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“I am not after organisations, I am not after ethnicities, I am looking at individual responsibility for what was done,” David Schwendiman told BIRN in an interview.
“If that message gets out clearly to the people that are affected by this, then maybe they will understand that the court is not pro-Albanian or anti-Albanian, pro-Serb or anti-Serb, but that we are just doing our job,” he said.
Schwendiman is the chief prosecutor at the new Kosovo Specialist Prosecutor’s Office, set up in The Hague with the mandate to prosecute crimes by former Kosovo Liberation Army fighters from 1998 until 2000.
Senior KLA figures are expected to be indicted for alleged crimes committed during and after the war with Serbian forces, although the first indictments are still pending.
In Kosovo, the court is seen as biased as it will only try former KLA fighters – people perceived as liberators by the majority of the country’s ethnic Albanian population – while in Serbia, the court has wide support due to hopes that it will prosecute crimes against Serbs.
But Schwendiman said that the main message he wanted to convey during his first visit to Serbia and Kosovo last week is that he will be independent and free of any political influence.
“Our role is to look at individuals, not to look at ethnicities; I know there is a perception out there – not a lot I can do about that, other than do my job and to do it right,” he explained.
The new court will hear cases arising from the 2014 EU Special Investigative Task Force, SITF report which said that unnamed KLA officials would face indictments for a “campaign of persecution” against Serbs, Roma and Kosovo Albanians believed to be collaborators with the Belgrade regime.
The alleged crimes include killings, abductions, illegal detentions and sexual violence.
Kosovo and Serbian media have speculated widely about who will be prosecuted by the court.
A Council of Europe report from 2011, which laid the grounds for the SITF investigation, alleged that Kosovo President Hashim Thaci was key figure in an organised crime ring that was responsible for human rights abuses in post-war Kosovo. Thaci has denied the allegations.
However, Schwendiman declined to identify who was under investigation, and said that one of the reasons for his visit to Belgrade and Pristina last week was to quell such rumours.
“I wanted to raise the issue of speculation, assumptions and rumours and make sure that people understood that unless it comes from me, it is not something you should believe,” he underlined.
Ensuring assistance and independence
Last week’s visit was Schwendiman’s first to Kosovo and Serbia, although he has experience working in the Balkans. From 2006 to 2009, he served as an international prosecutor in the Special Department for War Crimes at the state prosecutor’s office in Bosnia and Herzegovina.
“I have never been to Pristina and I have never been to Belgrade, although I have been in the region. I wanted to meet the people that we need to be working with as we go into this next phase. I wanted to ensure that they understood we appreciate their continuous support and effort and I also wanted to ensure they understood from me key things about my job and my responsibility,” Schwendiman told BIRN.
In both capitals, he met senior officials whose continued support he will need.
“I also talked about my mandate, which is not miles wide, it is a focus mandate, I am a special prosecutor, not that there is anything special about me, but because the task has been focused, it is not like general plenary jurisdiction of tribunals, it is a very focused mandate,” he explained.
The Specialist Chambers and Specialist Prosecutor’s Office will deal with crimes committed between January 1, 1998 and December 31, 2000, but will only prosecute those involved on the Kosovo Albanian one side of the war, which is considered a novel approach as it focuses on the accountability of the ‘victors’ of the conflict.
But again, Schwendiman stressed that this does not mean that the prosecutions are biased.
“I wanted to stress my independence that the key thing about what I am doing is independent, that anything I am supposed to be doing will be based solely on my understanding of the facts as we collected them and as we will continue to do and the law as I read it. And the law, as you know, absorbs and integrates international standards that already exist, so I wanted people to understand that,” he said.
He and his team also wanted to ensure they will get the continued assistance they need from both Serbia and Kosovo, meaning access to documents, witnesses and any other material deemed important for their investigations.
“The Kosovo government assisted in various ways during the investigation, [the EU rule-of-law mission] EULEX as well. I received assurances from everybody we spoke to on this trip that we would have whatever assistance we needed and I am absolutely confident we will get it,” Schwendiman said.
“And one of the purposes of this trip was to meet the people that are going to be responsible for doing that and looked them in the eye and tell them what I want and ask them to reconfirm their support,” he added.
Solid base of evidence
Who will make any arrests and how the extradition process will work remains unknown, however.
It is also yet to be determined what evidence the special prosecutor’s office will be able to use.
During the 17-year presence of international missions in Kosovo, information has been gathered in almost 1,000 cases, although many of these never reached the trial stage. The International Criminal Tribunal for the Former Yugoslavia, ICTY also worked on a lot of cases related to the Kosovo war.
According to Kosovo’s Law on the Specialist Chambers, which enabled the court to be set up, “evidence collected in criminal proceedings or investigations within the subject matter jurisdiction of the Specialist Chambers prior to its establishment by any national or international law enforcement or criminal investigation authority or agency including the Kosovo State Prosecutor, any police authority in Kosovo, the ICTY, EULEX Kosovo or by the SITF, may be admissible before the Specialist Chambers”.
All these institutions have thousands of pages of testimonies, reports, orders and other documents that could be used by the specialist prosecutor, but what can be used in court will only be made clear once its rules on procedure and evidence are adopted after adopted after its judges and president are elected.
“I am sure there will be a mixture of what we can and we cannot use; in Bosnia for example, we had to put live witnesses on the stand, but established facts, courts could accept,” Schwendiman said.
Although many have questioned whether it is actually possible to prove the crimes committed by a guerrilla force like the KLA, due to the lack of written orders, Schwendiman expressed confidence, saying that the SITF’s chief investigator Clint Williamson left him a solid base of evidence to build upon.
“I wouldn’t take the job if Clint and I hadn’t talked what Clint thought was accomplished by July 2014 [when the SITF published its report]. I have been working on this for a year and half as the lead investigator and I wouldn’t have taken the job as the chief prosecutor that I didn’t believe there is something to take on the next step, which is prosecution,” he said.
But Schwendiman is aware he will have to heavily rely on witnesses and their statements. Ensuring safety for protected witnesses testifying about the crimes committed during the Kosovo war has been a problem for all the institutions that have been involved in such prosecutions in the past – the ICTY, the UN Mission in Kosovo, UNMIK, EULEX and domestic courts in Serbia and Kosovo.
“Protecting those who we estimate are vulnerable or who become vulnerable because of participation in this process is absolutely vital. I have the authority to do that, I got assurances of the assistance to help me do that, and I can’t and I won’t talk about specific teams or methods that we are now employing or will employ to get that done,” he explained.
Numerous witnesses have changed their testimonies during previous trials of KLA members in Kosovo and The Hague.
“It is a big concern to us, it is a big challenge for us, and it something we take very very seriously and that we dedicated a lot of time and effort to do it. We have to maintain the trust and confidence that people have in us and we have to protect those vulnerable to the extent that we don’t lose that trust,” Schwendiman responded.
Intimidation in the community
Schwendiman first encountered witness intimidation while investigating crimes committed during the Bosnian war.
“In Bosnia and Herzegovina it was not common but it did happen, people lost families and support, and there were perpetrators that lived in their neighbourhoods and I am asking them to come to testify; even though their names have been redacted in the indictment, I perfectly understood when they came and said no,” Schwendiman recalls.
He recalled a situation when a woman refused to go into the courtroom because of social pressure to remain silent and not cause any potential problems.
“She was not discouraged by the community of the perpetrator, but her own community, who told her, ‘You don’t need to that, you know it just brings tensions to us, why do you want to talk?’” he explained.
“But we managed to convince her by frequent visits, by talking with her through the issues, by being sensitive to things, talking to her son who could reason with her that there was support for her. The most important thing is making sure that people have trust in us,” he added.
He said that his experience in Bosnia had enabled him to deal with such situations with a deeper level of understanding.
“The importance is to be sensitive with things you have no experience with and not pretending that you do. I cannot say someone I understand what you went through – I don’t understand, I have no idea,” he explained.
“You are talking with people who have lived with the most horrible things you can imagine, that cry themselves dry, there is no real hope left, they don’t live where they lived forever, they have been displaced… You’ve got all this disappointment, hatred inside of them, that makes it hard to establish a relationship, and that comes with experience,” he added.
As in Bosnia, he hopes that his investigations will help the search for the remains of around 1,660 people still missing from the Kosovo conflict.
“I know how to do it and I have done it and I am absolutely committed to do it as much as I can to locate, recover and get people back to their families,” he said.
He is however aware of the big expectations that some people have of him, especially in Serbia, where the new court is seen as a unique chance to get justice for Serb victims.
“I have great empathy for that, I can only do what I can do and be realistic and truthful and transparent as possible,” he said.
“Managing expectations is terribly important because that will affect whether or not the outcomes are perceived as legitimate and that is a big goal for me, so I will do everything I can to help people understand what the expectations should be and then they can hold me to account if I meet or don’t meet those expectations,” he added.
However, as with other international courts, some level of disappointment is inevitable, he admitted.
“There will always be people who are disappointed, I don’t have any doubt about that,” he said.
Although 17 years have passed since the end of Kosovo war, Schwendiman believes that bringing the perpetrators of the crimes committed there to justice remains important for the future of the country.
“No matter what was going on before, there is still a lingering question about things that happened during the war and these things are affecting the environment, affecting people personally,” he argued.
Holding the perpetrators of such abuses accountable, he concluded, will “help people living with the past, not in the past”.