The fallacy of “stability” – impunity, human rights and the meaning of the Haradinaj ruling

Those who pretend that Kosovo is a normal functioning state or who valorise “war heroes” such as Haradinaj are not only refusing to face the grim truth, but are helping to reinforce a fundamentally unjust power structure which threatens minorities, denies justice to victims and intimidates moderate Albanians who aspire to live in a tolerant society.

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By James McDonald

If it is true that one man’s terrorist is another man’s freedom fighter, then for Ramush Haradinaj’s defence lawyer, at least, his acquittal on 29 November 2012 represented the victory of a liberation hero, proving “beyond the slightest doubt that he was a war hero and not a war criminal.” Ben Emmerson added: “Even to suggest that there was some kind of equivalence between the genocidal policies of the Milošević regime and the resistance of a people’s army seeking liberation and self-determination for the people of Kosova was a travesty from the start. It was the equivalent of putting the leaders of the French resistance in the dock at Nuremburg alongside the henchmen of Hitler’s Third Reich.” In an earlier interview Emmerson told the Independent newspaper that, although he “abhorred” violence and was a “pacifist by nature,” he had been driven to distinguish “between dishonourable violence and the use of violence as a last resort in support of an honourable cause such as leading a liberation struggle without targeting civilians.” Declaring that “legitimate violence” was sometimes “unavoidable,” Haradinaj, he declared, “fought an honourable war.”

This is not a view shared by many ICTY prosecutors or human rights organisations; at the same time, there can be few indicted war criminals who have received so many glowing references from international statesmen and whose prosecution so many have fought so hard to prevent. When Haradinaj was indicted for war crimes and crimes against humanity in March 2005 – chiefly, for allegations that he had been involved in the “cruel treatment, torture and murder” of prisoners in the KLA camp at Jablanica, including the rape of women and young girls – officials in the province and Anglo-American politicians lined up to offer plaudits. Joe Biden praised his “dignified departure” and politics of tolerance while Robin Cook who had helped lead the drive for war against Yugoslavia in 1999 as UK Foreign Minister lamented the loss of an “advocate of tolerance.” Likewise, the UN special representative to Kosovo Soren Jessen-Petersen who pointed out that the indictment had been issued at a time when Kosovo was “closer than ever to achieving its aspirations” to independence. This last fact led Ben Emmerson to allege that his indictment was a deliberate strategy on the part of the authorities in Belgrade to “stifle a functioning independence for Kosovo.” According to Florence Hartmann, Del Ponte’s former chief spokeswoman, the US State Department Chargé d’Affaires for Europe Kathleen Stevens even asked Del Ponte whether her evidence had been supplied to her by Belgrade.

In fact, UN officials put considerable pressure on The Hague to abandon the charges, repeatedly blocked attempts to indict him and, once he had been indicted, pressured the ICTY to release him on bail so he could continue his functions as prime minister. Rather than a politicised trial taking place in the absence of evidence, then, it is more likely that it was political obstructions that made the prospect of a successful conviction almost impossible. As Del Ponte herself stated with evident frustration, the trial of Haradinaj was one which “some did not want to see bought and that few supported by their co-operation at both the international and local level.” Indeed, even those prosecution lawyers most critical of Del Ponte’s decision to prosecute Haradinaj admitted that “it was a very difficult case to investigate on the ground, harder than in any other place in the former Yugoslavia.” During the course of Haradinaj’s retrial – which was ordered because witnesses in the original trial had been threatened and others had been murdered – as many as eighteen witnesses met untimely and mysterious deaths. Haradinaj’s release from custody merely increased opportunities for the intimidation of witnesses. According to prosecutors, the attempts by the UN authorities and western diplomats to prevent his prosecution created a sense of impunity around Haradinaj. “There was a general atmosphere of intimidation; they did nothing to change this atmosphere,” Jean-Daniel Ruche, a political advisor to the chief prosecutor later testified, pointing out that senior UN officials had met with Haradinaj both before his departure to The Hague and when he returned there to stand trial. “This had a chilling effect on our witnesses.”

The saga of the trial and acquittal of Haradinaj serves as a microcosm of the failure of international justice in Kosovo, the impact of placing “stability” above human rights standards and the opaque relationships between members of the Quint and the Kosovo political and criminal elite. For years, there have been rumours that US officials have sought to protect Haradinaj, Thaci and other prominent politicians from possible prosecution in the belief that they can deliver a stable rule-of-law state and also because it is thought that many of them can provide important details about the presence of Islamist terror groups in Kosovo and more widely in the region. US officials were alleged to be instrumental in ensuring that Haradinaj was not prosecuted for a fire fight in Western Kosovo in 2000. According to Frederick Pascoe and Stu McKellock, both of whom served with the UN as police investigators, Haradinaj was evacuated by US personnel operating out of Camp Bondsteel, the main US Army base in Kosovo, to a US military hospital in Germany; for good measure, they also removed evidence of the shootout from the walls. And while Serb monks in southern Kosovo credited Haradinaj with preventing mobs burning down their monasteries in the anti-Serb riots of 2004, he has also been linked to a series of crimes, including murder, abduction and drug trafficking as well as war crimes and crimes against humanity stretching back as far as 1998.

Although British officials have referred to Haradinaj admiringly as “one of the few former commanders of the KLA who can deliver,” members of their armed forces have described him as a “psychopath” who terrorised his own men as well as the local population into supporting him. Far from a simple soldier of military honour, they paint a picture of a man who “would beat his own men” in order to maintain discipline. “Someone would pass him some information and he would disappear for two hours. The end result would be several bodies in a ditch,” one of them recalled. Military reports also linked him to leading gangs which interrogated, beat, abducted and murdered Albanians accused of “collaborating” with the Yugoslav police even where that “collaboration” extended no further than letting Yugoslav police into their homes at a time when Yugoslav police were the official police force in Kosovo.

After Haradinaj and his fellow indictees’ acquittal in November Amnesty International asked: “If they are not guilty, who committed the war crimes?” In his blog, the director of the US branch of Amnesty John Dalhousie pointed out that since 1998 “an estimated 800 members of minority communities in Kosovo” had been “abducted and murdered by members of the KLA.” While few of the victims’ relatives had had the bodies of their loved ones returned to them, Dalhousie added that, to date, equally “few of those suspected of criminal responsibility for these abductions have been brought to justice in Kosovo.” Since the responsibility for the investigation of these crimes had been passed from EULEX to local prosecution offices in 2009, there had been few prosecutions. Worse, the Kosovo authorities had “demonstrated a total lack of political will to support the investigation and prosecution of such abductions” and had committed “blatant political interference” in the course of justice. When it is taken into account that Amnesty’s figures represent a conservative estimate and the real number of victims of the KLA could be much higher, Emmerson’s description of the KLA as a “people’s liberation army which does not target civilians” or Haradinaj as a “war hero” appears highly questionable, to say the least. It certainly does not suggest, as Haradinaj claimed after his acquittal, that “our struggle was just and clean.”

It is now twelve years since the Niš Express-Podujevo bus bombing which claimed the lives of eleven Kosovo Serb refugees, including a number of children, en route to visit relatives’ graves. Within hours US troops were paving over the crater destroying valuable DNA evidence; the main suspect Florim Ejupi was also able to escape from custody at US Bondsteel, fuelling rumours that he was on the CIA payroll while two other suspects, members of the Kosovo Protection Corps, were quickly released due to a lack of DNA evidence linking them to the bomb blast. For good measure, the US also failed to arrest another prime suspect Sami Lushtaku, with a former US diplomat and deputy head of the UN mission Jock Covey allegedly “instrumental” in blocking Lushtaku’s arrest on at least two occasions. The apparent reasoning Covey gave was that the arrest and possible imprisonment of the “popular” Lushtaku could destabilise the province on the eve of municipal elections and “bolster hardliners in Serbian parliamentary elections.” The Swedish prosecutor Christer Karphammar confirmed rumours of attempts by the international authorities to obstruct justice. The first western judge to sit in Kosovo, he told a newspaper that “UN and KFOR senior officials opposed or blocked prosecutions of former Kosovo Liberation Army members, including some now in the Kosovo Protection Corps.” This meant that former members of the KLA enjoyed “immunity” with investigations blocked at a “high level.” Allegedly, one of those who worked most assiduously to prevent prosecutions of leading Kosovo political players was Bernard Kouchner, governor of Kosovo, who instructed staff that all requests for arrests of high-ranking political figures in Kosovo should come through him for approval.

Whatever the benefits of “stability” claimed by offering impunity for those suspected of crimes against humanity, it is clear that, even judged on these coldly-pragmatic terms, this policy has failed badly, both in the past and now. Three years after the Podujevo bus bombing, violent anti-Serb riots stoked by inflammatory untrue news reports on Kosovo Radio Television led to the flight of 20,000 Serbs and other minorities, multiple deaths and widespread destruction of property. Despite the fact that a subsequent KFOR report showed quite clearly that it had been orchestrated from above, there were few arrests and even fewer prosecutions. On the contrary, many of those who organised the pogroms from above have been personally rewarded. Thus, when Kosovo won independence in 2008, it was not because there had been any tangible improvement in human rights or progress towards the construction of a pluralistic tolerant society – the essential minimum “standards” Kosovo was supposed to meet before it could gain independence – but because international officials feared the consequences for “stability” if it did not.

How little progress in basic human rights and governance standards has been made since then was illustrated in a recent opinion piece in Der Spiegel authored by an anonymous German police officer stationed in Kosovo. In what amounted to a scathing attack on the past fifteen years of “nation building,” he claimed that despite the various “sugar-coated reports,” the international community had “achieved almost nothing” in bringing the rule of law, respect for human rights or transparency anywhere near European standards while the political culture in the province was dominated by a clan mentality, organised crime and chronic levels of political and legal corruption. His basic argument was brought into sharp focus by a series of contemporaneous news stories. In December 2012, for example, in one of a pattern of frequent arbitrary arrests of Serbs and members of other minority communities, a number of young Serb men were arrested by the Kosovo Protection Corps after attending an Orthodox Christmas service at Gracanica on the basis that they were “Serb agent provocateurs” and a threat to internal security. They were held for a few days before being released, with at least one of them requiring hospital treatment for injuries sustained during interrogation. In early 2013, in response to the removal by the Serbian police of a monument in the Preševo Valley commemorating a violent Albanian insurgent organisation, a series of attacks across southern Kosovo, some of them led by members of the Protection Corps, resulted in the desecration of Serb cemeteries and graveyards. Predictably, Kosovo Radio Television alleged that the Serbs had destroyed their own monuments to “blacken” the name of Kosovo; meanwhile, the desecration of another Serb graveyard was blamed on a member of the Ashkalli minority.

A week or so later, two Serb children in Northern Mitrovica were seriously injured when a bomb was thrown through their parents’ apartment window. Their Serb neighbour, who had driven the children to hospital, was arrested on suspicion of committing the crime, continuing an increasing trend for the authorities to respond to negative reports of human rights violations by attempting to ascribe hate crimes against minority groups either to other members of the minority group under attack or another minority. That said, there is also increasing evidence that members of some minority groups are becoming involved in attacks on the Serb community as a means of gaining favour with local Albanian parties – itself an indication of the violent nature of the state. The fact that the latest spate of attacks took place in the period when negotiations between the Serbian government and Kosovo leaders over a final settlement and the fate of the North had just begun sent a ominous message to Serbs in the North about what being part of Thaci’s “rule of law” state might mean. The fact that after fourteen years the desecrated Orthodox cemetery in Albanian-run Southern Mitrovica still remains unrepaired sends another.

Nor is it just Serbs in the North who might be fearful since the Gorani community recently voted to join the embryonic Association of Serb Municipalities. Others are likely to follow. Ordinary Albanians also suffer both economically and socially in the current Kosovo. Growing numbers of young educated Albanians leave Kosovo each year in search of legal employment while many others are subject to the same pressures, threats and intimidation as the state’s minorities. One indication of this is the growing tensions between established Albanian communities in northern Mitrovica who have generally maintained good relations with their Serb neighbours and the rural, conservative KLA veterans and their families which the Thaci administration is attempting to settle in the northern part of the city in a none-too-subtle attempt to change its demographic balance.

On 19 April 2013, an “Agreement of Principles” was signed between the Prime Minister of Serbia Ivica Dačić and the Prime Minister of Kosovo Hashim Thaci providing for limited self rule for the Serbs of North Kosovo, the removal of the so-called parallel structures and the reintegration of North Kosovo into the Kosovo state. While Serb leaders in the North stated their intention to defy the agreement, in a recent article, Edward P. Joseph drew a parallel between the fate of the North Kosovo Serbs and the fate of Serbs in the Krajina and Eastern Slavonia. He argued that indulging the Serbs of North Kosovo in the belief that they lived in a separate state risked them enduring the same fate as the Serbs of the Krajina. The western powers should therefore “help” the Serbs “reach the appropriate conclusion” that they should “accept the reality that they are living in another country” and draw on the “positive” examples of Eastern Slavonia and especially South Kosovo where life for the Serb minority has improved and “by any objective measure their prospects are better.” If they were to “confront the bracing truth,” Joseph argues, it would provide them with “enormous opportunities” to shape their future. While it is indeed true that the analogy between the fate of the Serbs in different parts of Croatia and in Kosovo is an instructive one, it provides rather different lessons from the ones the author imagines.

According to both Amnesty International and Human Rights Watch, Croatia’s human rights record in relation to its Serb minority continues to be dismal. As well as the ongoing failure to prosecute those responsible for committing war crimes against Serbs and the use of war crimes charges as a means of putting pressure on the Serb minority, the Serb minority are still subject to a range of discriminatory policies (including the recent introduction of nationality and residency laws seemingly designed to prevent Serb refugees from returning to Croatia), violence and intimidation (especially against returnees) and hate speech on the part of both the media and politicians. That human rights abuses are still a feature of public life even after the country’s accession to the EU was made clear in a recent interview Milorad Pupovac, the leader of the Serb community in Croatia, gave. It also explains, at least in part, why many of those Serbs who are officially registered as “resident” in Croatia live permanently outside Croatia’s borders. But the argument is flawed for another reason. In the period between 1990 and 1995 many Croatian Serbs did accept that they lived in another state. These “loyal” Serbs represented by moderate anti-nationalist liberals like Pupovac pledged their allegiance to the new Croatian state while expressing justified objections to the many discriminatory features of life under the Tudjman regime. The fact remains that by 1995, as journalists Laura Silber and Allan Little have pointed out, over two thirds of these presumably “realistic” Serbs had left Croatia, unconvinced by the human rights guarantees of the Croatian state. Serbs in Croatia, by and large, did not reject Croatian rule because they were “deeply anxious about the prospects of losing their nexus to Serbia” or because they were “desperate to avoid living as a minority in a state controlled by ‘the other,’” but because they feared – with good reason – that they would be a barely-tolerated minority in Tudjman’s nationalistic state.

Clearly, in the case of Kosovo, this argument is even more applicable. Life has not measurably improved for most Serbs in southern and central Kosovo. As is well known, they did not “accept reality” willingly, but were presented with a fait accompli by international officials. Despite being assured of the benefits of integration in a state which had repeatedly made clear its affront at their very presence, many Serbs still live in abject poverty, barely existing in barricaded ghettos, threatened by violence and intimidation and prevented from living any semblance of normal life. As numerous recent examples demonstrate, Serb returnees continue to be physically attacked and sometimes murdered. It is certainly true that a small number of Serbs have done well out of Kosovo’s independence. Unfortunately, this is largely restricted to the clique of businessmen gathered in Slobodan Petrović’s Independent Liberal Party (SLS) whose designated role is to rubberstamp the decisions of their Albanian colleagues and maintain the illusion of a tolerant, multi-ethnic Kosovo. The very fact that many Serb communities in the south survive only thanks to the humanitarian relief efforts of both Serbian and foreign charities and that increasing numbers of Serbs are moving from the south to the North in search of a viable and safe existence exposes the claim of Serb prosperity and improved rights in the south for the myth it is. Thaci’s cheer leaders and spin doctors (the latter of which includes that well-known advocate of the “bracing truth” Alistair Campbell) might insist that Serbs and other minorities under direct rule from Priština live dignified decent lives; demographic and behavioural economics data suggest otherwise.

Far from avoiding reality, for those Serbs in north Kosovo resisting rule from Priština the reality of the past 15 years has been all too clear. Irrespective of Thaci’s promises of an “amnesty,” Serbs in the north are no more likely to thrive under Priština’s heel than the Serbs in the South have. Consequently, they are determined to avoid repeating the history of the Serbs in the south whose representatives were recently reduced to imploring their Albanian cabinet colleagues to condemn the desecration of Orthodox cemeteries (in fact, something they did only after the US Secretary of State ordered them to). On the contrary, it is those UN officials, policy analysts and international administrators who, for fifteen years, have made unlikely claims about the progress of Kosovo while offering impunity and active support to those responsible for the systematic pattern of human rights abuses who could be more properly accused of avoiding reality and being intent on repeating the mistakes of history. Only last week, Ban Ki Moon warned in a speech that the failure of the UN and EULEX to seriously investigate, let alone prosecute, those responsible for crimes against Serbs, Roma and other minorities would cast a shadow over Kosovo’s future. Those who pretend that Kosovo is a normal functioning state or who valorise “war heroes” such as Haradinaj are not only refusing to face the grim truth, but are helping to reinforce a fundamentally unjust power structure which threatens minorities, denies justice to victims and intimidates moderate Albanians who aspire to live in a tolerant society. While it is possible that the refusal of Serbs in the north to accept rule from Pristina could cause instability, forcing the north Kosovo Serbs to live in a state with demonstrated contempt for human rights almost certainly will. Whether subscribing to the trope of the “freedom fighter” turned democratic politician or believing that agreements in the absence of human rights standards and democratic accountability can lead to “stability,” it is actually the advocates of Kosovo’s state sovereignty who prevent the establishment of a state grounded in the rule of law and human rights, in reality, the only basis on which a Kosovo state could ever actually be either viable or “stable.”

James McDonald is a UK-based international research analyst, with a specialist interest in the Balkans.

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