A court in The Hague trying Kosovo Albanian former guerrilla fighters has begun issuing compensation orders for their victims, but getting hold of the money is proving difficult.
Serbeze Haxhiaj, November 15, 2024
Kosovo Liberation Army ex-officer Pjeter Shala at the war crimes court in The Hague, July 2024. Photo: EPA-EFE/PIROSCHKA VAN DE WOUW/POOL.
Sentenced in July to 18 years in prison for war crimes committed during the 1998-99 Kosovo war, Kosovo Albanian former guerrilla Pjeter Shala will find out at the end of November how much compensation he owes his victims. Experience so far, however, cast doubts as to whether he they will ever be paid.
Shala is expected to become the second convicted ex-guerrilla to be ordered to compensate his victims, after Salih Mustafa was instructed in April last year to pay eight victims a total of 207,000 euros for “harm inflicted” on them by the crimes Mustafa was convicted of, including arbitrary detention and torture.
The victims are still waiting, however, amid a row between Kosovo and the Hague-based Specialist Chambers set up to try former members of the Kosovo Liberation Army, whom most Kosovo Albanians consider heroes for their fight against Serbian forces in the late 1990s.
After judges at the Specialist Chambers conceded Mustafa did not have the means to pay the sum, the Chambers issued an order for the confiscation of his assets, but even then the total won’t be met. The Chambers says that ultimately Kosovo should pay, but the government has refused, saying court bodies cannot apply on behalf of victims to the state’s general fund for victims of violent crime.
The issue risks harming Kosovo’s reputation in the eyes of its Western backers, given that many of the victims in question are ethnic Serbs and Roma while the ex-guerrillas being tried in The Hague benefit from substantial legal aid from the Kosovo state.
Experts say the issue of compensation needs to be properly regulated.
“There has been no political will to address this issue and regulate it normatively,” said Ehat Miftaraj, director of the Pristina-based Kosovo Law Institute.
“Given that the Specialist Chambers have already issued judgments and that crime victims have no clear path to seek compensation, this constitutes a violation and denial of their rights.”
Procedural dispute
Salih Mustafa in court in The Hague, December 2022. EPA-EFE/Peter Dejong
Salih Mustafa’s family say the former Kosovo Liberation Army commander has “no other assets” beyond the house where they live.
But according to the law on the Kosovo Specialist Chambers, the court may require a convicted person to compensate victims, or it may order the forfeiture of property to allocate assets among the victims. Any funds obtained through such measures would be deducted from the total amount owed.
The Agency for the Administration of Sequestrated or Confiscated Assets, an executive agency within Kosovo’s justice ministry, says that any confiscated assets are to be managed by a parallel institution of the Specialist Chambers.
“Property or proceeds from the sale of real estate confiscated in Kosovo due to enforcement of a judgment by the Specialised Chambers will be transferred to the custody and control of the Special Court,” the ministry told BIRN.
The law governing the operations of the Specialist Chambers envisages payments for lawyers and visits by family members of defendants, but nothing for the victims.
If convicted war criminals like Mustafa cannot pay reparations and their assets are insufficient, the court expects the Kosovo state to do so on their behalf, but the government says there is no legal basis for the Victims’ Counsel – a lawyer representing victims who participate in proceedings before the Specialist Chambers – to apply for compensation because it would represent a conflict of interest.
The Victims’ Counsel is part of the Registrar, the highest administrative authority of the Specialist Chambers. The court argues that the Registrar – a position currently held by Irish lawyer Fidelma Donlon – is a neutral authority and so there can be no conflict of interest.
Kosovo law does envisage compensation for victims of violent crime in general, via a body called the Crime Victim Compensation Programme.
Its head, Rrustem Thaci, said that, in the case of Mustafa’s victims, “any person who considers themselves a victim of violence… can apply for compensation, and the Commission will decide on the merits of the request”.
“However, applying or having the right to apply does not guarantee approval,” Thaci, a Supreme Court judge, told BIRN.
‘Inequality of treatment’
Judge Rrustem Thaci, head of the Crime Victim Compensation Programme in Kosovo. Photo: BIRN.
The Specialist Chambers has no authority to compel Kosovo to pay, but in their 2023 Reparation Order judges “reminded Kosovo of its obligations concerning victims’ right to an effective remedy, as outlined in [Kosovo’s] constitution.”
Under Kosovo’s Law on Crime Victim Compensation, compensation applications must be submitted within three years of receiving the final judgment, provided the victim has sought but not already received full or partial compensation from the convicted person.
During a visit to Kosovo in October, the president of the Specialist Chambers, Ekaterina Triandafilova, met with representative of EU member states including the German ambassador to Pristina.
In a written response to BIRN, the German embassy highlighted that Kosovo’s Transitional Justice Strategy, as it stands, primarily addresses victims from the country’s ethnic Albanian community.
In the case of the Specialist Chambers, however, many of the victims are ethnic Serbs or Roma.
“This approach undermines the broader inclusivity that is necessary, particularly in a historical context,” the embassy said, and called for the establishment of a victims’ compensation mechanism.
The current Crime Victim Compensation Programme, which falls under the jurisdiction of the justice ministry, is not seen as sufficient; this programme offers a maximum of 10,000 euros compensation for an individual victim of violence, but in Mustafa’s case the highest amount ordered by the court for one victim was 80,000 euros.
“This need is underscored by the fact that defendants receive substantial legal aid from the state, regardless of financial need,” it embassy added.
The European Commission’s latest report on Kosovo’s progress towards EU accession, also emphasized the importance of transitional justice, stating that “it is essential for Kosovo to address this inequality of treatment”.
Angela Griep, spokeswoman for the Specialist Chambers, told BIRN the court “has not yet sought or reached any reparations agreement with a state”.