Analysis 09 Aug 16

Kosovo Genocide Suit Against Serbia ‘Likely to Fail’

Kosovo President Hashim Thaci’s proposed plan to bring a genocide lawsuit against Serbia at the International Court of Justice for atrocities during the 1998-99 war has little chance of success, experts suggest.

Kristin Brown BIRN
The International Court of Justice in the Hague. Photo: ICJ.

Hashim Thaci’s announcement that Kosovo will sue Serbia for genocide and win reparations for Belgrade’s actions in 1998-99, will not likely come to fruition, analysts told BIRN.

For the lawsuit to be successful, Kosovo first needs to become a UN member, but also to have support for its case from previous court rulings.

However, the few members of Serbian forces who have been prosecuted have been tried for war crimes during the Kosovo conflict and not genocide.

In an interview last week with Serbian newspaper Danas, Thaci said his country has been preparing for several years to file a lawsuit at the International Court of Justice, claiming Kosovo Albanians were the victims of genocide committed by Serbia as a successor of Yugoslavia, which was led during the war by President Slobodan Milosevic.

But experts argue that there are many obstacles Kosovo could face on its way to the courtroom at the ICJ.

No UN membership

The first obstacle to Thaci’s case is that UN membership is necessary to file a lawsuit with the ICJ.

"President Thaci’s suggestion of a Kosovo complaint against Serbia in the ICJ is not very realistic in light of the fact that Kosovo is neither a member of the United Nations nor a party to the ICJ statute,” said Mitt Regan, a law professor and co-director at the Center for the Study of the Legal Profession at Georgetown University Law Center.

To join the UN, nine of the 15 members of the UN Security Council are required to vote in favour, without any dissent from the five permanent members. But two permanent Security Council members, Russia and China, support Serbia’s claim to have sovereignty over Kosovo and have prevented Pristina’s petition for membership from being reviewed by the UN General Assembly.

If Kosovo could overcome this obstacle, it would need a two-thirds majority vote from the General Assembly to be admitted. Currently, 109 out of 193 UN member states recognise Kosovo’s independence, which is about 56 percent.

The legal avenues for Kosovo to establish its lawsuit are limited because the ICJ does not have compulsory jurisdiction, which means that it can only hear a case if both accuser and accused agree.

An exception to this is for members of the Convention on the Prevention and Punishment of the Crime of Genocide, CPPCG. Article IX of its statutes grants compulsory jurisdiction for crimes defined in the convention; this would be the legal basis for Kosovo to bring its case before the ICJ.

When Serbia signed the convention in 2001, it added a reservation which states that it does not consider itself bound by Article IX, and Belgrade must explicitly consent to the court’s jurisdiction in each case.

But the ICJ will probably find that Serbia is subject to the court’s jurisdiction as one of the successor states of the Federal Republic of Yugoslavia, which was bound by the provisions of the CPPCG.

International court precedents

Kosovo’s proposed suit will also face obstacles based on the court’s precedents, as genocide is very difficult to prove. The ICJ has only recognised genocide once - the murder of some 8,000 Bosniaks from Srebrenica in 1995.

“The chances of the ICJ finding that genocide was committed by any of the two sides during the Kosovo war are almost zero considering that nobody was even charged, let alone convicted, for genocide in Kosovo by the ICTY or another court,”Milica Kostic, the legal director at the Humanitarian Law Centre in Belgrade, told BIRN.

When Slobodan Milosevic was indicted for crimes committed during the Yugoslav wars by the International Tribunal for the Former Yugoslavia, he was charged with genocide in Bosnia, but not in Kosovo.

Many experts argue that if the international community believed that genocide had been committed in Kosovo, charges against Milosevic would probably have been filed at the time.

No court in Serbia or Kosovo has ever qualified what occurred during the Kosovo war as genocide.

Hashim Thaci.

Political motivations

In light of the difficulties facing Kosovo’s potential lawsuit, the motivation for Thaci’s threat could be seen as political.

According to James Ker-Lindsay from the London School of Economics, the suit “in part, may be an attempt to quell nationalists’ voices in Kosovo”.

“There have been a lot of complaints about the Belgrade-Pristina dialogue [to normalise relations] and many feel that the government has ‘gone soft’ and is selling out Kosovo’s interests to Serbia, for example over the Association of Serb municipalities. This may be an attempt to show that this is not the case,” Ker-Lindsay told BIRN.

The suit may also be motivated by the potential indictment of senior Kosovo Liberation Army figures by the soon-to-be-established Kosovo Specialist Chambers which will address human rights abuses committed between 1999 and 2000.

“Many in Kosovo are deeply unhappy at this prospect as they believe that it will call into question the righteousness of their armed campaign for independence. This may be an attempt to shore up the justification for the conflict by showing that Serbia had been engaged in a systematic campaign of violence,” suggested Ker-Lindsay.

In a report published by the Council of Europe in 2011, Thaci is named as a political leader of the paramilitary group that was responsible for violations of human rights law, including torture and organ trafficking.

A lawsuit successfully brought before the ICJ would undoubtedly strain the Brussels-backed talks between Belgrade and Pristina.

“Belgrade will not take well to such a move. However, I don't think it would do irreparable damage. Neither side can afford to walk away from the dialogue,” said Ker-Lindsay.

In spite of efforts to improve relations, if Kosovo successfully files a case at the ICJ, Serbia may decide to retaliate with a counter-suit.

The director of the Serbian government’s office for Kosovo, Marko Djuric, responded to Thachi’s threat by stating that “if anyone committed genocide in Kosovo it was the KLA and its commanders”.

Kostic suggested that this rhetoric hints at a possible retaliatory suit by Serbia.

Wasting money

The outcome of Kosovo’s suit will probably be similar to those in the competing genocide claims filed by Serbia and Croatia at the ICJ, which took several years to resolve, were extremely expensive and had unsatisfactory results for both countries.

According to Croatia’s justice ministry, the country spent 3.7 million euro on their suit against Serbia, while the Serbian foreign ministry said that Belgrade spent 800,000 euro on its unsuccessful case.

Ker-Lindsay argues that filing a lawsuit is not the most efficient way for Kosovo to address past atrocities.

“There certainly does need to be a full examination of what took place, and those responsible for crimes need to be held accountable. However, pursuing these cases at the ICJ, rather than cases against individual perpetrators, is really not the best way of approaching the issue,” he said.

Kostic also believes that Kosovo’s suit would not be a productive use of time or resources and would delay efforts to improve relations with Serbia.

“Serbia and Kosovo need to speak about their wartime pasts and strive to reveal the facts about the conflict and the crimes committed, instead of wasting energy on futile actions, which can only spur further tensions,” she said.

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