Whose trial is it?
Changing the narrative: How to center victims and witnesses at the Tribunal?
I reported and wrote this article about 3 years ago when Hashim Thaci was first indicted and surrendered to the Hague. It was never published. With the trial beginning I thought it was a good time to resurrect.
I took this photo at the protest when Thaci became President of Kosovo in 2016.
With the first indictments issued from the Kosovo Specialist Court (KSC) attention is naturally focused on the defendants. After all the cases are named after them and with these cases the highly political nature of the defendants and the court itself is a point of some controversy.
The KSC addresses crimes that occurred from the Kosovo war beginning from 1 January 1998 to December 2000. Its jurisdiction also covers Albania, because some of the crimes were alleged to have taken place there.
The International Criminal Tribunal of the Former Yugoslavia (ICTY), did not have the jurisdiction to cover the postwar crimes or crimes that took place in Albania some of them had been reported by the OSCE, Human Rights Watch, the European Roma Rights Centre and various media outlets more than 20 years ago.
In the tense atmosphere when the Serbian army and police withdrew from Kosovo after the NATO bombing campaign, individuals — Hashim Thaci, Kadri Veseli and Rexhep Selimi -— among others are accused of murdering over 100 people in an attempt to secure power in Kosovo.
The OSCE and Human Rights Watch reports from 1999 specifically single out an orchestrated campaign of terror “to a careful targeting of victims and an underlying intention to expel.” Acts included abductions, rape, torture, beatings and extrajudicial executions. At one point the OSCE reported that there were 50 murders a week over three weeks after June 1999.
After the war
After June 1999 there was a judicial and legal gap in Kosovo. The entire Serbian-majority legal apparatus had left Kosovo. UNMIK immediately had to set up the entire judiciary and police from scratch. Very few people in the country were qualified to be judges and police needed to be trained.
I interviewed an international judge who worked in Kosovo at that time and still — over 20 years later — did not want their name in this piece. Back then this judge survived assassination attempts and lived under armed guard, according to the judge.
The judge confirms that the atmosphere at that time was exceedingly dangerous for everyone, not just minorities. Reprisal killings, rapes and attacks were not only against the Serbs and Roma, Ashkali and Egyptians but happened just as often against Albanians — if not more so. Particularly Albanians who agreed to cooperate with the courts.
One witness, at that time, had his throat cut but survived and another was found in a pond, dead, the judge said. Cases involving politically high ranking people were almost impossible to try at that time, according to the justice.
The conditions for the court staff in every way were difficult, the judge recalled. At one point a human rights monitor in a court pointed out that the defendant was shivering in an unheated courtroom, in the middle of winter, with broken windows.
“The defendant is freezing,” the monitor complained. “Well so are we,” the judge replied.
Witnesses were difficult to find, if they could be found and even then were frightened to speak,
the judge said. One witness told the judge “I don’t know” to every question including “what’s your name?”
Eight years later
But it was accusations of organ trafficking during that period by the former prosecutor of the ICTY, Carla Del Ponte in her memoir -—”Madam Prosecutor” in 2007 that finally prompted investigations into this era by European Union Special Rapporteur Dick Marty and then Clint Williamson, the first prosecutor of the Special Investigative Task Force (SITF), and Williamson’s report eventually established the court.
As the international justice noted, who has been a judge in over 40 different countries, international justice is the “second layer,” if a country cannot adequately try its own then the international community steps in.
The KSC is supported financially by the European Union and United States. All three prosecutors have been American.
The key role
Saranda Bogujevci, and her cousins were the first children to testify at a war crimes trial in Belgrade about the Podjuevo massacre that killed her mother, grandmother, cousins, aunt, two brothers and 14 other members of her family on Bajram 1999. In retrospect, she told a conference on victim’s participation in 2017 that, ”whatever the outcome of the trial, we knew that we did all we could as a family … It is really important for me and my family but it is also important for Kosovo and Serbia to have records of these testimonies.”
Witnesses and survivors are important to any judicial case. Survivors or victims are the ones in fact who the cases are actually being adjudicated for. However, it is a continual struggle for most courts to center the victim in a trial.
But the advent of a more victim centered approach in common law justice systems plus the American victim’s rights movement, has affected international humanitarian law and seen a change in the way victims and witnesses are treated.
Centering the victim means bringing the case back to the purpose of the case: Creating an accurate record and bringing some sort of restoration and closure to the victims. However, any court — particularly international humanitarian law tribunals investigating war crimes — can only do so much in that regard. For some, not even a guilty verdict restores a sense of right or what was before. Their losses go far beyond what any court can give them.
What is it like for the witnesses and survivors — often one and the same — of these events to testify in a tribunal or local war crimes case? And is Kosovo one of the most dangerous places to be witness? And what will the KSC do now to change the way witnesses are treated by the court?
‘Do I look like I’m afraid?’
For many of the previous high-profile cases in Kosovo, witness intimidation has been so extensive that many of the witnesses and survivors have left the country.
In the Haradinaj et. al. case from 2005, that charged former prime minister Ramush Haradinaj, Lahi Brahimaj and Idriz Balaj with crimes against humanity and taking part in a joint criminal enterprise, 34 out of 100 witnesses changed their identity, the most for any case tried at the ICTY.
Some refused to testify and ended up as defendants themselves. Others ended up dead in suspicious circumstances before testifying.
Carla Del Ponte, the former prosecutor of the ICTY wrote in her memoirs that, “witnesses were so afraid and intimidated that they even feared to talk about the KLA presence in some areas, not to mention actual crimes.”
“Those willing to testify had to be transferred to other countries with their entire families and many states were not willing to accept them.”
The issue of witness intimidation is a constant through war crimes trials throughout the region. But with the particular smallness and interconnectedness in Kosovo it is far more pervasive. It led to the Haradinaj et. al. case’s appeal and partial retrial in 2010.
Witness intimidation was one of the drivers to locate the KSC outside of Kosovo
In one of the most dramatic incidents from the ICTY in 2007, Shefqet Kabashi refused to testify on the stand telling the court that “he did not live in a normal country” and “people get killed for no reason.”
Kabashi, a former member of the Kosovo Liberation Army, first testified as a protected witness during the Fatmir Limaj et. al. case from 2003. Haradin Bala was the only person convicted in that case. His co-defendants Fatmir Limaj and Isak Musliu were both acquitted.
When called back to testify on Jablanica this and additional incidents during the Haradinaj et. al. trial Kabashi did not want to talk about what happened.
After his refusal to answer questions on the stand in 2007 despite the head judge, Alphons Orie, finally allowed him to leave with the warning he would be held in contempt if he refused to answer questions. He was ordered to return two days later. Kabashi did not return.
ICTY assigned him an attorney - Michael Karnvas - to look after his rights. Karnvas says that he didn't think that Kabashi personally felt threatened. Karnvas, an American lawyer, said he felt that Kabashi was more afraid for his family in Kosovo than himself. At one point, Karnvas recalls, Kabashi, looked directly at Haradinaj and made clear that while he wouldn’t testify, he wasn’t afraid of him.
Karnvas also noted that Kabashi had concerns from his first testimony in Limaj that his identity was leaked. Kabashi also had a personal grievance: A large segment of the indictment had been cut out when it went to trial for budgetary reasons or to make it more efficient. And so, he felt that there was a whole incident involved where Albanian, Kosovar Albanians, war victims, that was not addressed.”
Kabashi left a n ote in his hotel room that read, "For many reasons in this court, conditions are not fulfilled for a witness to testify properly. That's why I decided not to testify and to ask from Trial Chamber to release me from this courtroom and to give me -- and to give the right and security to go back to my family. I tell these things with full trust and conscience and stay behind this request. Thank you. If the Trial Chambers needs explanations, I can give them without hesitation."
Kabashi went to the United States and later by video link still refused to testify. Kabashi was then indicted on a charge of contempt of court for his refusal.
Four years later, Kabashi was brought back to The Hague where he was convicted and sentenced to two months in detention, having been given a month’s credit for time served while awaiting trial.
When asked if he was afraid to testify at his sentencing in 2011, Kabashi replied in English: “Do I look like I’m afraid?”
In the Haraqija et. al. case in 2008, Astrit Haraqija, the former minister of culture, youth and sport and his political adviser and part-time editor at the Bota Sot newspaper, Bajrush Morina, were charged with witness intimidation.
It was alleged that Haraqija ordered and paid — in fact the ministry did pay for Morina’s trip — to go to a third country to convince a protected witness in the Haradinaj et. al. case not to testify. Originally, Haraqija was supposed to join, according to the witness who was told to make sure to get a room of an appropriate standard for a minister because he was “choosy” but in the end only Morina arrived.
Morina told the witness that ”Schook” (U.S. General Stephen Schook the then deputy special representative of the secretary-general at UNMIK) said that if he didn’t testify along with two others that would “save Haradinaj.'' This was all recorded — with the witness’ agreement — by the police in the third country.
After Schook resigned from the UN — surrounded by accusations of improper relationships with Haradinaj and energy minister Ethem Ceku as well as with local women — he worked part-time for Haradinaj as a political adviser.
Haraqija was acquitted and Morina convicted. He served three months in detention.
There were other prominent cases as well, including that of well known journalist, Baton Haxhiu, who in 2008 published the name of a protected witness. He was fined 7,000 euros.
Already in the KSC, the first indictments handed down were about witness intimidation.
What are victims' rights?
Former U.S. ambassador for war crimes Clint Williamson, who was a prosecutor at the ICTY and worked on the Milosevic case otherwise known as the Kosovo case as well as trials in Bosnia and Croatia, said that coming from the US it was a surprise to see judges who bristled at the inclusion of survivors voices.
In the US it is commonplace to have victim’s impact statements for example, where the victim explains to the court how a crime affected their lives. However, at The Hague for judges from the British, Australian and Canadian judicial traditions this was an adjustment. For common law legal traditions like France or Germany this was far more normalized.
In the United States this has been spearheaded by the victims’ rights movement that has sought to highlight victims’ and their testimonies as a central point of a criminal trial. Carrie A. Rentschler wrote in her book “Victims’ rights and The Second Wound,” that “Victims’ rights discourse constitutes what is sayable about crime and criminal justice, by whom, and about whom. It is a language and set of practices that make victims more visible in narratives of crime.”
In the American context this also meant valorizing some victim stories — particularly ideal victims, i.e. white and middle-class over the stories of nonwhite and poorer victims.
The victims’ rights movement also benefited from feminist victim advocacy, particularly anti-rape activists who sought to give rape victims a greater voice in the face of legal institutional indifference.
Rentschler goes on to say that, “The making of victims is a structure of the politics of representation, of who can speak for whom and in what conditions.”
Giving agency to victims
The KSC will implement a victims participation program. Silke Studzinsky who is the head of the Victims and Witness Unit KSC also established the program at the International Criminal Court (ICC) where it is embedded in the court’s founding Rome statutes. Fatou Bensouda, the chief prosecutor at the ICC says, “the ICC was established as a judicial institution with the interest of victims as a bedrock.”
Studzinsky worked in Cambodia Court (ECCC) as an International Civil Party Lawyer with the ECCC from 2013 to 2015. She is a former criminal defense lawyer and legal representative for civil parties before the criminal courts in Germany.
In an interview, Studzinsky said that through the Victim’s Participation program at the KSC, “Victims participate through a Victims’ Counsel who will represent their views, concerns and interests throughout the trial.”
The survivors or victims are an equal participant along with the defense and prosecutor. The survivors or victims will apply to be part of the proceedings and if selected will be given a lawyer that will be paid for by the court. The lawyer will be solely dedicated to represent them.
“When representing a group of victims, a Victims’ Counsel may make opening and closing statements and have access to case material. Judges may also allow Victims’ Counsel to be present in hearings, make oral and written submissions, question witnesses and under certain conditions tender evidence related to the impact of alleged crimes on the victims. Victims’ Counsel will keep the victims informed of what is happening in the trial and will ask them about their opinions and concerns in relation to it. Victims’ Counsel brings the victims’ views and concerns to the attention of the Judges,” Studzinsky says.
But in any court there should be the presumption of innocence of the defendants. The prosecution must prove beyond a preponderance of doubt their guilt. In international humanitarian law the level of evidence needed is often higher than in the local judiciary. Further, in Kosovo’s war the Serbian regime had gone through Croatia and Bosnia and learned many lessons that they applied in Kosovo, including hiding remains. Because not as many journalists were on the ground in Kosovo as were in Bosnia this also makes prosecutions sometimes more difficult.
What happens to the survivors or victims if the defendants are found not guilty then? Studzinsky says that the victims did have a chance to state their case publicly throughout the trial, “However, the conviction of the defendant is required for participating victims to be able to claim reparations before the KSC or before local civil courts.” Studzinsky says.
However, some legal experts argue that victims’ participation programs muddle the waters and bring in an element of “subjectivity” to an ostensibly “objective” process. Other experts would argue that it gives agency to survivors and victims.
And Karnvas, the defense counsel, who also worked in Cambodia said the main thing about the victim’s participation was that it could also slow down the trial. Effectively being a third party, alongside the prosecution and defense meant that sometimes they were asking the same questions to the same witnesses.
‘I’m tired of hearing about it’
Not only has international humanitarian law changed so has Kosovo 20 years on.
In the summer of 2019,15 women lawyers met at the Kosovo Bar Association and volunteered to represent survivors of sexual violence at the tribunal. Eventually the KBA signed a memorandum of understanding with the Jahjaga Foundation to provide lawyers to sexual violence victims. Now 60 lawyers have volunteered, not just for the KSC, but in all Kosovo courts.
However, this is just the beginning at this point. Now that the indictments are out victims and survivors are encouraged to apply for representation. If necessary, their identities will be protected.
The cases are named after the accused but ultimately these cases are for and about the survivor and victims.
Del Ponte spoke to Le Canton 27 on November 12, an Albanian language paper in Switzerland about the Thaci indictment, “this is very good news from the point of view of justice for the victims. Because as I have always said, there will be no peace in the former Yugoslavia or Kosovo without the arrest of those implicated in war crimes. Unfortunately time has passed, there is a delay in justice and this can work in favor of the perpetrators. Indeed, the evidence may disappear … as witnesses."
But survivors and victims are still questioned and dismissed in Kosovo, no matter what side they testified against.
Saranda Bogujevci, who testified as a child in Belgrade is now a Vetevendosje MP.
Recently, the deputy prime minister, Driton Selmanaj, said about her story, “I’m tired of hearing about it.”