What Kosovo Doesn’t Understand About Putting Serbia on Trial for Genocide

Kosovo prime minister Albin Kurti recently announced that his government was planning to launch a genocide claim against Serbia for crimes committed during the war in Kosovo as well as the policies of “apartheid and ethnic divisions.”

“Serbia has not apologized for the crimes it committed,” Kurti said during a visit to the village of Poklek in mid-June to commemorate the series of attacks on civilians known as the Drenica massacres. “We need to sue Serbia for the murders of innocent civilians, children and pregnant women, the elderly, for using rape as a method of war. All these things are documented and will be documented.”

The United Nations Genocide Convention, the text used as a basis for all trials involving genocide, defined genocide in 1948 as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group” and includes “the killing of its members, causing serious bodily or mental harm to members of the group, deliberately imposing living conditions that seek to bring about its physical destruction in whole or in part.”

Since its application in the Nuremberg trials that prosecuted prominent members of the political, military, judicial leaders of Nazi Germany for planning and carrying out the Holocaust and other war crimes, no one in Europe was charged with genocide until the International Criminal Tribunal for the former Yugoslavia launched a series of trials involving the political and military leadership of Republika Srpska and its involvement in ethnic cleansing in Bosnia. 

The ICTY confirmed convictions for genocide and/or genocidal intent or aiding and abetting genocide for seven individuals, colloquially known as the Krstic, Karadzic, Mladic, Popovic, Beara, Nikolic, and Tolimir cases. Crucially, these cases were against individuals even though many were also charged with Joint Criminal Enterprise – or the conviction of those who showed common purpose even though they might have not directly participated, and whose support of the common purpose led to genocide or ethnic cleansing. 

It’s important to understand the Bosnian genocide cases in order to be able to predict the possible outcome of any future genocide claim against Serbia. The first thing to consider is that Bosnia’s political makeup is different from Kosovo’s. The Bosnian Serb army or Vojska Republike Srpske (VRS) presented itself as the legitimate military representatives of the ethnic Serb parastate in Bosnia (what it was before Dayton) and while it received military, technical, moral, and other support from Serbia – the ICTY has cleared Serbia of direct responsibility for the genocide in Bosnia.

But let’s back up – in 1993, Bosnia launched a claim at the International Court of Justice against the remainder of Yugoslavia (at that point reduced to Serbia and Montenegro), in which it seeks the court to rule whether the Convention for the Prevention and Punishment of Genocide was violated in Yugoslavia’s actions against Bosnia and Herzegovina. Genocide, being a crime so severe that it has international jurisdiction, could be featured in the claim filed in the ICJ. Besides mentioning the Convention in its claim, Bosnia also includes claims of other international conventions being violated by Yugoslavia (legal responsibility was later taken on by Serbia and Montenegro, and then just Serbia), including the United Nations Charter for Aggression, the Universal Declaration of Human Rights for crimes against humanity of committed by the VRS and other mass crimes and, demanded the payment of “full compensation for damages and losses.” 

Yugoslavia launched a counter-claim, questioning the jurisdiction of the court to rule on all the violations. The court had never accepted a genocide claim before, barring only one other instance in which Pakistan invoked the same basis in a lawsuit against India following the secession of Pakistan, however, the parties agreed and the lawsuit was withdrawn.  

The Court decided to throw out all the other 17 counts in Bosnia’s original lawsuit concerning the aggression of Yugoslavia against Bosnia and Herzegovina, its role in crimes against humanity other than genocide, aggression, violation of international conventions, resolution, and issues of reparations for damage to the state and citizens of Bosnia and Herzegovina. The judges determined that they will consider only whether Yugoslavia committed, was complicit in, or failed to prevent or punish genocide in Bosnia and Herzegovina. 

The International Court of Justice ruled that Serbia violated the Genocide Convention by not doing everything to prevent genocide and then not trying those who participated in it and not handing them over to the ICTY (this was before Mladic and Karadzic were extradited from Serbia).  

Serbia remains the first country in history to be convicted of not doing enough to prevent genocide. Bakir Izetbegovic, a member of the tripartite presidency at the time, requested that the decision be revised in 2017 but it was never formally appealed and the ICJ never considered it because the two other members of the presidency did not agree to it being filed in the name of Bosnia. 

The fundamental issue with Bosnia’s claim and any other genocide claim is that the threshold for a genocide conviction is extraordinarily high. Proving beyond any reasonable doubt that the partial or whole extermination of a nation was planned needs to be backed by an overwhelming amount of documents and evidence. Kosovo has one advantage over Bosnia in a possible claim – that is, the fact that the massacres in Kosovo, such as Meja, Suhareka/Suva Reka, Krusha e Vogel/Mala Kruša, Drenica, Qyshk/Ćuška, and others were committed by forces where a direct line can be drawn to the institutions of Serbia (within Yugoslavia at the time). It also has the advantage that Serbia was responsible for the well-being of these citizens – at the time of the crimes, these were all Serbian citizens. If the citizens of one ethnic group are killed, tortured, or forcefully displaced by “their own country,” then genocide is much easier to prove. 

The problem is that most of these documents if they exist, are in Belgrade. There are currently no diplomatic or other channels between Prishtina and Belgrade that would facilitate this, moreover, the international community will likely stay away from becoming involved in the dispute between the two – the fallout in Serbia would be immense. Would the international community risk angering Serbia – or to be precise, endangering President Aleksandar Vucic and his party’s hold on the country, which if nothing else has consistently delivered on the dialogue for a genocide claim? Many analysts would say no.

Genocide is a fickle claim to deal with – on one hand, because of the weight of the allegations it will never become obsolete. That means that even in 40 years after the conflict, Kosovo can launch a claim. On the other hand, witnesses and other parties that Kosovo could use in preparing its case are getting older and questions could be raised about the validity of their claims so many years later. 

If we set the legal preconditions aside, there is an important debate to be had around the political motivations behind Kurti’s announcement. As many have pointed out, several previous Kosovo administrations – including those led by Thaci and Haradinaj – have launched preparatory investigations on a possible claim. Kurti is evidently using this claim to score political points, either to give him more leverage in the dialogue or to gloss over the fact that before coming to power, he vowed not to participate in the dialogue until “Serbia asked for forgiveness for the crimes perpetrated in Kosovo.” So, it would be logical to conclude that he wanted people to forget his promise and shift focus on this genocide claim. 

One thing that many analysts in the region have also noted is the “crassness” with which Kurti began talking about it. They have concluded that he must not be aware of the seriousness a genocide claim involves if he throws the topic around at every press conference. We know very little about how far the Kosovo side has come in preparing the claim and even less about how they intend to proceed. The glaring problem that everyone keeps repeating is the fact that Kosovo is not a UN member, and as such cannot file the claim itself in front of the ICJ. Rumors have been going around about the claim possibly being filed by Albania, but the government in Tirana has also stayed mum about any possible involvement.  

Then there’s the emotional aspect. Every time Bosnia announced it would apply for an appeal or revision of the ICJ decision, a massive wave of hope would sweep the families of survivors and victims, and even the population at large. At the same time, reactions from politicians from the Republika Srpska entity like Milorad Dodik would claim it was a destabilizing move that aimed at demonizing the Serbs once again. Antagonisms between Bosniaks and Bosnian Serbs would increase, as would the rhetoric viz-a-viz Bosnia and Serbia. 

Furthermore, the timing for such an announcement could not be coincidental. As the Specialized Chambers prepare to begin their trials for the war crimes committed by the Kosovo Liberation Army, the genocide claim could serve as a counterweight in terms of arguments against Serbia – see, we’re putting our people on trial but now you have to do that too. And not just war crimes and JCE, Serbia would be put on trial for a far dire crime. In this way, Kosovo would win the moral argument – yes, our people committed war crimes, the Kosovars could say, but yours committed genocide. 

The reactions have been not as intense in Kosovo. Interestingly enough, there’s a wide consensus among the Kosovo Albanian public about genocide definitely being committed by Serbia in Kosovo, to the point that many aren’t even surprised this is happening. This is an indicator of how cut off the Kosovo Albanian public has been from debates in the region about this issue over the past – in fact, if they’re smart, the Kosovo government would hire lawyers from Bosnia who know the specifics of all the Bosnian cases to help them set up their claim. Not being familiar with the Bosnian cases would doom the claim from the start. 

For survivors and the families of those killed this could be a retraumatization, they don’t need all these years later. They will feel that this claim – and in their eyes, its evident prospect for success – will be a validation for the senseless slaughter of their family members. Imagine their disappointment if it fails.  

It will also antagonize them (in some cases further) towards the Serbs they share a country with, and the blame for the failure of the case will be put on them too. Because the main goal of a genocide conviction is moral satisfaction. Crimes against humanity – a case Kosovo could definitely win – doesn’t carry the same weight.  

Genocide convictions are at the top of the list of the most dire of convictions a country or individual could face, and for those who carry the pain of loved ones lost – the satisfaction they might be waiting for all these years later to see Serbia charged. A genocide conviction will prove that their loved ones were deliberately targeted because of their real or perceived membership in a group – proving the widely held claim among Kosovo Albanians that the Serbian government was intent on wiping them out. Because of that, it might constitute one of the most serious decisions Kosovo has ever undertaken against Serbia – one that, judging by current circumstances, will likely not be successful in completing. 

Within Kosovo Collective Op-Ed series

Opinions expresses in this oped series do not necessarily represent those of the Balkan Trust for Democracy, the German Marshall Fund of the U.S. (BTD), U.S. Agency for International Development (USAID), or the U.S. Government. 

Project is supported by the Balkan Trust for Democracy of the German Marshall Fund of the U.S. and USAID.