Does Kosovo have any new assets for the lawsuit against Serbia?

The Kosovo administration reiterated at the end of last week that it does not give up its intention to sue Serbia for genocide and war crimes. Opposed on almost all key issues, Belgrade and Pristina have thus gained another, new-old topic that will further burden the dialogue and normalization of relations. For Kosovo's online interlocutors, this is becoming less of a legal and more of a political issue.

"Even the Ministry of Justice and my legal advisors, together with international experts, are preparing to accuse Serbia as a state responsible for crimes committed during the war in Kosovo, which are war crimes, crimes against humanity, and genocide," said Kosovo Prime Minister Albin Kurti at the end of last week.

He called on the prosecution to be fully engaged so that suspects for crimes, for which there are living witnesses, would be prosecuted and punished.

Responding to these claims, Serbian President Aleksandar Vucic stated just a day later, on March 31st, that Serbia is not afraid of such lawsuits, and that Kurti threatens to sue because the rapporteur for Kosovo's accession to the Council of Europe, Dora Bakoyannis, and Western powers enabled him to enter that organization, so he will use its institutions to file lawsuits against Serbia.

Vucic also said that Kurti has been waiting for some other country to file a lawsuit for alleged genocide, considering that the United Nations do not recognize Kosovo as a separate state.

"Someone else can do it on his behalf, which is not easy, but too difficult a political issue," Vucic said.

Former President of the Military Court in Belgrade, Djordje Trifunovic, has no doubt that the government of Albin Kurti will use every opportunity to accuse Serbia of genocide and war crimes regardless of the fact that such lawsuits have no legal basis.

Trifunovic emphasizes that Kosovo's intentions would significantly facilitate potential membership in the Council of Europe.

"It would certainly be easier for them to do so when they become members of the Council of Europe because they gain certain international positions. However, war crime is an individual responsibility, and there must be an executor. They announced earlier that they have 33 indictments, covering 89 individuals. I don't know if that refers to that or something else. It's hard to distinguish," Trifunovic points out.

He explains that the biggest problem in commenting on Pristina's announcements is that politicians mostly address narrowly legal issues.

"It's mostly about statements from politicians. I would like to hear someone who really deals with that topic and then discuss it. I can't comment on politicians' statements."

He assesses that the repeated claims by Kurti that special legal teams are working on lawsuits against Serbia are solely in the function of bringing closer the recognition of Kosovo by the international community.

"They need such a procedure to show that they are a state. That's the function of it. Those people from the prosecution are probably doing as much as they can and what is available to them. I don't believe it's in any other context except political," says Trifunovic.

He has no doubt that the upcoming statement by the UN General Assembly on the new resolution on Srebrenica could also serve this function.

"Of course, they will use everything they can to portray us in the worst possible light. We have not recognized them as a state, they are not recognized as a state in the UN. The right to mutual prosecution of states is only on sovereign states. And the fact that they are recognized by some countries still does not give them the status of a UN member, they are not yet in the Council of Europe. In any case, they are slowly, bit by bit, putting themselves in as favorable a position as possible," emphasizes Trifunovic.

He adds that the upcoming session of the UN General Assembly will be an ideal opportunity for the authorities in Pristina, also because, as he emphasizes, Serbia is currently in a poor international situation.

"The circle of decision-making regarding Serbia's genocide against other peoples has failed. It was not accepted. The centers of power have not reconciled with this, and they always seek a solution to revive it. Lately, things haven't been going well for us internationally. I suppose that's the purpose, to bring back something that has already passed onto the agenda. Otherwise, what wasn't accepted then doesn't have the character of a settled matter," explains Trifunovic.

He adds that the UN General Assembly session will be an ideal opportunity for the authorities in Pristina, especially since, as he points out, Serbia is currently in a poor international situation.

"The cycle of decisions on the genocide committed by Serbia against other nations has failed. It was not accepted. The power centers have not reconciled with this and they always look for a solution to renew it. Lately, things have not been going well for us, we are not doing well on the international level. I assume that is the function of it, to put something on the agenda again that has already been passed. Otherwise, the fact that it was not accepted then does not have the character of a settled matter," explains Trifunovic.

On the question of how realistic it is for Kosovo to sue Serbia not only for genocide but also for war crimes, Trifunovic says that such an intention has no legal basis.

"There is no possibility of suing for war crimes against the state of Serbia. That is in the domain of individual responsibility. There must be an actual perpetrator of a crime and his commander, either of the first or second level. It cannot be extended beyond that. When it comes to genocide, it is something different, but this is a specific crime for violations of the rules of warfare," says Trifunovic.

He adds that everything is regulated through the Hague and Geneva Conventions, and that these legal provisions also exist in Serbian jurisdiction.

"Our judiciary, and previously military law, recognized the so-called command responsibility through the so-called Rules of War. Indications have been introduced on how it is established and in what way superiors are responsible for the actions of subordinates. But there is absolutely no consideration for a trial against the state itself," Trifunovic is categorical.

Asked whether Kurti's message to prosecutors to engage maximally to prosecute those responsible for war crimes should be interpreted as an announcement of new arrests, Trifunovic says that the authorities in Pristina have used every opportunity for that so far.

"They arrest people even for much smaller events and significant matters. I don't believe in their sincerity and accuracy in those proceedings. It has been shown several times that all these proceedings are somehow constructed. The state should pay attention to this, provide assistance to all people who were mobilized, engaged, or were active military personnel. They should be granted access to archives to facilitate their defense. Otherwise, if Serbia abandons them, then there is no help for them if they are arrested," Trifunovic assesses.

He also claims that the best solution would be for such proceedings before Kosovo courts to have some kind of neutrality.

"It would be logical for these processes to take place with some form of neutrality. One warring party cannot judge the other. That's excluded. However, the Hague Tribunal has agreed that local judiciaries deal with individual cases. Both regarding opponents and their own members. Every state should prosecute war crimes regardless of who it is, whether it's a domestic or foreign citizen. It's not written anywhere that they cannot be prosecuted and that justice cannot be sought," emphasizes Trifunovic.

And the Executive Director of the Kosovo Humanitarian Law Foundation, Bekim Blakaj, agrees that the issue of war crimes, as well as genocide, has mostly been used for day-to-day political purposes.

"It seems to me that this topic has always been used for day-to-day political gain. It was always more intensively mentioned before elections. It seems to me that it is used more as a bargaining chip," emphasizes Blakaj.

He also reminds that Albin Kurti is not the first official to emphasize the story of initiating a lawsuit for genocide against Serbia, noting that Hashim Thaci and Kadri Veseli did so before him.

Responding to some Pristina analysts' remarks that Kurti's statements actually indicate that there is no evidence against Serbia, Blakaj assesses that such claims should also be taken with a political prefix.

"I disagree with those who criticize him, it is probably politically motivated criticism. No one can conclude whether there is evidence or not until such a case is formed," Blakaj specified.

Blakaj tells for Kosovo Online that the Kosovo Humanitarian Law Foundation does not have information that evidence is being collected for a lawsuit against Serbia for genocide.

"We have no knowledge that anything is being done to gather material and information, evidence for such a lawsuit, but it has been mentioned much more intensively lately by, not only Kurti but also other officials, representatives of the government," Blakaj said for Kosovo Online.

According to him, the HLF has repeatedly pointed out that all previous processes of lawsuits for genocide among the countries in the region have ended in failure.

"Such as the lawsuit of Bosnia and Herzegovina against Serbia, Croatia's lawsuit against Serbia, and Serbia's counter-lawsuit against Croatia. All three were unsuccessful. We have always said that it is much more important to gather data, to prosecute individuals responsible for committed war crimes, and if there are many such processes, then it can be concluded that there is enough evidence for genocide, then it should be done. Instead of constantly mentioning it, and we don't see anything being done about it," Blakaj emphasized.

However, Blakaj believes that joining the Council of Europe has no impact on the issue of the lawsuit against Serbia because, according to him, they are two separate processes.

Membership in the Council of Europe is very important because it guarantees citizens the realization of their civil rights. They could appeal to the European Court of Human Rights in Strasbourg if they believe their rights have been violated in Kosovo. And that is very important for all citizens," he emphasized.

Asked to comment on the claim that work is being accelerated on the lawsuit for war crimes against Serbia, Blakaj says that Kurti probably meant the lawsuit for genocide.

"I believe he meant the same thing because the lawsuit for genocide is one thing, and war crimes are another. The only address for that is the International Court of Justice, and a country can be sued there. If it's about war crimes, then criminal charges are filed against individuals who participated in war crimes, or against those who issued orders, and those are criminal courts. Those are two different things," says Blakaj.

He explains that in the case of war crimes, it's about criminal responsibility for which the state cannot be held accountable.

"Only individuals can be held accountable, and the state cannot be criminally responsible for crimes."

He adds that the International Criminal Tribunal for the former Yugoslavia used to have jurisdiction over these criminal offenses.

"Now there is a permanent International Criminal Court, but it is not competent to prosecute war crimes committed before 2000, as the Rome Statute was only signed then. So, that's not the address either. Only domestic courts and the Kosovo Specialist Chambers remain. These are the courts where war crimes committed in Kosovo can be prosecuted," emphasizes Blakaj.

Lawyer Toma Fila, who has been involved in numerous proceedings before the Hague Tribunal since 1996, has no doubt that in the recent announcements by the Kosovo Prime Minister, there is a lot of pre-election rhetoric, but also that the Kosovo Prime Minister will use the upcoming session of the UN General Assembly, where a resolution on Srebrenica will be discussed, to revive and reiterate claims that Serbia committed genocide in Kosovo.

"He will try to use that, that's for sure. 'You've established this, and then it's the same for Kosovo too.' I'm just afraid of force," Fila said to Kosovo Online.

He added that such intent is also evident from the constant repetition of accusations for events for which it has been established that Serbia or Serbs are not responsible.

"That's their intention. They keep talking about Racak, they keep talking about how the Serbs drowned those three boys, let the dogs loose on them, even though NATO determined that it wasn't like that. They still keep talking about it. They will keep talking about it," Fila noted.

Commenting on Prime Minister Kurti's recent messages that work is underway on a lawsuit for war crimes and genocide against Serbia, and that the prosecution should maximize efforts to prosecute and punish those responsible for war crimes during the war, Fila says that it partly reflects pre-election rhetoric but also the key lies in openly intimidating the Serbian community, especially those who want to return or seek their property.

He emphasizes that the "at-risk group" includes all Serbs who were over 18 years old during the armed conflicts in 1998 and 1999.

"This is intimidation of people. That all who were 18 years old during the war should leave Kosovo. That's pressure. Kurti has called on the prosecution to step up efforts?! They only sue Serbs. All Serbian victims, in Bosnia and Kosovo, seem to have supposedly committed mass suicides. Nowhere is anyone accused of that," Fila stated.

According to him, eventual membership in the Council of Europe would still not enable Kosovo to file a lawsuit against Serbia.

"A lawsuit cannot be filed because Kosovo will not enter the Council of Europe as a state but as a territory, and territories cannot file lawsuits or take action. However, what Kurti can do is for another country to sue Serbia for genocide in Kosovo. It is possible to do so, and they will most likely do it," Fila believes.

He says it's difficult to say whether the processes conducted at the Hague Tribunal could influence new indictments and trials in Kosovo.

"It's hard to say because we don't have a fair relationship between Serbia and Western allies, the Quint, which recognized Kosovo's independence and invented Kosovo's independence. That's why we can never talk about fair relations. No, they impose, just like Schmidt does in Bosnia and Herzegovina. They have power, the European community behind them, except for those four or five states that deny the existence of Kosovo, but for their own internal reasons," says Fila.

He adds that this was also evident at the UN Security Council, where twice an initiative to discuss the NATO intervention in 1999 in FR Yugoslavia was rejected.

"It's possible that they invent something else, insert it into the UN without the Security Council's decision. They can do that," Fila believes.

Asked how the sentences against former military and police generals of the Yugoslav Army and Serbian Ministry of the Interior could be used for future indictments, Fila says it's possible.

"Every verdict against a Serbian is a welcome story for Kurti. Otherwise, there's nothing, nowhere. The Croats cleared up with Gotovina. There were no war crimes committed on Croatian territory, and the fact that our people died doesn't matter. The same goes for Bosnia and Herzegovina, where 99 percent of the verdicts are against Serbs and one percent against Muslims. The same kind of attitude is for the events in Kosovo. In all cases where we presented evidence, no one was prosecuted. Even journalists didn't want to hear. They weren't interested in Serbian victims. Nobody, and that's the most terrible thing, cares about Serbian victims except Serbs," Fila believes.

He assessed that the work of the Hague Tribunal showed that international law is in the hands of the most powerful countries.

"When I started defending Serbian defendants at the Hague Tribunal in 1996, I talked to the then-president of the court, Antonio Cassese. He explained that any action outside the decision of the UN Security Council is considered aggression, while in the opposite case, it's a legitimate operation. Then the bombing of Serbia happened in 1999, without the decision of the Security Council. When I asked Cassese, he told me he had asked Carla Del Ponte, but she just waved her hand and turned her back. That's the end of international law. International law is as the US likes it," Fila concluded.

The only one who doesn't take the announcements of the Kosovar Prime Minister seriously is a senior research associate at the Institute for International Politics and Economics, Dusan Prorokovic.

Prorokovic is explicit that the new announcements of lawsuits for genocide and war crimes against Serbia show that Kosovar Prime Minister Albin Kurti still lives in the past and that, apart from lobbyists in Washington or some European commissioners on the subject, he will not have interlocutors in the international community.

"He lives in a world that is still part of the past. It's not even part of the present, let alone the future. What genocide, what nonsense. In that context, I would say - and what kind of Council of Europe, what nonsense. That's an outdated international organization that hasn't achieved its goal. Russia and Belarus have already withdrawn from this international organization, Turkey has suspended a whole series of resolutions or doesn't apply them," says Prorokovic.

All these reasons, according to Prorokovic, are why Kurti won't be able to use this organization as a "platform" for the announced lawsuits or any other initiatives.

Prorokovic also emphasizes that the issue of a possible lawsuit by Kosovo against Serbia for alleged genocide is a misplaced topic for the international community.

"It's such a misplaced topic that I don't know whose attention it will attract in the international community. We don't even need to deal with these questions anymore—what genocide is, how many people were killed, injured, what happened... I simply believe that he won't have interlocutors for that matter in a broader international community. He can discuss it with his lobbyists in Washington or with some European commissioners, but the matter ends there and fundamentally doesn't change anything," concluded Prorokovic.