Lost in transition – EU financed legal aid programme between Serbia and Kosovo falters

by Massimo Moratti

Since 2012, I have been informing the readers on some key developments in the field of property rights, as they emerged from the practice of a legal aid project in Serbia for refugees from Bosnia and Croatia as well as displaced persons from Kosovo*. The November 2011 – June 2015 phase of the project (which has been funded by the EU Delegation to Serbia since 2008) was implemented by a team of lawyers and barristers I had the privilege of leading.

Many of the blog readers might wonder what happened with the Project since the last post two years ago, and I am glad to use this opportunity to provide an update on subsequent developments. At that time, the project was due to end in June 2014, but received a one year cost extension from the EU Delegation to the Republic of Serbia. The project was financed under the Instrument for Pre-Accession (IPA), the main fund to support countries that are in the EU accession process.

Under the terms of the IPA, a local public institution, in this case the Serbian Government’s Office for Kosovo and Metohija (the OKiM), was designated as beneficiary of the Project. Accordingly, the OKiM provided free legal aid to displaced persons from Kosovo via outsourcing to a consortium of private companies and NGOs, which in turn implemented the project under the EU flag.

This is the standard arrangement for EU funding, but in this specific case, where the divide between Serbia and Kosovo* institutions remains wide, it was crucial to make sure that a team of EU-funded lawyers could operate between the two legal systems, engaging in de facto conduct that I defined as “shuttle legal aid”.

For those not familiar with the practicalities of the issue, it is worth recalling that there are, according to the Serbian authorities, around 200,000 displaced persons from Kosovo. It is unclear how many of them have not yet solved their property issues. While displaced persons are mostly in Serbia, their properties and other assets are located in Kosovo, and any attempt at ensuring the protection of their rights needs to be conducted before the institutions of Kosovo*.

However, the two legal system do not recognize each other’s documents, and there is no functioning post or telephone system between Kosovo* and Serbia. Lawyers and legal aid NGOs from Serbia are often reluctant to travel to Kosovo, both because of logistical and security issues and due to lack of familiarity with the institutional setting of the former Serbian province. Lawyers from Kosovo do not seem interested in conducting any outreach to potential clients in Serbia and more important than everything else, displaced persons themselves do not have the financial means to pay for legal expenses.

The EU-funded legal aid programme presented a solution to these problems, since it could operate in both Kosovo and in Serbia. The positive aspects were numerous: the project bridged the institutional gaps between the two systems, it was staffed with an adequate number of lawyer and barristers familiar with national and international law, and its proceedings were completely free for the IDPs (including coverage of court fees and expenses).

Indeed, besides successfully representing thousands of persons in administrative and court proceedings, the Project generated valuable information, in that it could closely observe the workings of the courts of Kosovo* in the context of property cases. Most of these cases involved disputes about the possession of property where an inter-ethnic element was present, which raised the profile and the tension in many of these disputes.

The project had a unique point of view, namely that of the claimants and their legal representatives and it could accordingly witness how legal proceedings took place “from the bottom” and very often without other international observers present. This unique point of view allowed the project to use its cases to collect information on court practice and in this manner legal aid became a “fact finding” tool, regularly reporting its findings on its website and from time to time on this blog.

The topics covered were some of the most contentious in Kosovo. Moreover, they involved the issue of property rights, where, as consistently highlighted in the EU Progress Reports about Kosovo, progress was slow or non-existent.

In the course of its work, the Project successfully represented displaced persons who were trying to challenge the illegal occupation, and in some cases demolition, of their properties. In other cases, the Project initiated criminal and civil proceedings cases against persons who acquired property via “fraudulent transactions”, highlighting patterns indicating that the forgery of property documents and records was not just an act of few corrupt individuals, but in certain areas a concerted effort to grab land to be used for business purposes.

In several landmark cases before the Constitutional Court of Kosovo, it was also possible to highlight how an internationally funded mass claims mechanism, the Kosovo Property Agency (KPA) had itself violated the rights to property and fair trial by refusing to solve property disputes or to award compensation to claimants.

However, like all projects, this one too came to an end on 12 June 2015.

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The Kosovo Constitutional Court on displaced persons’ property rights: Can mediation ever count as enforcement?

by Massimo Moratti

Protecting the property rights of displaced persons in post-conflict scenarios presents a number of interesting challenges, not least when internally displaced persons (IDPs) face illegal construction on their land and therefore are forced to seek remedies before the relevant institutions, including mass claims mechanisms.

One of these cases, which is probably not an isolated one, occurred recently in Kosovo, where the Kosovo Property Agency (KPA) is the local mass claim mechanism which inherited the competences of the UNMIK Housing and Property Directorate (HPD).  Established in 2006, the Kosovo Property Agency became an independent agency functioning in accordance with the Constitution of Kosovo after the unilateral declaration of independence.  The mandate of the KPA focuses on claims for land and commercial property, which were not addressed by the UNMIK HPD, since the HPD’s mandate did not cover such claims and the local courts were in theory competent for the receiving them. Since its inception, the KPA has collected claims for over 42,000 properties and decided 96% of those claims.

While the process of issuing decisions is approaching its end, the implementation of such decisions in a number of cases is becoming particularly problematic, especially those cases where a new building has been constructed on claimed properties. It is worth recalling that the KPA was created in 2006 and for the period 1999-2006 there was no claims mechanism to deal with claims for land, nor were courts capable of effectively processing such claims.  In the meantime, “a lot has been built in Kosovo”, to quote one of the officers of the Ombudsman office when contacted about the issue of illegal construction.

The problem the KPA is facing now is how to deal with such cases, where an illegal occupant has built a residential or commercial building on a claimed plot of land. In theory, the KPA could resolve to seize and demolish the building, sell it at an auction, broker a lease agreement or place the building under administration. However, practice has departed significantly from the procedures foreseen in the law. The KPA has instead developed a mediation procedure in order to try to solve these cases without resorting to destruction of buildings. IDPs facing illegal construction are now routinely informed by the KPA about the impossibility of demolish such buildings and offered the possibility for mediation.

This offer of mediation raises a number of issues and leaves a number of questions unanswered.  The case KI187/13 recently brought before the Constitutional Court of Kosovo highlights how the procedure of mediation collides with the provisions of the European Convention on Human Rights (ECHR). In this case, a female IDP who left Kosovo in 1999 and has lived in destitute conditions since sought repossession of a large plot of land in an attractive location outside Pristina with significant commercial value. On the same plot, an illegal occupant had built three houses with a swimming pool. The applicant claimed her property in 2006 and a KPA decision in her favor became final and binding in 2013.

The KPA however told the applicant that they could not enforce her claim, because the property had changed since the time she owned it and the KPA lacked the resources to demolish the existing buildings. They offered instead to mediate between her and the illegal occupant. The applicant refused such mediation and instead addressed the Constitutional Court of Kosovo, claiming a violation of her rights to property, to a fair trial and to an effective remedy.

Reconciliation, or getting over losing to win in the Balkans

by Rhodri C. Williams

For several years now, I have provided periodic technical advice to a European Union funded program to aid refugees and displaced persons in Serbia. Although the deck has been stacked pretty heavily against the program’s clients and the rest of the world’s attention long since wandered from their plight, it means a lot to me to be able to continue participating in picking up the pieces from the conflicts that shocked me into political consciousness back in the distant 1990s.

My most recent trip came last week, for a training in Belgrade. Much on the way to Serbia was bracingly familiar, beginning with the blithe surliness of the nicotine-raspy JAT stewardesses who make you eight again and dealing with the cafeteria ladies as they slap a canned sandwich down on your bobbling tray. Belgrade itself was indecently unchanged, with its steady throng of cheerful and careworn pedestrians wandering amidst canyons of faded glory. Of all the Eastern European places I return to, Belgrade seems to change the least, not resisting so much as ignoring the tsunami of Benetton gentrification that rages all around it.

This is not to say that the politics haven’t changed. In many respects, its been a banner year for the West Balkans. As Besar Likmeta recently pointed out in Foreign Policy, the accession of Croatia to the EU on July 1 capped a sequence of breakthroughs ranging from the belated election of a true reform candidate in Albania to the political galvanization of Bosnia and most notably, the power-sharing agreement arrived at between Belgrade and Pristina. At first glance, the only parties that seem bitterly divided or incapable of applying the rule of law at all these days are within the Tribunal that was meant to fix all that (on which, see Eric Gordy’s latest ruthlessness here).

However, an atmosphere of palpable unease remains over issues like the delicate détente over Kosovo. The lawyers I met with last week exemplify the paradoxical nature of post-Yugoslav normalization. On one hand, there they are, Serb lawyers representing Serb clients in Serbian, working the Kosovo courts every day. The first time I went to Kosovo in early 2000, the idea was unimaginable (‘suicidal’ would not be out of place) and its realization gives some hope for a viable multi-ethnic future.

On the other hand, the lawyers had a laundry list of shenanigans, underhand, bureaucratic and worse. In many senses, the uprooted and impoverished clients they represent are the most easily dispensable part of a veritable mountain of irregularities and grievances accumulated during a decade of international administration. Property claims remain a significant issue, but must be viewed alongside unresolved disappearances, highly contested privatizations, potentially massive liability to the former employees of state firms and other pending calamities.

That said, the lack of trust remains striking. After dinner one evening, the conversation revolved around plots. Is this a blocking maneuver meant to distract us from that or wedge us out of there? There was some ironic laughter but an undertone of real worry. For Serbs living and working in Kosovo, a sort of elemental uncertainty that long since evaporated from more settled former war zones like Bosnia still clings.

The Yugoslavia Tribunal produces a new conviction and more confusion

by Rhodri C. Williams

Last week, I had the opportunity to join a symposium at the Hugo Valentin Center (HVC) at Uppsala University on the aftermath of the November 2012 Gotovina decision by the Appeals Chamber of the ICTY. Gotovina was the first in a run of three high profile acquittals, of which two (Gotovina and the more recent Perisic) involved defendants previously sentenced to lengthy jail terms by their respective Trial Chambers.

It was a good discussion, which I can summarize briefly. Tomislav Dulić of the HVC opened by contrasting many historians’ acceptance of the now notorious “Brioni transcripts” as establishing the intent of the Croatian Government to expel Serb civilians from the Krajina region in 1995, against the Gotovina Appeals Chamber judges’ reluctance to convict in the face of ambiguities in the recordings.

Mark Klamberg of Stockholm University followed with a cogent legal analysis of Gotovina (available here on his blog). He noted that judicial fact-finding is necessarily narrower than historical fact-finding, both in order to speed the conclusion of cases and secure the stability of their outcomes, but pointed out a number of troubling questions raised by the Gotovina decision, including the peremptory rejection of the Trial Chamber’s finding of a joint criminal enterprise (JCE) to expel the Krajina Serbs based on the collapse of a single element in the case for a JCE (related to mortar targeting).

Roland Kostić (HVC) then presented some of his findings from repeated surveys in Bosnia, noting how the Tribunal’s rather modest efforts to explain itself have long since been marginalized by a torrent of predictable and frequently dogmatic local spin (among other glum statistics, it seems the average Bosnian currently ‘tunes in’ to the ICTY about once a year).

I contributed as well, with a post-mortem of the various post-mortems of Gotovina, et.al., including the current blame debate between those who see a well-earned rebuke to an overreaching and under-informed Del Ponte Office of the Prosecutor (OTP) and those who see the Meron Appeals Chamber as obtusely pedantic at best and politically motivated at worst. The fact that both sides largely agree that the resulting acquittals represent an institutional failure, particularly with regard to the victims of the war, is cold comfort.

All in all, one came away with the impression of an institution that had lost its way, and, being burdened with far too many expectations, looked set to achieve few of them. On the other hand, the crisis may have spurred a trend toward clearer thinking on what the Tribunal really can and should do. Richard Dicker at Human Rights Watch recently pointed out that reconciliation can never be a realistic short-term goal for any institution and deterrence remains elusive, but that international trials nevertheless “can, by honoring victims, rendering justice and imposing punishment on the guilty, demonstrate the rule of law in the communities most affected by the crimes.”

The fundamental importance of restoring civic trust by reaffirming norms subverted by mass atrocities has been a central theme for the current UN Special Rapporteur on transitional justice issues, Pablo de Greiff. A recent post in EJILTalk on the current concentration camp guard trials in Germany by Kai Ambos forcefully underscores this point:

Punishment reconfirms and thus restores the norms which have been broken by the criminal act. Thus, with punishment the law reaffirms itself against its negation, … . In this perspective punishment is supposed to strengthen the society’s trust in legal norms and therefore to ensure that the people act according to the law…. That goes far beyond a mere symbolic effect.… For without the society’s trust in legal norms and of course in the institutions which apply these norms, no state can permanently claim any legitimacy vis-à-vis its society.

So there is still an important job for the ICTY to complete, in other words. However, it is unlikely to happen if the prior OTP and the current Trials Chamber keep conspiring to produce unbroken acquittals. Meanwhile, there seems to be little public soul-searching going on at the Tribunal itself. The institution’s twentieth anniversary passed in near-funereal silence outside the Hague, but was celebrated there with diagrams and speeches that seem to exude damage control. While all involved cited undoubted successes on the part of the Tribunal, there was a sense between the lines of the institution seeking to reassure itself of its importance.

This week, however, the ICTY Trial Chamber pulled off the remarkable feat of creating yet more confusion, and this in the course of a mere 48 hours.

We have met the enemy and it is We (the Peoples)

by Rhodri C. Williams

Its now twelve years since the 9-11 attacks sent the post-Cold War human rights revival into a tailspin, and two years since the outbreak of what would quickly amount to civil conflict in Syria – where 70,000 have died and millions are displaced; where the international community cannot even pay for relief, let alone intervene to stop the regime from firing scud missiles into cities it purports to be defending; where the post-Ottoman Middle Eastern political order threatens to crack into pieces, risking the worst collective foreign policy failure since Bosnia, and where the ‘responsibility to protect’ doctrine has met an untimely and inglorious end .

So you might think we would all be pretty inured to a nip of salt with our humanitarianism these days. Not so, it seems. Its been a particularly bad run recently for those who still reflexively think the UN is part of the solution (hey, I’m with you) despite all better advice. I’m not quite sure where to start. Perhaps with the UN decision two weeks ago to assert diplomatic immunity for having failed to take measures to ensure that its peacekeepers’ latrines avoided triggering a devastating outbreak of cholera in Haiti. Particularly rich, as the Economist points out, coming on the same day as the UN pilloried Haiti for failing to hold its former dictator ‘Baby Doc’ Duvalier accountable for his crimes.

The fog of war crimes prosecution – the ICTY Appeals Chamber acquits Perišić

by Rhodri C. Williams

The Appeals Chamber of the ICTY continued its run of high-profile acquittals yesterday, rejecting all the charges against former chief of staff of the Yugoslav Army (Vojska Jugoslavije or VJ) Momčilo Perišić. The real shock in this series came early, with the highly controversial and bitterly split decision releasing Croatian Generals Ante Gotovina and Mladen Markač last November. Two weeks later, the blogosphere took the acquittal of Kosovo Albanian former fighters Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj somewhat more in stride. Here, the case against the accused was known to be shakier and the Chamber managed a unified decision. 

So in some senses, the Perišić decision seems to establish a pattern. The Appeals Chamber appears to be applying a stricter level of scrutiny than anyone initially expected, and cases seen as relatively strong must therefore fall along with the shaky ones. Perišić appears to have been somewhere in the middle. As BBC notes, the Trial Chamber had sentenced Perišić to hard time – 27 years – for having knowingly supported Serb forces in Bosnia that carried out crimes against civilians in Sarajevo and Srebrenica. On the other hand, Perišić had already been acquitted of any direct involvement in crimes such as the Srebrenica massacre, and the remaining ‘aiding and abetting’ charges proved easy for the Appeals Chamber to unpick.

This is not to say that some legal controversy is excluded. In this case, the Appeal Chamber’s decision was not unanimous, and the lone dissenter, Judge Liu, asserts that the majority effectively raised the bar in a manner that “risks undermining the very purpose of aiding and abetting liability by allowing those responsible for knowingly facilitating the most grievous crimes to evade responsibility for their acts” (para. 3). However, whatever legal debates will arise from the relatively pithy 50 page decision in Perišić, a great deal of speculation will continue to focus on what remains unsaid. In discussing the earlier Haradinaj decision, I tried to get at what I considered to be some serious non-legal concerns about the ICTY legacy:

… the Tribunal’s jurisprudence remains not only relevant to the development of broader international criminal law, but also – for better or for worse – to both the consolidation and destabilization of national narratives in countries forged in wars now fought an entire generation ago. For those who did not experience these wars but whose political reality remains shaped by them, the Court’s decisions on individual responsibility for past crimes are likely to be taken as evidence of collective vindication or collective stigmatization, raising a real risk that the legacy of the ICTY may be to perpetuate rather than lay to rest wartime animosities.

In discussing these issues, it is crucial not to fall into an unquestioning reliance on the same ethnic stereotypes and tropes that fuelled the war. Dunja Melcic provided a useful reminder on this point in her recent discussion on Greater Surbiton of the popular and media reception of the Gotovina judgment:

‘The Serbs’ didn’t perpetrate any act of genocide and there is no formulation in the Court’s documents that would justify such reckless language. A war-crimes tribunal should be the place where this supercilious ethnicistic treatment of the conflict and the war finds its end. What counts at the Court, is the crime and not the nationality of the accused.

It is nevertheless impossible to ignore the fact that the Court has become enmeshed between two opposing Yugoslav ethno-nationalist theses, either of which would gravely undermine the credibility of the Court if they could be proven, and – crucially – both of which are incompatible with the fundamental idea of the Court as an impartial judicial actor without political motives.

Two weeks after Gotovina, the ICTY acquits Haradinaj defendants

by Rhodri C. Williams

Just as the controversy surrounding the recent ‘Gotovina decision’ by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) was beginning to subside, another bombshell. In this case (involving a re-trial), the Trial Chamber yesterday acquitted three Kosovo Albanians accused of torture and murder against Serbs and others in western Kosovo in the late 1990s, ordering their immediate release.

This decision will no doubt be turned inside out today in the blogosphere, and rightly so. Taken together with the recent Gotovina judgment, it is part of the swan song of an institution created with great hopes (mixed with a degree of healthy skepticism from some quarters) just as the great post-Cold War wave of belief in the restorative power of human rights and international justice arguably crested.

Having endured into the post 9-11 era (in large part due to inexplicable delays in acquiring its most prominent suspects), the Tribunal’s jurisprudence remain not only relevant to the development of broader international criminal law, but also – for better or for worse – to both the consolidation and destabilization of national narratives in countries forged in wars now fought an entire generation ago. For those who did not experience these wars but whose political reality remains shaped by them, the Court’s decisions on individual responsibility for past crimes are likely to be taken as evidence of collective vindication or collective stigmatization, raising a real risk that the legacy of the ICTY may be to perpetuate rather than lay to rest wartime animosities.

This in itself is not a critique of the ICTY. The Tribunal can hardly be blamed if far more is read into their decisions than either they or those who shaped their mandate ever intended. However, it does place a particular onus on the Court to be seen to act professionally and impartially. Observers such as Marko Milovanovic have argued that the Appeals Chamber failed this test in Gotovina, overturning a unanimous and comprehensive Trial Chamber decision by means of a rancorously split judgment only sixty pages long.

So what impact can Haradinaj be expected to have on the debate? At first blush, both the parallels and differences with the Gotovina judgment are striking.