On December 16, the Kosovo Specialist Chambers (KSC) sentenced Salih Mustafa to 26 years in prison for war crimes allegedly committed in April 1999 in Zllash, Kosovo, when he was the commander of a unit of the Kosovo Liberation Army (KLA).

Acting Specialist Prosecutor Alex Whiting described the verdict as, ‘a victory for justice’, and the US State Department heralded it as, ‘a strong step towards helping Kosovo uphold the rule of law and ensure justice for victims’, a view echoed by the US Ambassador to Kosovo.

In reality, the KSC was not created simply to pursue justice; it was established to serve a particular political purpose. Furthermore, it is likely to do more harm than good as it will embolden Serb nationalists and anger the Kosovo Albanian community.

Mappie Veldt-Foglia, the judge in the Mustafa case, told the court, ‘It was the people of Kosovo through the parliament who chose to create and empower this institution.’ This is disingenuous; the KSC would never have been established were it not for the sustained international pressure brought to bear on the Kosovo government in 2014.

There was negligible support amongst the people of Kosovo for the court and even Prime Minister Hashim Thaci who supported its establishment described it at the time as ‘the biggest injustice and insult which could be done to Kosovo and its people’ and later stated that he only supported the court because he was ‘under great pressure from the international community’.

Thus, the KSC lacks local legitimacy; as a result its judgements are unlikely to be respected – as was seen following the Mustafa verdict – and rather than act as means by which the past can be addressed and inter-community reconciliation achieved, the court is likely to inflame sectarian sentiments precisely because it was imposed upon the people of Kosovo and is, by its very nature – in terms of both its location and composition – perceived as a ‘foreign’ entity.

Politics, not Justice

There is no doubt that some KLA members committed war crimes. Evidence to support this is not confined to the infamous ‘Marty Report’; it was affirmed by many reputable independent human rights organisations.

Indeed, those critical of the KSC – Kosovo Albanian or otherwise – invariably do not deny that crimes were committed. It is, therefore, false to present all those who criticize the KSC as willful/callous deniers of the truth.

Serbian forces were responsible for the overwhelming majority of the violence in Kosovo; while Serbs were tried at the International Criminal Tribunal for the former Yugoslavia (ICTY), most of those directly responsible for the ethnic cleansing, murders, rapes and other related war crimes have not been punished.

The Serbian court system has found some of its people guilty of war crimes in Kosovo, but just a paltry few. The Humanitarian Law Centre in Belgrade recently noted that the judicial process in Serbia was fundamentally flawed and concluded, ‘justice will be hardly attainable before Serbia’s institutions’. As such, when the KSC was established, Serbia had not sufficiently atoned for the sustained and systematic violence it inflicted upon the Albanian community in Kosovo.

It is bizarre, therefore, to focus exclusively on investigating the behavior of one party to a conflict, especially as this party reacted to – rather than instigated – violence perpetrated by the significantly more powerful forces of the state.

People are, therefore, entitled to ask why the focus was turned so suddenly on the behavior of Albanians given the primary aggressor had yet to be punished or even accept the gravity of the violence it perpetrated.

The answer is that the creation of the court was motivated by politics rather than the pursuit of justice. These crimes could have been investigated by the ICTY and certainly should have been investigated by UNMIK and EULEX.

It is simply not the case, therefore, that there was no existing judicial body that could have investigated these alleged crimes hence a new court had to be established. Creating a court was not a necessity, it was a strategic choice.

Appeasing Serbia

The impetus for choosing to establish such a curiously focused court stemmed from the broader determination to appease Serbia; naturally, Belgrade actively supported the establishment of the KSC as it would help change the framing of what happened in the 1990s from ‘state-sponsored aggression against an entire ethnic group’ to ‘both parties to a conflict were responsible for crimes’.

The international community’s willingness to accede to Serbia’s wishes was naive at best and shameful at worst.

For over a decade, in a desperate bid to woo Serbia away from Russia, powerful Western leaders and EU officials have chosen to turn a blind eye to the Serbian government’s increasing authoritarianism, its curtailing of media freedom, its overt denialism, and its persistent attempts to cause instability throughout the region.

Thus, the West has acceded to a range of Serbia’s demands, including the establishment of the KSC. 

This has of course degraded the reputation of those who champion democratic values while loudly heralding President Vucic, but more dangerously, it has emboldened the hardliners within Serbia who have viewed the policy of appeasement as a green-light to increase both their assault on democracy and bid for renewed regional hegemony.

Furthermore, the strategy has manifestly failed to achieve its primary goal; Serbia has not moved away from Russia. It has in fact rejected the EU’s sanctions against the Kremlin following the invasion of Ukraine and Russian forces are now actively involved in stoking violence along the border with Kosovo. 

Justice Denied

The victims of crimes committed by the KLA deserve justice; unfortunately, their claims have been used as the basis for the creation of a fundamentally flawed institution that is far more political than judicial.

Given the sensitivities involved in the issue of crimes committed by the KLA, much more care should have been taken to ensure that a process was established with local support, led by local actors, and which included guarantees that reciprocal measures would be taken by Serbia.

Instead, we have a fundamentally political entity masquerading as a judicial body that lacks local legitimacy, primarily designed to appease the warmongering nationalists who have ruled Serbia since 2012.

Given the current antipathy between Kosovo and Serbia, the KSC’s discredited judgements could hardly be coming a less opportune time; we should not be surprised if in 2023 they serve as a catalyst for increased antagonism between Kosovo and Serbia, and between Albanians and Serbs.

Find the Albanian translation here.