasonable delays.

The authors present a number of recommendations to improve efforts to try war crimes in Kosovo.  First, there needs to be better co-operation between locals and internationals.  International personnel can provide training and help counter perceptions of bias, while ensuring that there is continuity should they have to leave.  Second, there should be better protection for local lawyers and judges, as well as witness protection that can relocate witnesses outside the country.  Finally, there should be increased transparency and better public outreach from the court system.  To implement these recommendations, the creation of a special war crimes chamber is proposed.  This chamber would provide training to specialized personnel who could deal exclusively with war crimes issues.  Obviously proposing such a chamber so long after the conflict is not without its problems.  However such an institution should, at the very least, be kept in mind for the future to deal with “regular” war crimes trials.  The piecemeal system that has been in place in Kosovo, where the ICTY deals with high-level prosecutions and the remaining war crimes cases are spread across a variety of court systems has obviously been ineffective.

War crimes issues are one of the most important aspects of a post-conflict SSR process.  When handled properly they can restore confidence in the justice system (and the state more broadly) and deal with grievances, which if left unchecked could lead to further violence.  However despite the importance of war crimes trials, the case of Kosovo demonstrates that it can easily be pushed to the side by day to day issues, leading to an ever-expanding cycle of delays.