Any deal between Kosovo and Serbia to normalise relations must include an extradition treaty and bilateral justice agreements so war crimes suspects cannot evade justice - but why is the EU avoiding this?
The momentum for a deal between Belgrade and Pristina is building.
US President Donald Trump has dangled the possibility of a White House signing ceremony for Presidents Hashim Thaci and Aleksandar Vucic, and European Union leaders are eager to build on the momentum of the recent settlement to Macedonia’s name dispute with Greece.
While the specifics have not been decided upon, every potential deal being discussed risks steamrolling over one very important constituency - victims of the Kosovo war.
This is especially sensitive in Kosovo, where civilians were disproportionately victimised by war crimes. Victims have thus far found glimmers of hope in the words and actions taken by Kosovo officials. Recently, its leaders committed to a negotiation platform that prioritises the issue of war crimes impunity in Serbia.
Roughly two years ago, officials confirmed arrest warrants for 57 Serbssuspected to have been involved in crimes committed in places like Djakovica/Gjakova, Cuska, Pavljan, Zahac and Ljubenic; in the case of the three murdered Bytyqi brothers; and the infamous ‘refrigerator trucks’ massacre cover-up scheme.
But increasingly, these words and actions risk becoming worthless as the EU, especially, has quietly and conveniently ignored perhaps the thorniest issue that could be raised during the dialogue aside from recognition of Kosovo itself – each country prosecuting the other country’s political elite.
Kosovo prosecutors need certain treaties with Serbia to extradite suspects from Serbia and to obtain access to evidence and witnesses located in Serbia. But Serbia doesn’t recognise Kosovo, so these bilateral agreements don’t exist. Serbia also needs such commitments from Kosovo.
To date, requests for prosecutorial assistance or extradition have been brokered solely through EULEX and UNMIK, the EU- and UN-created mechanisms that have helped govern Kosovo since the end of the war. But this set-up is clumsy and increasingly toothless. Neither is meant as a permanent institution.
The special court for war crimes committed by Serbian nationals that Kosovo leaders recently proposed should be seriously considered and might fill some of this void. But it wouldn’t address the commonplace requests for assistance in cases that don’t involve war crimes or for which the application of international humanitarian law are more difficult to prove.
Without a bilateral extradition agreement, each country will have perhaps insurmountable legal and political problems with honouring the other country’s extradition requests. This will remain true even if Kosovo joins Europol and Interpol, the two relevant international mechanisms that handle extradition requests.
While Kosovo joining Europol and Interpol has been discussed, Kosovo’s constitution and Serbian law prohibit nationals from being extradited without other legally binding instruments. For victims of the war, joining these bodies without a bilateral extradition agreement is mostly meaningless.
Mutual legal assistance agreements refer to the authority and procedures whereby the prosecutors of one country can access evidence and witnesses from another country.
This is a big deal. Belgrade was the capital and administrative hub of the former Yugoslavia. Crucial files, evidence, witnesses, and suspects remain in Serbia. They are key to fair and legitimate investigations and prosecutions of Serbian suspects.
Although they are imperfect in form and execution, many other Balkan countries enjoy these bilateral treaties. Which begs the question, why have the EU, Serbia and Kosovo sidestepped the issue?
The answer, of course, is that they are seen as too toxic for political elites. Serbia still has an outstanding arrest warrant for Kosovo’s Prime Minister, Ramush Hardinaj. Just last spring, Serbia’s Interior Minister Nebojsa Stefanovic threatened arrest if Hardinaj set foot in Serbia.
For its part, Kosovo has outstanding arrest warrants for former Serbian Army chief Ljubisa Dikovic, and a member of the governing Serbian Progressive Party’s executive board, Goran Radosavljevic.
These are just a few of the hundreds of suspects each side believes the other is harbouring. For more than 20 years, suspects have been using this legal vacuum to evade justice. No one seems interested in opening the floodgates of justice against the elite they are negotiating with, sometimes directly.
But let’s be honest. No technical agreement will guarantee justice. Leaders in both countries have fought for impunity for far too long. They will continue to object to such prosecutorial requests as being ‘politically motivated’, incomplete or unsubstantiated.
But this is perhaps the last-best opportunity to plant seeds of justice. Along with support for RECOM, the proposed regional fact-finding commission on the 1990s wars, and cooperation to locate missing persons, these justice-related agreements are necessary for the ‘comprehensive’ agreement that President Thaci and others have promised.
Peaceful advancement of relations between the two countries should absolutely be supported. But the terms matter.
NATO intervened in Kosovo nearly 20 years ago in large part to stop war crimes. Kosovo’s legitimacy as an independent nation is rooted in the outrage demanded by the blood that ordinary civilians spilled during the war. Kosovo has recently taken steps to elevate the issue of unresolved war crimes in its dialogue with Serbia.
But any deal that ignores the granular mechanisms that enable justice would be incomplete. It would betray the history behind a ‘historic’ deal. The EU, Kosovo and Serbia must immediately begin to prioritise this issue.