Why is Pristina once again "brandishing" a lawsuit for genocide?

In the last few months, officials from Kosovo have repeatedly stated that they would not give up on the lawsuit for genocide against Serbia. Kosovo Online interlocutors emphasize that such a lawsuit is possible, but it is politically motivated, given the very slim chances of success considering the International Court of Justice's previous practices, especially regarding counter-genocide lawsuits between Serbia and Croatia.

Atdhe Hetemi, the Director of the Institute for Crimes Committed during the Kosovo War, stated at the end of last week that this institution would be fully operational by the end of this year, with 40 employees working in two departments.

In July 2023, at the initiative of the Government, the Kosovo Assembly adopted the Law on the Institute for Crimes Committed during the Kosovo War. According to this law, the Institute has the authority and responsibility to investigate and document "crimes committed during the war, providing information on human losses, physical and psycho-spiritual damage, economic and material damage, environmental damage, cultural assets, and other forms of damage caused by crimes committed during the war".

Professor Arsim Bajrami assessed that the work of this Institute could serve as preparation for a lawsuit for genocide against Serbia.

"This institute can be a good opportunity to gather the best domestic and international experts who will investigate and document war crimes, and initiate the preparation of evidence and legal arguments that are crucial elements for preparing a lawsuit for genocide against Serbia. This is not a party or government issue but a state duty that has not been fulfilled. I would like Kosovo never to give up the right to file a lawsuit and to do so professionally for the case to be won," he said.

On November 8, Justice Minister Albulena Haxhiu announced that the lawsuit for genocide was a part of the government's program.

"Regarding the lawsuit for genocide, it is in the government's program. Kurti, Osmani, and Konjufca are engaged in this process. Due to the sensitivity of this issue, we cannot provide more details, but I assure you that we are addressing this matter," Haxhiu said.

Lawyer Djordje Trifunovic, former President of the Military Court in Belgrade, has no doubt that the Institute for War Crimes has been established and will function to prepare a lawsuit for genocide against Serbia.

He adds that such "brandishing of the lawsuit" serves as additional pressure on Serbia and the Serbs in Kosovo.

"The announced formation of the Institute for War Crimes in Kosovo is evidently aimed at preparing a lawsuit for genocide against Serbia. The criminal act of genocide, crimes against humanity, war crimes against civilian populations, the wounded, sick, and prisoners are part of international criminal law. It is based on adopted conventions that states ratified long ago. I don't know if Kosovo has done that," Trifunovic says.

Trifunovic believes that by reviving the lawsuit for genocide against Serbia, Kosovo simultaneously wants to present itself as part of the international community.

"They want to present themselves as part of the international community that recognizes international criminal law and to gain points for their statehood. But, at the same time, it is a constant form of pressure on Serbia and its people. Every now and then, they arrest someone and put them in custody for alleged war crimes, which happened 20 years ago, but it becomes relevant to talk about it. This has an effect and creates privileges and tolerance in parts of the international community," Trifunovic says for Kosovo Online.

Trifunovic says it's possible that during police and military actions in Kosovo in 1998 and 1999, individual excesses or crimes were committed, meaning that international conventions were not always followed.

"But such excesses do not lead to genocide. This needs to be discussed, data needs to be collected. Now, how they will do that, whether they have the conditions or not, is a question. In any case, an armed rebellion erupted in Kosovo, and our policy at the time classified it as terrorism, which I thought was wrong. Preventing armed rebellion gives authorities full capacity, but in police actions against terrorism, it's not the same. For there to be a possibility for Serbia to be exempt from obligations to abstain, it needs to declare partial war status in Kosovo and then fully apply the army. That was my stance, but why it wasn't like that is a complicated story," Trifunovic explains.

He points out that there is a series of international decisions and conventions that clearly define the issue of genocide, and that Kosovo decided to use it as a form of pressure against Serbia, although, as he claims, the question can be raised whether it was the Albanians who committed the crime of genocide against the Serbs.

"Genocide is proved by the existence of orders, political decisions, and perpetrators. If someone is systematically relocated, if someone's water and electricity are destroyed, if someone is forced to move - then that's genocide, and I don't know if such a thing existed. The question is how the Serbian side fared there, whether that's genocide? Is genocide the forced dispersal of the Serbs, poisoning of food and livestock, cutting down orchards and forests, and children going to school with escorts... Is that a genocide?" Trifunovic says.

He assesses that investigating war crimes must not be disputed, hence the establishment of the Institute for War Crimes in Pristina, but that the problem lies in the legal formulation of such criminal acts.

"War crimes can only be committed during war, but genocide and crimes against humanity do not require war because they involve the systematic, planned destruction of a national, religious, or ethnic group, and there doesn't need to be a war for that. Here, the condition for a crime is that there is a war, with the state declaring it, and as far as I know, they declared themselves a state, and some recognized them, but we haven't. Hence, the relationship with that institute is very specific and difficult, as is the entire issue with Kosovo," Trifunovic concludes.

The Ministry of Justice has once before established a similar institution to the Institute for War Crimes.

This occurred in 2011 when the Research Institute for War Crimes was formed with the aim of documenting Serbian crimes committed during the war.

However, the Institute was closed in 2018.

The intention of Kosovo to sue Serbia for genocide has been emphasized by previous Prime Ministers before Kurti.

The latest to do so was Ramush Haradinaj in May 2021, while he was still at the helm of the Kosovo Government.

He stated that such a lawsuit had already been prepared, and "the most expert people from around the world" had worked on it.

Tom Gashi, a lawyer from Pristina, claims that such a lawsuit is already being extensively prepared and should be submitted to the International Court of Justice in The Hague in the near future.

"Work is already underway to gather evidence. A working group has been formed in the Prime Minister's Office to collect evidence, and a lawsuit for genocide against Serbia will be filed in the foreseeable future," Gashi says.

He states that genocide was committed against Albanians during the conflicts in 1998 and 1999 in Kosovo.

Gashi mentioned that the working group had been established several years ago with the objective of following all procedures and gathering sufficient evidence to secure a verdict for genocide against Serbia in court.

Addressing claims from Serbian legal experts that Kosovo lacks the capability to file such a lawsuit because it is not a member of the United Nations, Gashi stated that another country, specifically Albania, could file the lawsuit on Kosovo's behalf.

"Some believe that Kosovo, as a new state, lacks the right to file a genocide lawsuit because it is not a member of the United Nations, but if it is permitted, Albania can assist us and file the lawsuit on our behalf. If there is political will, which I believe is lacking between Kosovo and Albania," Gashi clarified.

From a legal perspective, as he mentioned, Kosovo could file the lawsuit itself once it is admitted to the Council of Europe.

"Kosovo has applied for membership in the Council of Europe, and when it is accepted as a state, there are no legal obstacles preventing us from filing such a lawsuit," Gashi believes.

According to him, the lawsuit for genocide against Serbia will be submitted to the International Court in The Hague.

"That is the same court that, in 2010, after Serbia filed a request to determine whether Kosovo had the right to declare independence because it was under the United Nations and UNMIK in 2008, ruled or issued a verdict that Kosovo did not violate international law and had the right to declare independence," Gashi stated.

Recently, academic Arsim Bajrami, appearing on RTK, suggested that the Institute for War Crimes established in Pristina could engage in a genocide lawsuit against Serbia, and Gashi agreed with it.

"That Institute has a role; they gather evidence for war crimes and genocide that Serbia committed in Kosovo against Albanian nationals, against us, during the war, which is essentially considered the period from 1998 to 1999," Gashi said.

Member of Serbia's legal team in the dispute at the International Court of Justice with Croatia over genocide, lawyer Novak Lukic, assesses that the new announcement of Kosovo's preparation of a lawsuit for genocide against Serbia is politically motivated and lacks legal foundation. He believes it is highly likely that Pristina would lose such a case.

"Such thinking and ideas are solely political, with political tendencies and intentions. Legally, if a lawsuit is filed, it would be practically impossible to prove. Many legal schemers, so-called experts, like to suggest that certain states file lawsuits and engage in massive, costly, and cumbersome disputes. It's highly unlikely that anything will come of this dispute," Lukic stated to Kosovo Online.

Regarding the possibility of the newly formed Institute for War Crimes in Pristina collecting evidence against Serbia in Kosovo's genocide lawsuit, announced last November by President Vjosa Osmani and Prime Minister Albin Kurti, Lukic says that investigating war crimes is a legitimate right, but politicians have begun to misuse the issue of genocide.

"Genocide has become much more of a political than a legal issue. Politicians like to use the term genocide, but genocide is a criminal offense. Individuals are responsible for genocide, and criminal responsibility is established for genocide. However, politicians everywhere, in the region, including here, and now in lawsuits before the International Court of Justice, like to use genocide for political purposes, they like to use terms like 'genocidal people,' and 'genocidal policy.' These terms are not legal; they have nothing to do with the criminal offense that needs to be established to speak of state responsibility," Lukic says.

He assesses that the authorities in Pristina are using the genocide lawsuit against Serbia solely for political interests.

"They have a serious problem with their public regarding the proceedings before the Specialist Chambers in The Hague against significant political figures, and I assume that this terminology and ideas arise primarily due to internal political matters," Lukic believes.

When asked hypothetically how such a process would unfold, Lukic says that the International Court of Justice would be responsible for it, and since Kosovo is not recognized by the UN, one of the EU member states could represent its interests.

"However, the International Court of Justice does not establish criminal responsibility. To establish that a convention on genocide has been violated, which is their jurisdiction, they would have to engage in establishing criminal responsibility, and I think that's a mission impossible for anyone who enters such ideas without clear guidelines on criminal responsibility for genocide," Lukic says.

He emphasizes that Kosovo's complicating factor is that the Hague Tribunal Prosecutor's Office did not have any cases involving genocide.

"Especially since a serious analysis of crimes related to Kosovo was conducted before the Hague Tribunal. If the Hague Prosecutor's Office had arguments for genocide at the time, they would certainly have filed such a lawsuit because they liked to sue for genocide regardless of whether it would later be established in court. I don't believe that now there could be evidence significant enough to initiate a genocide lawsuit," Lukic believes.

Asked if such a lawsuit would have any similarities to Serbia's and Croatia's counterclaims, where he served as Serbia's legal expert, Lukic says that that judgment is the best indicator of the International Court of Justice's thinking.

"Neither country could provide evidence to support the genocide thesis against the opposing side's crimes, none reached the level of the seriousness of genocide crimes. The International Court of Justice is reluctant to engage in determining that. Hence, their only judgment where they relatively 'floated' was between Bosnia and Herzegovina and Serbia because genocide was established against an individual at the Hague Tribunal. Then the International Court of Justice exclusively relied on the decisions of that court. In the case of Serbia and Croatia, or in the event of a lawsuit for crimes in Kosovo, there is not a single element that could help prove that genocide existed," Lukic assesses.

He states that Serbia could also file a counter-lawsuit against Kosovo for genocide, but he emphasizes that it is a political question, and in his estimation, the outcome would be similar to the counter-lawsuit.

"It's a political decision whether to engage in such a dispute for crimes committed by Albanians or the KLA against the Serbian population, but to reach the level of criminal offenses that would prove the severity of those crimes as genocide would indeed require incredibly large, significant, and strong evidence. It's not easy. Serbia had a very good argument regarding 'Operation Storm,' not only regarding the seriousness of those crimes but also because of Franjo Tudjman's words... But, despite that, those crimes from 'Operation Storm' didn't reach such a level that they could be said to be genocide because they were not the subject of the criminal offense of genocide before the Tribunal," Lukic concludes.