Court Ruling Prompts Debate on Genocide

AIM Pristina, October 3, 2001

Was there or was there not genocide during the war in Kosovo? As far as ethnic Albanians are concerned this genocide is an undisputed fact, but the question itself became an issue after one trial. At the beginning of the year, the District Court in Mitrovica sentenced Miroslav Vuckovic to 14 years in jail for war crimes and genocide. This was one of the rare trials of persons responsible for war crimes in Kosovo, but only several months later the sentence was described as too harsh and "incompatible" with what the defendant actually did.

A judicial body formed by the Kosovo Supreme Court chaired by French Judge Petarice de Charettet annulled the sentence, returning it to a lower court and explaining that "according to the Kosovo Supreme Court, violence used by the Milosevic regime in 1999 cannot be viewed as genocide..." This ruling angered many Kosovo Albanians who see themselves as victims of terror and genocide. Supreme Court Chairman Rexhep Hadzimusa said that the body he heads "is not authorized to make such statements." Meanwhile, international prosecutor Michael Hartman said that "the decision of the Supreme Court was misunderstood and the contents of its decision misinterpreted. I was in the capacity of international public prosecutor and I reported on this case. The report has 40 pages of legal testimony, and I recommended that the sentence be annulled," said Hartman, adding that his recommendation was addressed to the Supreme Court. This was done because deliberation of this case by the Supreme Court involved the presentation of evidence on what happened in three majority Albanian villages in April 1999.

According to the international prosecutor, this was the essence of the case the Supreme Court looked into, and it did not analyze what Milosevic and his regime did in Pristina, Mitrovica, Prizren or elsewhere, except in the three villages mentioned in the Vuckovic case. The Supreme Court delved into testimonies of what went on in the three villages in question and this is why it cannot make decisions on matters which are not substantiated. The minutes from the trial does not mention any possible acts of genocide committed elsewhere. The Supreme Court ruling, however, does not mention only the three villages in which Vuckovic was active, and the prosecutor says "they are not specifically stressed in that context. This could have happened because a Supreme Court judge knows what he has to do in accordance with the law." Stressing that according to the law a court cannot make decisions in cases where there is no evidence, he also said "there may or may not have been genocide in Mitrovica, Prizren, or Pristina, but in order for a court to determine this, evidence must be presented, which was not the case." Other international judicial representatives in Kosovo also said the Supreme Court did not hand down any such ruling and that when the court makes general statements they are always limited by the law, taking into account evidence presented to it. Although the wording used in this particular case sounds quite general, the rules the court abides specify that it must stick to the evidence presented in a particular case.

And what is the procedure that should be followed in determining whether someone is guilty of genocide? International prosecutor Hartman says that two things should be done first: the mental condition of a person charged with genocide should be determined to ascertain if he or she deliberately acted to eliminate partially or completely exterminate members of a certain group. Secondly, that person must have committed an act that would help him or her achieve that goal. Officials of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague say that charges of genocide apply only when such crimes are massive.

The ICTY, for example, has charged Gen. Krstic with the murder of 8,000 people in Srebrenica. The case was qualified as a genocide trial, and Krstic charged with intentional genocide. "You may say that it is not necessary to kill 1,000 people, but the term 'substantial' is used in many court rulings and even by the ICTY. Which is to say that what is necessary is a combination of the two above elements. We did not have that in the Vuckovic case, and he was found guilty of genocide for unknown reasons. The Supreme Court of Kosovo has looked into the case. It involves three villages, in which not one murder or death is ascribed to Mr. Vuckovic, but he was still found guilty of genocide."

The international judges and prosecutors, however, have still admitted one fact. They cannot say whether or not there was genocide in Kosovo. According to them, a court can comment only on cases that have been deliberated by it, and they say that many cases that are still being investigated by police have not been yet sent to courts. Still, on the basis of the cases deliberated so far, international prosecutor Hartman says not one case of genocide has been proven...

For Albanian political and humanitarian organizations, however, genocide denial is untenable. Although ICTY officials have not yet said anything concerning this issue, Kosovo Albanians say that "the court is already considering expanding the charges against former Yugoslav president Slobodan Milosevic to include genocide as well. Representatives of the Committee for the Protection of Human Rights and Freedoms say that this is backed "by an enormous number of victims, one million exiled people, over 200,000 destroyed homes and other buildings, systematic ethnic cleansing through murder, rape and butchering, the goal of which was the extermination of the people of Kosovo." According to the committee, the best proof is the systematic destruction of entire families, at least 180 of them being wiped out...

It appears that the clumsy wording of the court ruling has prompted a debate on whether or not genocide was committed in Kosovo, and that other "unimportant" issues such as the efficiency and competence of local courts and judges and the justness of their decisions have been completely sidelined. And most of all the question of whether Kosovo judicial institutions are capable of bringing war criminals to justice.

Arbnora Berisha

(AIM)