Genocide charges against Serbia to be filed by Kosovo friendly country

The Scorpion paramilitary unit is the link between crimes of genocide planned by the same people and carried out by the same organs and individuals in Croatia and in Bosnia-Herzegovina and Kosovo.

Nevenka Tromp worked for years as an associate of the International Criminal Tribunal for the Former Yugoslavia in The Hague and wrote the comparative historical study Prosecuting Slobodan Milošević: The Unfinished Trial. Today she is a professor at the University of Amsterdam (Al Jazeera)

The announcement that Kosovo will sue Serbia for genocide has caused a multitude of conflicting reactions, giving rise to many controversies and questions. The loudest, as usual, was Serbia’s president Aleksandar Vučić. In a guest appearance on TV Pink, he explained that “charges of genocide against the state of Serbia, which still exists legally in Kosovo and Metohia today, can only be made through another country, Albania. That would de facto mean the beginning of a union with Albania. I warn you and ask that you do not do this”.

There are many issues regarding how and in what way Kosovo can legally bring genocide charges, and the general unfamiliarity with legal norms and regulations in this matter has helped to create and spread controversies and confusing narratives.

This is why we turned to Nevenka Tromp for help since we consider her the most qualified individual to explain whether there are grounds for this type of lawsuit. Nevenka Tromp was an associate of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague for years and wrote the comparative historical study Prosecuting Slobodan Milošević: The Unfinished Trial. Today she is a professor at the University of Amsterdam.


What was your first reaction to the news that Kosovo intends to sue Serbia for genocide? I ask this since you worked for many years as an associate of the ICTY in The Hague and worked on the Prosecution team in the case against Slobodan Milošević.


- This is not an unexpected move by the government of Kosovo. Before this government came into power, the former president of Kosovo Hashim Thaci openly spoke about it. Genocide is the only crime that can be charged against both individuals and states according to the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide. Regarding conflicts in Kosovo, neither Milošević nor any other of the defendants tried for crimes in Kosovo from 1998-1999 were accused of the crime of genocide at either the ICTY or any other court. Of the three wartime conflicts in Croatia, Bosnia-Herzegovina, and Kosovo, only crimes in Bosnia-Herzegovina were qualified as crimes of genocide in the indictments.


Before which court could Kosovo raise an indictment against Serbia for genocide?


- Individuals accused of the crime of genocide are tried at criminal courts – national or international. The ICTY was such an international criminal court, created by the UN as a provisional court. Those convicted of crimes were given prison sentences. Today there is a permanent criminal court – also located in The Hague, called the Internal Criminal Court (ICC). As of 2003, it has been possible to bring charges for war crimes, crimes against humanity, grave breaches of the laws and customs of war, and genocide. Among these four groups of international crimes, genocide is the only one that can be brought against both individuals and states. States can be tried for genocide in lawsuits before only one court in the world, and that is the UN’s International Court of Justice (ICJ). This means that only UN member states can be parties in ICJ trials. To date, no country has yet been found responsible for planning and carrying out genocide.


Since Kosovo is not a UN member state, does it have the legal legitimacy to raise such an indictment?


- Kosovo is not a member of the United Nations and will not become one shortly. The legal procedure to initiate charges of genocide can take different forms. One is for a third country that is a UN member state to sue Serbia in the name of Kosovo. The Gambia did this in the name of the Rohingya people being persecuted by the state of Myanmar. Kosovo might take this route if it finds a friendly country to assume responsibility.

As of 2008, Kosovo is de facto a state and has been recognized by 98 other UN member states. Serbia has been actively lobbying to stop the process of bilateral recognition. Under the influence of Serbia’s diplomatic activities, some countries that recognized Kosovo started withdrawing their recognition as of 2011. Serbia used Dick Marty’s Council of Europe report for this purpose. Based on some indications and rumors, the report presents fantastic allegations about the removal and sale of human organs by Kosovo Liberation Army (KLA) leaders during and after the 1999 war. The report raises serious questions about the previously deep-seated and generally accepted image of the Serbian side as the main perpetrator in the war in Kosovo, with the Kosovo Albanians being the victims of Serbian violence. Attention thus shifted from the Serbian side’s crimes and turned to crimes allegedly committed by the KLA.

This relativization led to public concern in Kosovo, and as of2016 it was said that Kosovo had not devoted enough attention to the crime of genocide since Kosovo, just like Bosnia-Herzegovina, relied too heavily on international courts that ultimately did not make a clear distinction between the “perpetrators” and the “victims”. Political leaders realize that no one in Serbia has been or will be accused of the crime of genocide and that Serbia’s launching such sensationalistic insinuations is intended to equalize the blame since it turns out that even if the Serbs might have committed some crimes in Kosovo, the Kosovo Albanians were at the forefront with their brutality.


Why is the KLA presented as the organizer of “organ trafficking”?


- Presenting the Kosovo Liberation Army as the organizer of “organ trafficking” was intended to demonize the Kosovo Albanians in the public eye and over time morally and politically rehabilitate Serbia for the crimes committed by Serbian security forces in Kosovo. This was certainly necessary for Serbia to put the demarcation between Serbia and Kosovo on the agenda of negotiations on Kosovo’s status being held via Brussels. Serbia’s relativization of Serbian crimes in Kosovo is a long-term process that over time has reached surprising results. According to Marty’s report, establishing a special court in The Hague for Kosovo where only Kosovo Albanians will be tried, even if it does not succeed in sentencing any of the accused, will help by its very existence to leave a trace in the “court of public opinion” that Kosovo Albanians also committed crimes.

In the same vein, the very fact that the first four indictments have been raised and include Thaci, the former president of Kosovo, has put Kosovo in a defensive position at negotiations on Kosovo’s status. I feel the announcement that Kosovo’s state authorities will bring charges of genocide should be viewed in this context. Merely announcing the lawsuit puts the Serbian side in a defensive position in negotiations on Kosovo’s status. President Vjosa Osmani and Prime Minister Albin Kurti have made it clear that they will not pursue the same policy regarding “correcting the border” between Kosovo and Serbia supported by President Thaci back in 2018. They will not agree to a division of Kosovo as a precondition to Serbia’s recognition of Kosovo as a state.

So the announcement of suing Serbia for genocide has very concrete political implications for negotiations between these two states and should strengthen Kosovo’s negotiating position about not changing the border. This also means going back to the 1990s and correcting the compromising historical narrative whereby Kosovo Albanians were perpetrators of the same or even more brutal crimes during the conflicts in Kosovo.


To what extent could evidence from Slobodan Milošević’s trial be “used” in Kosovo’s charges of genocide?


- Let us not forget that Yugoslavia’s identity crisis started with the Serbian question in Kosovo and that the final disintegration of Yugoslavia was marked by the 1999 war in Kosovo and the creation of the state of Kosovo in 2008. We should also not forget that the first time Milošević was accused by the ICTY of crimes in Kosovo was in May 1999 while the war still raging there. That indictment stressed the expulsion of Albanian citizens across the border into Albania and Macedonia and the confiscation of all personal documents at the border so they could not go back. The defense maintained that they fled across the border seeking shelter from NATO bombs. This line of defense was invalidated by one of the judges who asked, “Then why didn’t they flee across the border into Serbia?” It turned out that Serbian forces would first surround a village and then leave only one transportation corridor free that would lead them in an organized fashion toward border crossings with Albania and Macedonia. Furthermore, a dozen witnesses testified that Milošević and the entire Serbian and FRY state leadership knew perfectly well that there was widespread killing of civilians and they knew where the mass graves were located.


In May when it became clear to Milošević that NATO would not stop bombing until Serbia capitulated, a meeting was called and it was decided that the bodies of killed civilians should be removed from the graves and taken by refrigerator truck to Serbia where they would be reburied on land controlled by Serbia’s Ministry of the Interior (MUP), such as Batajnica. So if those people died in legitimate warfare between the two armies, why move them to Serbia? Needless to say, the autopsies showed that they were civilians, including the elderly, women, and children. What is greater proof admitting one’s criminal behavior than hiding traces of the crimes and evidence that crimes were perpetrated?


What was Slobodan Milošević’s view of Kosovo Albanians and Albanians in general as an ethnic group?


- If I had to single out two very powerful demonstrations of criminal behavior in Kosovo that came to light at Milošević’s trial, I would first note his state of awareness concerning his attitude toward Kosovo Albanians. When he spoke he never used racist or hate speech toward Croats or Bosniaks, for example, he never used the dehumanizing term “balija” (derogatory for Muslim), etc. He only used the fierce language of intolerance toward Kosovo Albanians. In his reply to a letter from Hubert Vedrine and Robin Cook – foreign ministers of France and Great Britain at the time – in which they said there was still a chance to prevent NATO’s intervention, all he had to do was accept the peace agreement from Rambouillet, Milošević said that it was out of the question and that the West, i.e. NATO, had sided with “scoundrels without a history” and against the great European state of Serbia.


This racism in Serbia at the highest state level reflected an internalized and institutionalized racism aimed at Kosovo Albanians who are called Šiptar in official documents. The doctoral dissertation of General Božidar Delić, an active high-level officer of the Yugoslav Army in the Priština Corps in the key years of the war in Kosovo, is riddled with racist concepts. The Prosecutor’s Office got hold of it and when he testified as a defense witness, we cited its racist parts and of course he had no explanation for it and was only interested in how it had come into the hands of the Prosecutor’s Office. It is this humiliating and dehumanizing language that makes the Kosovo Albanians a “protected group” as an indispensable element in bringing charges for genocide and proving it.


That group can be religious, racial, ethnic, or national. Then it must be shown whether the criminal intent was to destroy “all or part of the group”. Various political official documents – such as Šešelj’s 1990 Serbian Radical Party Manifesto – speak of the plan to expel around one-third of the Albanians from Kosovo. Let us not forget that during the NATO intervention Šešelj was one of the vice presidents of the Serbian government. In his Ušće speech on the eve of NATO intervention in 1999, he said that if NATO attacked Serbia, the Serbs would suffer, but there would be no more Albanians left in Kosovo.


Do documents exist showing Serbia’s intent to commit genocide against Kosovo Albanians and if they do, are they accessible to the general public?


- One extremely important document was the war diary of general Obrad Stevanović, head of Serbia’s MUP (police). It actually shows the criminal side of Serbia’s policy: for example, he describes a meeting in May 1999 with Milošević when it was clear to them that they were losing the war. The entire elite from the government, Yugoslav Army, and MUP discussed how the bodies should be removed, since if there were no bodies then there were no crimes. It is also indicative that in his diary Stevanović mentions issuing “people from Šid” uniforms from the Special Police Units (PJP) that belonged to MUP Serbia’s Public Security Department. This refers to that same Scorpion unit: after the November 1995 Erdut Agreement that reintegrated part of occupied Croatia back to Croatia, its members moved from Eastern Croatia to Vojvodina, i.e. the border town of Šid.

These are the same men who, under Slobodan Milošević’s command, in Godinjska Bara liquidated with a bullet to the back of the head six boys and men captured after the fall of Srebrenica. Serbia has always denied any links with the Scorpions, but not only did it tolerate them in Šid without any investigations, but it also recruited them again as a unit in Kosovo in April 1999.

On their very first day in Kosovo, they killed a family of Kosovo Albanians in Podujevo. They were returned to Serbia and then three weeks later went back and were issued PJP uniforms by General Stevanović. These same Scorpions went back and committed crimes in the Gnilani region. In this way, the Scorpions were the link between crimes of genocide planned by the same people and carried out by the same organs and individuals in Croatia, and in Bosnia-Herzegovina and Kosovo. The only difference is that they were qualified as crimes of genocide in Bosnia-Herzegovina.


Will the verdict of genocide committed in Srebrenica have an impact on the potential trial of Kosovo’s charges against Serbia for genocide?


- One of the ICTY’s missed chances in the indictments and trials of the Slobodan Milošević case was that after three indictments were raised in opposite chronological order, the result was trials taking place in opposite chronological order: evidence was first submitted on crimes in Kosovo, followed by the indictment for Croatia and in the end for Bosnia-Herzegovina. In May 1999, Milošević was first accused of crimes in Kosovo and only two years later for crimes in Croatia and Bosnia-Herzegovina, although these crimes had taken place from three to seven years earlier.

If we bear in mind that the criminal intent came about even before war broke out – all three indictments are part of a single political transaction in which genocidal intent was part of the “criminal intent” of the individuals who planned everything and only carried it out when they took over power in Serbia, created the Federal Republic of Yugoslavia (FRY) and had access to state-level infrastructure that enabled the plan to be carried out using state institutions of the army, police and various “reserve” and “volunteer” formations. All of this took place within a legal and institutional framework where para-state formations played a large part in criminal operations. That is where he was accused of the crime of genocide.

If you look at the individuals who were indicted or cited as members of the Joint Criminal Enterprise (JCE) in indictments for Croatia, Bosnia-Herzegovina, and Kosovo, we see that a group of the same names appears, along with ever-present Miloševićas the paternalistic leader of post-Yugoslavia Serbian identity. So these individuals’ readiness and acceptance to be part of that machinery for ten years cannot be a coincidence. The 1995 verdict of genocide does not have to mean that this group suddenly – in July 1995 – had short-term genocidal intent that resulted in the Srebrenica genocide.

Had the indictments against Milošević been raised in chronological order, with the first being raised for Croatia, then for Bosnia-Herzegovina, and Kosovo only at the end, and had the trials taken place in that order, then the crimes committed in Croatia would include genocide when the Serbian side started ethnically splitting up and homogenizing the occupied area that was called RSK. And the crime of genocide would have likewise been included for crimes committed in Kosovo.


Why do you think so?

- Why do I think so? Because if a criminal has criminal intent to commit genocide against the Bosniak Muslims in 1992 and 1995, why wouldn’t that same criminal have the same intent in 1999 when trying to keep Kosovo within Serbia’s borders, even though Kosovo Albanians comprise more than 80 percent of Kosovo’s population? Because as president of Serbia and after as president of FRY, Milošević did not plan and order the execution of crimes from time to time, as needed.

The Serbian plan of creating a post-Yugoslavia Serbia had been drawn up even before the wars began. The criminal nature of that plan came to light in the wars in Croatia, Bosnia-Herzegovina, and Kosovo, where the non-Serbian population suffered the most in areas that Belgrade laid claim to. That criminal plan showed its true face first in Kosovo in the early 1990s when Belgrade introduced an apartheid regime there through discriminatory laws so that the Serbian minority could rule over the Albanian majority. In 1998, the conflict escalated and NATO’s intervention came in 1999.

Serbia used resistance to the NATO attacks as a pretext to start executing an already-planned military campaign intended to change the ethnic composition in Kosovo by eliminating one-third of the Albanian population. This was done with widespread expulsions, widespread executions, and the destruction of cultural and other goods.


In your opinion, which period would be included in the lawsuit, and could Kosovo sue Serbia, among other things, for carrying out ethnic apartheid from 1990 to 1999 and the NATO intervention?


- It is very important to stress the fact that states can be sued as states only for the crime of genocide since the 1973 UN Convention on the Suppression and Punishment of the Crime of Apartheid obliges them to prevent and punish the crime of apartheid. Nevertheless, in the almost 50 years that this Convention has existed, it has never been used against a state. All the legal qualifications included in the crime of apartheid are treated as part of the broad spectrum of crimes against humanity and as such are applied in trials against individuals. The permanent criminal court (ICC) included it in its Statute, but there has still been no concrete application for that form of crime. The Convention has never been applied against a state. Should Kosovo’s legal team get involved in this experiment?

Bearing in mind that the crime of apartheid takes place within the borders of a state, Kosovo is no longer part of the state of Serbia, and going back to that former paradigm could be risky. At the same time, this approach could have a boomerang effect, since it might spur Belgrade to mobilize the Serbian minority in Kosovo to reply likewise and take that same legal recourse, charging Kosovo state institutions with ethnically-based repression.


Little is known in Bosnia-Herzegovina about Kosovo’s lawsuit. Do you know the specific acts that Serbia would be accused of planning, committing, or aiding in the commission of genocide against Kosovo Albanians – Kosovars?

- It is true that very little is known in Bosnia-Herzegovina about Kosovo’s legal action. I would add that very little is known and there is very little interest outside of Kosovo and Serbia about the war in Kosovo and the current political turmoil in Kosovo. Bosnia-Herzegovina has not recognized Kosovo and has no bilateral relations with Kosovo. This certainly influences the flow of information and cooperation. This is at the same time worrisome since Bosnia-Herzegovina and Kosovo share a similar fate after the disintegration of Yugoslavia because Serbia still questions its territorial integrity. If or when Kosovo finds a legal way to raise these issues through a submission to the ICJ, the time period will certainly be from 1990 to 1999.

But concerning proof of criminal intent, that will require a history-making approach, since Milošević was not the first to come up with Greater Serbia ideology or racism toward Kosovo Albanians. These both existed before he came to power – he only used them skillfully, giving them a new political reality at the time of Yugoslavia’s disintegration and when the borders of post-Yugoslavia Serbia were being drawn from Belgrade.


What will happen to the process of establishing justice if, hypothetically, the charges “fail” and are dropped for political, administrative, or bureaucratic reasons or, on the other hand, if they are accepted and then Serbia is acquitted?


- Every submission that is accepted by the ICJ is a great success regardless of the outcome, the submission itself with the entire reconstruction of genocide. That is when Kosovo will have the opportunity to record what was left unrecorded at other authoritative courts, such as the ICTY. The ICJ is not a criminal court with gathering and presenting evidence. This court relies solely on the submissions of the parties in the lawsuit. In the case of Bosnia-Herzegovina’s charges against Serbia for genocide at the ICJ, the judges relied on the evidence, decisions, and judgments of the ICTY. Even though genocide in Srebrenica was proven at the ICTY, the ICJ judgment did not find that Serbia as a state had planned and carried out genocide in Bosnia-Herzegovina. For Kosovo, there are no indictments and thus no judgments regarding genocide taking place there. But unlike Bosnia-Herzegovina, Kosovo was part of Serbia’s territory, thus Serbia had a direct and great responsibility.

At the same time, let us not forget that Kosovo is currently using the rhetoric of accusations of genocide in a specific political context and this very fact might have an impact on Serbia in negotiations on Kosovo’s status. This narrative reminds the world that every territorial concession to Serbia is historically and politically unjust compared to the crimes committed there by Serbia.