That’s not easy

The Kosovo parliament yesterday mounted the two-thirds margin needed to approve constitutional amendments required to allow creation of an internationally-staffed Special Court that will meet outside the small country to consider cases that date from after the end of the Kosovo war and may include some in which the crimes actually occurred in Albania. It will likely be years before the court reaches any verdicts.

It took courage for Hashim Thaci, who is rumored to be the subject of at least some of the cases in question, to dragoon his political party into providing the votes necessary to reach the two-thirds threshold. The constitutional amendments had failed just a few weeks ago, due to defections by Kosovo Liberation Army enthusiasts. They regard the creation of the Special Court as an attack on the legitimacy of their liberation struggle and the sovereignty of the state it created.

The international community saw things differently. Kosovo’s friends in Washington and Brussels might have preferred the country’s own courts to take up the cases in question. But Kosovo is too small and too interconnected for its still nascent court system to be able and willing to try such cases, which require foolproof witness protection. In any event, it would not have been possible for the Kosovo courts to deal with those involving crimes that allegedly occurred in Albania, including murder and organ trafficking.

It is unfortunately not clear that the internationals can manage the feat either. The European Union Rule of Law mission in Kosovo (EULEX) has been bumbling at best, incompetent and even corrupt at worst. The International Criminal Tribunal for the former Yugoslavia (ICTY), which lacks jurisdiction in the cases the Special Court will hear, hasn’t been a lot better. Its trials have dragged on for years, with inconsistent and difficult to account for outcomes. Its main virtue was that it removed notorious alleged war criminals from circulation in their own countries and thereby muted their political currency and relevance.

It was supposed to do better than that. International justice was intended to hold individuals accountable, remove the presumption of guilt from ethnic groups, and provide a just foundation on which to build real reconciliation and a warm peace. Judged by those expectations, the alphabet soup of international efforts to make law the rule rather than the exception has to be judged a miserable failure. While the military potential to wreck havoc in the Balkans is today greatly reduced, ethnic tensions still prevail over moderation, mutual disdain over common interests and hatred over good  sense.

My one fear about this new court, whose creation has to be counted as a big step forward, is that it may fail like other international justice efforts to hold perpetrators accountable. Bringing people to trial for crimes allegedly committed 15 or 16 year ago is challenging. Evidence goes missing or is destroyed, witnesses become unavailable or unwilling, memories fade. The organ-trafficking allegations will be particularly difficult to prove. Perhaps the single biggest challenge in Kosovo is intimidation: I wouldn’t want to live in a country of less than 2 million people where most of the population would consider me a traitor. Testifying means a lifetime in exile in some other country’s witness protection program.

So I do hope the internationals understand the big responsibilities they have taken on with the creation of this Special Court: assembling airtight cases from aging evidence and testimony, conducting trials expeditiously and transparently, convincing not only the accused but two whole countries that the process is fair and unbiased, avoiding the besmirching of reputations without ample proof, assigning responsibility in a way that avoids harming innocent people.

That’s not easy.