Four myths about Kosovo Special Court

Misunderstandings can contribute to the decline of the Court's potential positive influence in a social way, as well as to promote destabilising effects in Kosovo and to disappoint the unrealistic expectations of those for whom they are supposed to benefit from the process.

Kosovo's Special Court, composed of two separate institutions (The Specialised Chambers and the Specialised Prosecutor's Office of Kosovo), is founded on the basis of legislation and constitutional changes adopted by the Assembly of Kosovo. The court will operate within the framework of the Kosovo justice system, but with locations in The Hague and international staff, as well as financed by the EU. Likewise, there is no direct precedent in the Western Balkans or elsewhere. The court aims to investigate cases of war crimes against individuals, mainly related to the Kosovo Liberation Army, comprised of the ethnic Albanian majority during 1998-2000.

The establishment of this court should be understood in the context of a broader context of confrontation with the past in Kosovo, where a number of national and international efforts to address war crimes did not meet expectations. While its work can provide a measure of justice to victims and a direct form of accountability to perpetrators, the influence of the Court can be greatly damaged by limited public perception of its purpose and scope. Despite considerable media coverage, the Kosovo Special Court remains highly misunderstood, both by opinion leaders and the general public.

The establishment of the court was coincided with heated debates. The government insisted that Kosovo should fulfil its obligations to international partners, until the opposition argued that the Court would be unjust to the Albanian majority, as only individuals who were members of the Kosovo Liberation Army (UÇK) will likely be punished, and therefore damaged Kosovo's international reputation. So there are a number of expectations regarding the Court and what will be achieved or not achieved. These dynamics should also be understood in a wider context of interethnic tensions and in relation to unresolved conflict. It is not surprising, therefore, that expectations about the purpose, mandate and objective of the Court are different and contrary.

These misunderstandings can contribute to the breakdown of the Court's potential positive influence in a social way, as well as to promote destabilising effects in Kosovo and to disappoint the unrealistic expectations of those for whom they are supposed to benefit from the process.

In view of that, Interra, Centre for Peace and Tolerance, PAX and Impunity Watch -- early this year -- realised a nationwide poll, as well as the focus of groups with Kosovo Albanian and Serbian citizens to better understand public opinion on the Court, and found widespread misunderstandings concerning the tribunal's purpose and mandate. These findings will be published in the next report, which aims to promote accurate perception and debate about the tribunal, ease the challenges awaiting the tribunal and, above all, enhance the court's potential for positive influence in society.

In anticipation of this report, we have highlighted four of the main myths about the Special Court, which prevailed among survey participants from both communities, offering the answers to the fundamental misunderstandings dealing with the Court.

Myth 1: Kosovo Special Court to prosecute corruption crimes, capture of state

Polls show that 35.4% of ethnic Albanians and 18.9% of ethnic Serbs believe the Special Court for Kosovo will prosecute related crimes and capture the state. There has been considerable discussion in the media on how the Court will investigate officials who have misused state assets or personally benefited from corrupt relatives.

Fact: The Kosovo Special Court is mandated to cover only crimes against humanity and war crimes committed during 1998-2000, referring to the 2011 report written by Swiss Senator Dick Marty for the Parliamentary Assembly of the Council of Europe. The crimes against humanity” mean any act like murder, extinction, captivity, deportation, imprisonment, torture, rape, sexual slavery, and deportation, when it becomes part of a mass and systematic attack directed against any civil population, being informed of the attack. “War crimes” implies grave breaches of the Geneva Convention and other laws and regulations applicable to armed conflicts, including murder, torture or inhuman treatment, destruction of property, hostage-taking, and deportation. In this form, no person will be charged with corruption, economic crimes, misuse of state assets, or other forms of capture of the state; equally importantly, no person will be charged with any crime committed after 2000.

Mitti 2: Special Court for Kosovo to determine whether KLA has been a terrorist organisation

Somewhere around a third (33.9%) of ethnic Serbs and a fifth of ethnic Albanians in Kosovo believe that the Special Court for Kosovo will judge the KLA as an organisation, while 29.6% of ethnic Serbs and 24.4% of ethnic Albanians believe the Court will judge the perpetrators as individuals and the KLA as an organisation.

Fact: The Special Court for Kosovo has a single mandate to ensure a fair process for perpetrators of individual crime, primarily former KLA members, suspected of crimes against humanity and war crimes. The same will not determine whether the KLA campaign has been fair and legitimate, as well as will not determine whether KLA fighters have been terrorists or deliverers.

Miti 3: Special Court for Kosovo to prosecute war crimes suspects from the former Yugoslavia and Serbia

Nearly half of ethnic Albanians (49.6%) and ethnic Serbs (44.6%), respectively, believe the Special Court mandate includes investigating all those who committed crimes against humanity and war crimes during 1998-2000, despite their ethnicity. Moreover, 32..8% of ethnic Albanians and 15% of ethnic Serbs believe the Court has a separate mandate to prosecute crimes against humanity and war crimes committed by Yugoslav and Serbian activists.

Fact: In theory, the Special Court is mandated to file charges for individuals of any ethnic affiliation for crimes against humanity and war crimes committed during 1998-2000. In practice, because the Court has a mandate to investigate only alleged KLA cases that were filed in the 2011 Dick Marty report, there is little chance that persons suspected of war crimes who fought under Yugoslav and Serbian forces would be charged.

Myth 4: Special Court to prosecute all crimes allegedly committed by KLA

Only 3% of ethnic Serbs who participated in the focus groups believe to be familiar with the Special Court and its mandate, however, have found that many of them have been misled once when they were introduced to relevant facts. Almost all of these residents, for example, have believed that the Court has the mandate to prosecute all crimes allegedly committed by the KLA. Most participants have cited individual crimes against the minority population that were committed after June 1999 and several serious crimes such as the Gorazdevc case in 2003, and the Stolic family case in 2003, with expectations that the Court will investigate and judge responsible persons.

Fact: In August 2015, Kosovo has adopted legislation that founded the Special Prosecutor's Office (“SPO”) to investigate and prosecute serious cross-border and international crimes that occurred during and as a result of the Kosovo conflict in 1998-2000. The Law for the establishment of the Special Court of Kosovo mandated him to investigate and judge those war crimes and crimes against humanity identified in Marty's report all other cases of crimes against the civilian population that occurred in the aftermath of the 1998-99 conflict will be dealt exclusively with by the Kosovo judiciary and EULEX.

To build the court's capacity for a positive social influence is key to having real knowledge and expectations about the tribunal's purpose and opportunities. Myths like these distort dialogue and public debate, thus becoming an obstacle to real commitment with the work of the Court and its results. Therefore, it is important for citizens to be equipped with accurate information and for similar myths to be exposed in preparation for the first acts by the Court. Therefore, Kosovo authorities, the international community and the Special Court for Kosovo must co-operate to provide an overall and comprehensive programme of public information and communication dealing with these myths, as well as other disinformations concerning the Court. If even these efforts fail, tensions are at risk both within and outside the community, and therefore there is destabilisation in Kosovo, as well as the dialogue between Kosovo and Serbia fascist by the EU.

The authors of this writing are: Michael Warren PAX, Colliqi-Integra Concert, Nenad Maksimovic CPT, Marlies Stappers IW. Research of these authors is expected to be published at the end of this month.