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Politics

Transitional Justice Process in Kosovo

By: Nora Ahmetaj

Usually after a country emerges from a war or a conflict, it goes through a social, political, economic, developmental and psychological transformation. Communities that are part of a post-conflict society are divided into the righteous and non-righteous (just and unjust), victims and criminals, good guys and bad guys, and necessarily the transformation of such societies from a post conflict society into a democratic one is followed with numerous systemic challenges. In most cases, the bases of such social relations are completely destroyed, and the people’s trust on each other is vanished.

Future past sign post

How it is possible that people who are traumatized by severe wars and serious violations of human rights regains trust on other co-citizens and on state institutions?

How can this society achieve a feeling of security and economic stability and how can it build a system of common values, when in its political structures are people who have been involved in war crimes?

How can people forget and overcome the violent past with a lot of suffering and build a common and peaceful future?

Peaceful transformation of post-conflict societies is undoubtedly a long and complex process, which in the end should include all layers and structures of a society.

Peaceful transformation of societies includes:

Restoring justice and the rule of law, particularly for the victims of violence

Searching of facts for the truth and

Developing new social relationships

This means that peace in such a society cannot be reached within a day or within a year, not even within a decade or longer; it all depends on the conditions for development and education of people, external and internal factors, political and economic stability, etc.

This fluid process of transformation of the society and institutions from an underdeveloped level to a democratic society is considered as a process of transitional justice.

Transitional justice is not a static process dealing exclusively with the rule of law and the work of security institutions and courts. Social justice is achieved through retribution justice (punishment) and restoration justice (repairing/restoring), or through the restitution of peaceful relations between the conflicting parties.

What is the difference between these two concepts? In theoretical aspect there is a clash between the retributive or punishing concept and restorative or repairing concept. Lawyers argue that a victim finds peace only when the perpetrator takes the deserved punishment, i.e. when he/she is convicted for the crime he/she has committed.

But from the emotional and psycho-social point of view, the victim does not find peace at the moment the criminal is convicted. The victim or survivor finds peace only when his/her suffering, sacrifice and pain are publicly accepted and recognized, when the victim’s dignity gets restored either through a compensation by the abuser (right of reparation), or through an apology, which is known as symbolic reparation/compensation.

The punishment / retributive justice is thought to strengthen the rules of the international law and to deny those who have violated those rules any unjust advantage.

Whereas, the restorative justice repairs or reestablishes relations between divided communities that have been in conflict.

Restorative justice emphasizes repairing the harm caused by criminal behavior. When victims, criminals and members of the society meet to find solutions, results may be transforming.

In order to analyze easier this rather problematic concept which is often debated in the academic circles and among human rights scholars and practitioners, the notion ‘Dealing with the Past’ seems to be more comprehensible and understandable by all segments of the society. Therefore, now we refer to this transitional process as dealing with the past or facing the consequences of conflict, that is, transformation of that society.

Conceptual framework, which is very important when dealing with the past, includes;

1) The right to know, 2) The right to justice or to trial, 3) The right to reparation, and 4) The right on non-recurrence of conflicts.

What does the right to know contain?

The right to know contains several sub-components: Truth commissions, investigative panels, documentation, archives, finding the missing persons, etc.

One cannot but think of the families of the victims who are still trying and hoping to find the remains of their loved ones who went missing. Why is this so important? Because families of victims cannot be rehabilitated until they find out the truth. All those who lose their children, mother, or father, husband of wife, no matter if they are Albanians or Serbs, Roma or Bosnians from Kosovo are no different: they all have the right to know the truth, because there cannot be a real future without knowing what exactly has happened to them. Families of victims struggle for public and institutional recognition, recognition of their suffering, victimization and sacrifices. They need an apology, respect and/or compensations for their losses.

What does the right to trial contain?

The right to trial consists of civil suits and alternative mechanisms of mediation between the parties emerging from a dispute, international tribunals, national courts, witness protection and monitoring of war crimes trials.

• Penal prosecutions mean judicial investigations of those who are responsible for human rights violations. National courts deal with criminals that committed less serious crimes because international tribunals cannot deal with all criminals, but mainly with perpetrators of war crimes and crimes against humanity, based on the chain of command.

Witness protection is a component that requires mobilization of all institutions, media and civil society in order to implement it in the practice, and it has a high cost. As reflected by the report of the Council of Europe, witness protection in Kosovo is still inadequate.

3.  What does the right to reparation mean?  

The right to reparation consists of rehabilitation of victims, compensation of war damages, return of displaced persons, public apology by the Government that committed crimes and building of memorials by institutions.

•Reparations or symbolic compensations are initiatives sponsored by the states responsible for atrocities committed, which help with reparation of material and moral damages caused by abuses in the past. They usually include financial compensations or official apologies and regrets.

• Building of memorials consists of building of museums and memorials that preserve public memory for the victims, to raise moral awareness among next generations on the abuses that occurred in the past and to prevent the repetition of the past.

4. What does prevention of repetition of the past mean?

Prevention of repetition of the past is the last component of dealing with the past and consists of disarmament, disbanding, integration of former fighters, institutional reforms and in particular reforms in security system, democratic oversight of security sector and background vetting or verification of civil servants and of those working in security institutions. Kosovo has made some reforms in this field, for instance in the Police, but there is still work to be done on democratic oversight of the security sector and integration of war veterans. Security system reforms aim at transforming the army, police, judiciary and state institutions that previously served as instruments of suppression and corruption into instruments of public service.

Why dealing with the past is needed in Kosovo?

Dealing with the past is needed in Kosovo because families of victims and missing persons are entitled to know who used the violence against their family members and why, and where is the location of graves or remains of their family members?

The courts are overloaded with war crimes cases, and due to many reasons, it is impossible to process all war crimes cases. Therefore, an independent commission would ease the work of the courts and would gather data related to killings of civilians and soldiers. Such a commission would also put pressure at countries of the region to make information available on mass graves and would establish the truth based on forensic facts.

This commission would also enable public hearing of the victims, whereby all citizens of the region would be able to hear experiences of victims, and this would help in shedding light on the truth and raise the awareness of the society. Through public hearings, the dignity of victims would be restored because the victim would be in the centre of attention; the victim would have name and surname, it would be a human being and not a number; also the criminal would have name and surname, regardless of group or ethnicity it belongs to. Only in this case, new generations would hear a different truth from the one that is served in history books or by political elite.

In addition, financial compensations would ease the pain of family members of the victims, and a public apology by the authorities that exercised the violence would ease the pain of the victims and their family members.

Only then, a platform of coexistence and solidarity would be created between the communities that used to be in conflict. This process requires effort, courage, will and time.

Only when the conditions for proper Dealing with the Past are created, the communities will be able to reach the point of reconciliation. “Reconciliation” is identified as a key objective but often is left open ended in practice. As a term, it has strong colors of Christianity, its intercultural implementation, especially in situations of extreme violence is very controversial. As a result, there is a growing tendency in the international literature and in the discourse of dealing with the past that defines the reconciliation as a process that facilitates reestablishment of social relationships on the basis of values such as human dignity, respect and the right to physical and psychological integrity, this set of values must be restored after the conflicts.

Definition of ‘reconciliation’ in the transitional justice means – a society that displays the ability to manage conflicts in a non-violent manner. A society that can coexist with diversity/pluralism of opinions, races, cultures and religions, and sees this as basis of its identity. A society, whose structures enable an inclusive development rather than exclusion of the others.

Dealing with the past and the concept of reconciliation is encountered in the Ahtisaari’s Settlement Proposal. Article 2 on Human Rights and Fundamental Freedoms obliges the institutions of Kosovo and its citizens to promote the process of dealing with the past. Article 2.5 states: Kosovo shall promote and fully respect a process of Dealing with the Past among all its Communities and their members. Kosovo shall establish a comprehensive and gender sensitive approach for dealing with its past, which shall include a broad range of transitional justice initiatives mentioned above.   

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