By Donikë Qerimi and Krenar Gashi
There’s an old joke that Sigmund Freud used in The Interpretation of Dreams: A man, accused by his neighbour of having returned a borrowed kettle damaged, makes three inconsistent arguments in his defence: first, he says he returned the kettle undamaged; then, he argues the kettle was damaged when he borrowed it; finally, he says he never borrowed a kettle from the neighbour in the first place.
This forms the “Kettle Logic” – a fallacy that occurs when one uses multiple arguments to defend a point. We are using it to illustrate the logic of the EU rule-of-law mission in Kosovo, EULEX, which, in its rhetorical fight against war crimes is producing similar inconsistent arguments to justify own shortcomings.
When EULEX was launched in 2008, the mission’s rhetoric ran along the lines of, “We can do it because we are not you,” meaning only international prosecutors and judges would be zealous enough to hunt “the big fish” standing behind atrocities committed in Kosovo. In their words, the evidence of war crimes was there, and it was only due to the inability and unwillingness of the Kosovo authorities to investigate it that EULEX was needed. In kettle logic, the kettle was unbroken when they returned it.
A few years and several billion euros later, war crimes, as well as other major crime verdicts, have been disappointing. The vast majority of the mission’s investigations have ended without indictments, while some cases that made it to court were mainly dismissed. In all these cases, the investigators, prosecutors and judges were from EULEX: impartial, independent and international. At this stage, the mission used its second argument: the kettle was broken when they borrowed it, or, “We are doing our job, but the witnesses are being intimidated as there is no witness protection programme.”
In a small society, it is difficult to run an effective witness protection programme. EULEX, however, with the backing of the EU, could run such a programme. The first and crucial witness about to testify in a war crimes case against the Kosovo Liberation Army, KLA, was placed under protection. A few months later, the witness died in Germany in unknown circumstances, under EULEX’s protection.
Witnesses who testified against Albanians were not the only ones mishandled; EULEX voluntarily published the name of a protected witness in a major war crimes case against a group of Serbian paramilitaries. That was strongly condemned by the mission’s own human rights review panel.
The idea of an international tribunal for Kosovo war crimes is the equivalent of EULEX saying, “We never borrowed a kettle,” the third argument of the kettle logic. Such an idea not only contradicts everything the mission stands for, but is also being used to externalise responsibility for the lack of results in hunting down war criminals.
This critique of EULEX’s performance does not mean we are denying that war crimes were committed in Kosovo. The number of victims does not match the number of perpetrators behind bars, from either side. We are merely pointing out EULEX’s behaviour, which is characterised by two elements: an attempt to place responsibility for the lack of results on elements beyond their reach; an insistence that it would be easy to do so if it were not for the lack of resources.
The logical question springing from this logical fallacy is whether a new criminal tribunal would actually be any more capable than EULEX.
Over the last decades, international tribunals have been successful in prosecuting war crimes, although their effectiveness in bringing justice is disputed. Such tribunals were established for Rwanda, Sierra Leone and the former Yugoslavia, ICTY, which also covered atrocities committed in Kosovo. As international bodies, established by the UN, these tribunals were the only way to prosecute war crimes in a timely, safe and independent fashion, allowing the international community to bypass any legal obstacles set by international law and state sovereignty.
In Kosovo’s case, however, none of these circumstances exist. First, the tribunals that are to be used as a model were established in times of war, when it was impossible for the international community to ensure, physically or legally, trials in those countries. However, the conflict in Kosovo ended 15 years ago. The country now has functional institutions, including those for the rule of law, and, despite efficiency challenges, one cannot argue on the basis of the risk of conflict repetition, or fragility of peace. Furthermore, war crimes within Kosovo are exclusively run and tried by EULEX, leaving local efficiency challenges out of this equation.
Second, due to the unstable security and political situation at the time of these conflicts, it was impossible for the international community to arrange for international judges and prosecutors to be embedded to adjudicate these crimes within the local frameworks. Hence, a strategy for geographically and legally bypassing sovereignty issues was brought up, by establishing international tribunals under the auspices of the UN. This setup is completely unnecessary in Kosovo. International judges and prosecutors, already embedded into the Kosovo Constitution, function completely independently of the local authorities. No physical or institutional risk has ever been claimed by any EU official in Kosovo, therefore distinguishing the case of Kosovo even further from the others.
Finally, in all other international criminal tribunals, the number of atrocities and the perpetrators was substantial, while the nature of the crimes and potential perpetrators was unknown. In the case of Kosovo, the idea is to establish a tribunal that would deal with only a few cases, deriving from a single report of the Council of Europe, CoE, drafted by Dick Marty. The report raised specific, narrow and focused allegations, limited in terms of the subject matter and atrocities that they would investigate.
EULEX has already established a Special Investigative Task Force, SITF, to deal with the Marty allegations. This Task Force enjoys independence within EULEX, and EULEX is independent from the Kosovo authorities. Thus, despite the supposed inability of Kosovo authorities to prosecute war crimes, the same authorities have agreed to step back, by allowing EULEX to bypass their channels of exchange of information and evidence, guaranteeing in this way independent and confidential investigations.
The Kosovo government even agreed to exclude the operations of SITF from the on-going negotiations on the mandate of EULEX.
We do not believe that an international tribunal would have more power, competence or security to carry on these investigations than the power already vested in SITF. Changing the nature of SITF investigations that have already begun would be a major legal hurdle for Kosovo, requiring substantial legal and constitutional changes. Furthermore, such a step back from the investigation might also prolong the reconciliation process between Kosovo and Serbia, a process entering its last phase with the EU-mediated dialogue on normalisation of relations.
To conclude, the idea of a new tribunal is both superfluous and absurd. It can be viewed only as an attempt by EULEX to endlessly externalise responsibility for war crimes prosecution.