Dr. Paul R. Williams: Ending Impunity in Kosovo

Closing the Accountability Gap for Crimes Committed During the Kosovo Conflict/

Dr. Paul R. Williams delivered his oral testimony at the House Committee on Foreign Affairs hearing “Kosovo’s Wartime Victims: The Quest for Justice” on April 30. His written submission contained 22 pages focusing on the international legal violations committed during the Kosovo War of 1999.

Good morning Chairman Engel, Ranking Member McCaul, and members of the Committee.  It is an honor to testify before you today.  In particular, it is an honor to be invited here by Chairman Engel given his long-standing commitment to peace and justice in Kosovo.  It is also a privilege to share this platform with the other individuals testifying before the committee.

It is clear that the Kosovo Albanian victims of the conflict in Kosovo suffer from an accountability gap.

During the course of the Yugoslav wars, armed forces associated with the Serbian regime carried out genocide, mass murder, torture, mass rape, and mass deportation as a means to achieve Serbia’s military and political objectives.  This campaign of terror and destruction was 1) designed and implemented at the highest levels of the Serbian regime; 2) required tens of thousands of individuals willing to perpetrate such crimes; and 3) left hundreds of thousands of victims in its wake.

Every victim of an atrocity is entitled to justice, and every perpetrator should be held accountable for their actions.

It is equally important, however, not to embrace the mantra of “all sides are responsible,” which can create a false sense of moral equivalence among the parties. During the Kosovo conflict, the forces associated with the Serbian regime were responsible for the vast majority upwards of 80% of atrocities. They displaced nearly 1.4 million people (90% the Kosovo population), killed over 12,000 civilians, and raped over 20,000 women.

Yet, the UN Yugoslav Tribunal indicted an almost equal number of alleged Serbian Regime perpetrators and alleged Kosovo Liberation Army perpetrators.  None of the indictments of the alleged Serbian perpetrators included charges of rape or sexual violence as a stand-alone atrocity crime.  In total, the Yugoslavia Tribunal only convicted 6 Serbian perpetrators for the atrocities of the Kosovo conflict.

The domestic hybrid mechanisms created by the UN Mission in Kosovo and subsequently by the European Union Rule of Law Mission disproportionally indicted Kosovo Albanians by a factor of ten to one, and only convicted 4 Serbian perpetrators.  Again, with no charges of rape as a stand-alone atrocity crime.

In 2015, the international community exerted substantial diplomatic pressure on the government of Kosovo to create the Kosovo Specialist Chambers, and Specialist Prosecutor’s Office. The general diplomatic characterization of the court is that it is designed to solely prosecute ethnic Albanians who served with the Kosovo Liberation Army. If this characterization is correct, then the court essentially grants de facto amnesty to perpetrators who committed atrocities on behalf of the Serbian regime, and it closes off effective justice for hundreds of thousands of victims in Kosovo including the estimated 20,000 victims of conflict-related sexual violence and rape.

No other international criminal tribunal has been ethnically-based or has denied justice to such a substantial number of victims.

The accountability gap created by the actions of the international community, including the United States, derives from the 20 years old approach of the European Union to the conflict in the former Yugoslavia – accommodation and appeasement of the Serbian regime.  This approach requires maintaining a perception of moral equivalence among all parties to the conflict.

However, false moral equivalence, the creation of ethnic based courts, the denial of access to justice for victims, and the fostering of ethnic injustice undermines the legitimacy of accountability mechanisms and their ability to promote reconciliation – which is essential to create a durable peace.

The myopic focus of the international sponsors of the Specialist Chambers is disappointing for two reasons.   First, as detailed in my written submission, the statute adopted by the Parliament of Kosovo does not actually preclude the prosecution of all individuals responsible for crimes committed in Kosovo, and thus could serve as a vehicle for justice for every atrocity victim, regardless of ethnicity.  Second, the statute provides for state of the art victim representation and witness protection, which are key to the successful prosecution of conflict-related sexual violence.  The court has the potential to be an ideal mechanism to bring about justice for the 20,000 victims of rape in Kosovo.

To accomplish the restoration of the integrity of the Specialist Chambers, the United States should work with the government of Kosovo to affirm, and if necessary clarify, that the mandate of the court covers all crimes committed in the territory of Kosovo and is not limited to prosecuting members of a specific ethnic group of alleged perpetrators.  If necessary, the United States can work with Kosovo to amend the statute to make this mandate unambiguously clear.

The United States should also work with the government of Kosovo to encourage the Specialist Prosecutor’s Office, a part of the judicial system of Kosovo, to prioritize the investigation and prosecution of rape and other conflict-related sexual violence.

Thank you for the opportunity to testify today.

Dr. Paul R. Williams is a member of the Council of Foreign Relations and has served as a Counselor on the Executive Council of the American Society of International Law. He is a Rebecca I. Grazier Professor of Law and International Relations at the American University, as well as President/ Co-Founder of Public International Law and Policy Group.