Kosovo ICO Head Pieter Feith – “The Rule of Law and the recent past”

Pieter.FeithPRISTINA, Kosovo – Opinion Piece by Pieter Feith. The Rule of Law and the recent past: "In the last couple of months we have witnessed a debate challenging the arrests of former KLA members in the context of war crimes investigation. In some quarters, it was alleged that these arrests would put the legitimacy of the KLA’s liberation war into question. Many claim that the main focus should be on combating corruption and organized crime rather than on alleged war crimes. The process and indeed requirement of coming to terms with the recent past in Kosovo can be difficult and painful.

But I firmly believe that it is necessary and it will help enhance the rule of law and regional co-operation. Avoiding dealing with the past, meanwhile, might have serious consequences for the rule of law and for the further development of Kosovo as a sustainable state. I feel strongly about this – Western Europe, including my own country, has had to go through similar painful transitions – and I would like to share with you some of my thoughts on this subject.

The Comprehensive Status Proposal (CSP) calls for the promotion of reconciliation among communities and, within this context, the establishment of a comprehensive approach for dealing with Kosovo’s past. But what does this mean in practice?

Dealing with the past is fundamentally a process during which a society attempts to come to terms with a legacy of violence and suffering. But which past are we speaking about – the Communist time, the whole Milosevic era or the conflict at the end of the 1990s? The ‘Ahtisaari Plan’ does not provide a clear definition, but we have to bear in mind that this is a document dealing with Kosovo’s transition from the recent armed conflict to an independent state.

Dealing with Kosovo’s past is necessary for achieving sustainable peace. Every family in Kosovo, from every community, has its story of terrible suffering. These stories must be heard, truths established, and justice done. If there is a shared acknowledgement of what has been done, then there can be a shared expectation that we will avoid a repetition of it in the future. There are different avenues that can contribute towards this: institutional reform, truth-seeking, judicial proceedings and reparations of one form or another. But also it is important that individual responsibility is identified and accepted – otherwise a vague collective responsibility will continue to weigh on the nation as a whole, thereby stifling future development.

The goal of dealing with the past is to ensure accountability, serve justice and achieve reconciliation, and to allow everyone, from all communities involved in a conflict, to move forwards with a common sense that their voices have been heard. I have seen the importance of this process myself, elsewhere in the Balkans and most recently helping to bring to an end to decades of conflict in Indonesia.

Kosovo is in the midst of this. Some actions have already been undertaken, such as the reform of the police and judiciary. Other processes such as truth-seeking have just been initiated, for example with the One Million Signature campaign for the proposed Regional Commission (RECOM) tasked with establishing the facts about all victims of war crimes committed on the territory of the Former Yugoslavia in the period from 1991-2001.

What is the role of the law in all of this? We should be aware that the root causes of human rights abuses in many violent conflicts lay in a vacuum of the law or in its unequal application by state institutions at the time when those abuses occurred. After the conflict much work is to be done to remedy the injustices. All state institutions themselves have to be held accountable. They have to obey the law. The principle of equality means that the law is equally enforced irrespective of ethnicity, religion, origin, family background, business ties, political party affiliation, personal status, power relationships and so forth. Politicians must accept this so that citizens can believe in it.

To put it differently: the rule of law does not allow us to pick and choose which crimes we want to prosecute. The rule of law requires that all crimes described by law are investigated and prosecuted and, if guilt is established, those individuals will have to answer for their acts. Investigation of organized crime and corruption is not more important or more desirable than investigation of war crimes. All types of crimes need to be treated equally if we are to achieve true rule of law and justice. Indeed, one can argue that organized crime and corruption in the post-conflict situation are in many respects a result of the failure to ensure accountability for war crimes and crimes committed before the conflict.

Does the prosecution of former KLA fighters undermine the legitimacy of and the pride many rightfully feel for the KLA war of liberation? I believe not. I rather believe that it is the prevention of prosecution of individual war crimes that will undermine the historic legacy of that war. Would the people who fought for the righteousness of their cause allow it to be sacrificed by letting individuals who misused their powers and committed crimes remain unpunished? I think that Kosovars are rightly starting to take a more dispassionate view of the liberation war. A more honest history is a stronger history, and an independent Kosovo that is multi-ethnic, democratic, peace-loving and a homeland to all of its citizens, something that all Kosovars have pledged themselves to in the Constitution, is the best validation of the suffering and bravery of so many people in this country, and a worthy source of pride.

Just recently the World Bank highlighted in its 2011 Report the importance of national leaders signaling a break with the past, in order to restore confidence in state institutions. This is essential for development in post-war societies. A break with the past means that the state institutions have actually developed a different mentality – a mentality that starts with the rule of law, and not personal or group interests. The World Bank’s requirements illustrate very well the link between dealing with the past, the promotion of the rule of law and economic development in a post-war state. Any investor in a country expects that there is a legal order which is predictable, enforceable and efficient and which allows an economy to flourish. That means no personal favours, no political bias. That means that Kosovo has to show that it has dealt with its past, has overcome its old ways, has secured the rule of law and has established accountability in all respects.

All of this will bring justice and foster trust in institutions. And as Kosovo embarks upon a dialogue with Serbia, the moment has come for a broad and comprehensive discussion among society and the institutions about the past, its significance, what Kosovars can be proud of and what went wrong. My organization, the ICO, stands ready to help bring this about. For it is my hope that, having come to terms with the violence of the past, Kosovars and Serbs will find it easier to extend the hand of friendship, to move on and to find ways to contribute to a shared neighbourhood working together towards a common European future."

The Dutchman Pieter Feith until April was the EU Special Representative to Kosovo. He still serves as the Kosovo International Civilian Representative (ICR) backed by the International Steering Group for Kosovo (ISG), which is composed of 24 countries from Europe (plus USA), who all recognized the Republic of Kosovo as an independent state.

The English version of this article was adopted from Newsmonitors.org.

KON / NK

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