Still, on the eve of the trial, Kosovar Albanians expected Milošević to be found guilty, and they expected their witnesses to be treated with dignity.Kosovar Albanians’ Reactions to the Milošević Trial
Indiana University*
How did Kosovar Albanians respond to the Kosovo phase of the Milošević trial, from February to September 2002? Adopting methods and perspectives of linguistic anthropology, and using Kosovar Albanian newspapers as principal sources, this chapter contextualizes and analyzes the major concerns of Kosovar Albanians as presented in their commentaries, editorials, and news reports over the course of the Kosovo phase. At the same time, we must be attentive to silences: A troubling aspect of coverage of the trial in Kosovo was the relative lack of attention to many witnesses. Specifically, the supposed time-saving strategies adopted by the Tribunal resulted in the elimination of oral testimony by significant witnesses, producing instead multiply translated witness statements, summarized by attorneys, that were far removed from their original sense and context. By foregrounding the testimony of Albanian Kosovars who were considered newsworthy in Kosovo—and others who were not—the chapter explores how the Milošević trial advanced a model of justice unresponsive to, even destructive of, opportunities for reconciliation.
All organs of the court should keep in mind the importance of making the proceedings meaningful to the communities most affected by the crimes.1
ANTONIO CASSESSE
As part of its Outreach Program, the ICTY donated Judicial Reports, law journals, and books to the Law Faculty of Prishtina University in the summer of 2010, a fortnight after the Tribunal had called for the rearrest of former KLA leader and “former prime minister” Ramush Haradinaj, who had already been tried by the Tribunal and previously acquitted.2 Perhaps the donation of materials was an effort to affect opinion in Kosovo3 regarding the Tribunal, or perhaps the Tribunal was merely cleaning house as its mandate was drawing to a close. The stated purpose of the donation was “to increase understanding of the international criminal justice system and to cement the legacy of the Tribunal in the region of the former Yugoslavia.”4 So, what will that legacy be? More historical distance is required to address this fully, but certainly central to that legacy will be the trial of Milošević, as it was the initial and most prominent work of the Tribunal related to Kosovo. To begin to understand the legacy of the Tribunal in Kosovo, we must examine the responses of Kosovar Albanians to the Milošević trial.
This chapter considers how Kosovar Albanians responded to the trial’s Kosovo phase, from February 2002 to September 2002. The main sources are print media, principally Kosovar Albanian newspapers,* understood through the methods and perspectives of linguistic anthropology. The chapter contextualizes and analyzes the major concerns Kosovar Albanians presented in commentaries, editorials, and reportage over the course of the Kosovo phase. At the same time, an intriguing aspect of the media coverage of the trial in Kosovo was the relative lack of attention to many witnesses whose testimony one might have expected to be of great interest.
There are four parts to this chapter. The first presents initial reactions of Kosovar Albanians to the trial, including reactions from ordinary people whom reporters interviewed as well as commentary in which Kosovar editors responded to opening statements. The second part focuses on coverage of testimony by the two figures that drew the most press attention in Kosovo—Mahmut Bakalli early in the trial and later President Ibrahim Rugova—and what this tells us about the Kosovar media’s sense of what mattered to Kosovar Albanians during the trial. Third, it considers the question of media silence around what might have been expected to be powerful testimony by other Kosovar Albanians who were direct witnesses to particular atrocities. To look at this in more depth, the chapter analyzes one day of testimony involving the Izbica (Izbicë) massacre—an event that Serbian media had asserted had never occurred. Analysis of the linguistic bases of the sole survivor’s statements and testimony suggests how tenuous the evidentiary basis introduced into the trial record can be. The fourth section moves back to a larger frame concerning general commentary on the trial, showing how Kosovar Albanians felt abused by the trial. It suggests that the ICTY has much to learn from people of the region—that cultural and historical knowledge would have increased its effectiveness. One of the core conclusions that should be drawn from the study of Kosovar Albanians’ reactions is the need for live testimony in court rather than summary written statements read by attorneys.
In analyzing the responses of Kosovar Albanians, their particular circumstances and expectations in the months preceding the trial should be kept in mind. In 2002, Kosovo remained politically fragile, its status uncertain both at home and abroad. Elections had been held in November 2001, but because of the split results a coalition government was formed only at the end of February 2002.* The recent fighting in neighboring Macedonia, where Kosovar Albanians gave some support to Macedonia’s Albanians, had contributed to lowered support for Kosovo in the international community.5 Further, after the 9/11 attack, the attention of the United States—Kosovo’s principal international supporter—had shifted away from the Balkans.†
This was also a time of growing mistrust of the international community in Kosovo. By 2002, the United Nations Interim Administration Mission in Kosovo (UNMIK) was entering what became known as the era of “stagnation and confrontation.”6 Attitudes toward UNMIK deteriorated further during the trial,‡ but even before this, Kosovar Albanians did not hold a high opinion of the UN more generally. They had watched how the UN had operated in Bosnia during the 1990s, and its ineptness had given support to Rugova’s nonviolent movement7 despite continued provocation from Serbian authorities. Kosovar Albanians knew that it was NATO and the United States, not the UN, that had supported them in their struggle with Serbia.§
The fact that the ICTY had been established by the UN did not improve its standing in Kosovo, and actions taken by the ICTY had not improved its image among Kosovars. The initial indictment of Milošević had been popular, but Del Ponte and international organizations cooperating with the ICTY contributed to Kosovar Albanians’ continuing mistrust when they ordered the arrest of former KLA leaders for alleged crimes against Albanian collaborators. Still, on the eve of the trial, Kosovar Albanians expected Milošević to be found guilty, and they expected their witnesses to be treated with dignity.
Before the trial actually opened, while pretrial preparations were ongoing, one of the most intriguing reactions among Kosovar Albanians was the reluctance of some to testify.** It was reported that only 60 percent of the 150 Kosovars who had earlier provided evidence had agreed to testify in person.8 One woman, whose husband, son, and daughter had been killed in the Suva Reka (Suharekë) restaurant killing in March 1999, had survived by jumping from a truck loaded with victims that was headed to Serbia. The bodies of her family members—and those of the other victims, 48 civilians in all—were found two years later in a mass grave in Batajnica, near Belgrade. Yet commenting in Koha Ditore at the opening of the trial, she suggested that there was little point in testifying:
There’s no reason to [go to The Hague]…. There are so many like Milosevic. He is not the only one to be blamed…. Where are his henchmen who fired on us? They are free.9
This woman’s attitude was hardly indifference, given her history, but rather alienation born of concern that Milošević’s trial would not be the only one. This is typical: The question of whether the Milošević trial would lead to other trials was crucial for Kosovar Albanians. Del Ponte had been clear that the Tribunal had neither the mandate nor the resources to be the main investigatory and prosecutorial agency in Kosovo, and that the vast majority of crimes committed during the armed conflict would have to be dealt with by the local Kosovar police and judiciary, under the mandate of UNMIK.10 It would not be until 2006 that the other Serbian government and military leaders of the war in Kosovo—Šainović, Ojdanić, Pavković, Lazarević, Lukić, and Milutinović—would stand trial at the ICTY.11 As for the internationally directed courts in Kosovo, by the time the Milošević trial began, three years after the war had ended, they had tried only 15 war crimes suspects.12 Serbia tried its first soldier for war crimes in Kosovo in July 2002.13
Thus, at the time his trial opened, many Kosovars were angry that Milošević was the only leading figure to face justice. Hysni Berisha, of the Victims Identification Commission, reflected this sentiment, noting just before the beginning of the trial that “[t]he Milošević case should lead to the trial of all those who committed crimes in Kosovo.”14 Meanwhile Kosovars watched the pretrial sessions of the Milošević case. One whose home was burned down by the Serbs and 11 members of whose village had been killed, remarked with disgust, “[t]hat murderer is enjoying a comfortable cell and makes fun of the court. If they won’t do to him what he did to us, they might as well set him free.”15
The opening days of the Milošević trial were covered live in Kosovo by major television and radio stations, and by many accounts, most of the population watched or listened;16 several major Kosovar newspapers termed it a “historic event.”17 Koha Ditore published an entire supplement with the headline “One chief murderer, three wars, hundreds of thousands of victims.”18 Zëri, another important Kosovar newspaper, ran a headline: “Cool-headed criminal listens to indictment.”19
In Pristina people watched in public places, pored over the Prosecution’s opening statements, and reportedly went silent when Milošević appeared.20 Some tried to downplay the trial: One 28-year-old student, whose education had been interrupted in the 1990s when Albanians had been forbidden to enter high schools or the university in Kosovo, remarked, “He’s history. He’s getting what he deserves. I wasted so many years because of him and I don’t want to waste this day[.]”21
But, as Krasniqi also points out, most watched the proceedings with interest, and some in venues with special meaning. One man who watched from the main train station café explained, “It was from this train station that I was sent by his forces to become a refugee.”22 In the village of Reçak, site of the January 1999 Račak massacre that was crucial to involving the ICTY and the international community in Kosovo,* people watched the trial together from the mosque. One villager announced, “Finally the main criminal, the butcher of the Balkans, is brought to court. He should enter into prison and stay there until he dies. But no sentence is sufficient for the suffering he brought on the people of Kosova.”23 The other villagers were pleased that Milošević would be brought to justice, but noted that he was responsible for many other crimes as well.24
The very public aspects of how the trial was watched by Kosovar Albanians contrasted with the more subdued reception in Serb areas. Some Kosovo Serbs watched from the last Serb restaurant in Kosovo Polje—the town where Milošević had begun his rise to power with his 1987 speech, and near Gazimestan, site of his 1989 speech—where there were still posters of Milošević on the wall, saying they said they felt closest to him there.25 Although close to eighty thousand Serbs had left Kosovo after the war, those who remained lived in enclaves such as Gračanica or in the north. Still they did not criticize Milošević. One noted proudly, “The people were very satisfied with what they heard from him. Whatever he promised, he fulfilled.” Another concluded, “He meant well but he went the wrong way about it.”26
Serbian newspapers stressed that only Milošević was on trial. “He is on trial, not the nation,” the front page headline in the mass-circulation Večernje novosti said, quoting Del Ponte’s statement that Milošević was being prosecuted “on the basis of his individual criminal responsibility” and that there was no accusation of collective guilt.27 The Albanian newspaper from Tirana, Koha Jonë, elaborated on this, noting that Del Ponte was seeking to reassure Serbs who feared that his trial could turn into the trial of the entire Serb nation.28
Thus the question of whether Milošević’s trial alone could adequately address responsibility for what had happened in Kosovo had already arisen when it became clear that Milošević would be tried alone. This theme was raised again with opening statements by Carla del Ponte and Dirk Ryneveld, in which the Prosecution’s planned approach became clearer, but as with so much of the trial, these statements—with their evocation of the medieval era and Nuremberg—did not speak to the history of Kosovo in ways Kosovar Albanians could appreciate.†
Veton Surroi, founder and editor of Koha Ditore, took up the larger question of societal guilt and responsibility in a commentary on Del Ponte’s opening statement. Accepting the Prosecution’s rhetorical gesture toward Nuremberg, he drew the analogy with Hitler and other Nazi leaders, whom he acknowledged were to blame and deserved to be punished. But he also noted the responsibility of German citizens, thereby making the analogy relevant to the situation in former Yugoslavia because
Hitler and Nazism did not fall from the sky but were a product of their society. The same thing goes for Milošević. He is responsible for trying to turn his idea of a Greater Serbia into reality. However, a majority of the Serb society, including the Academy of Science and Arts, the university, the military, the Orthodox Church and ordinary citizens who called “we want weapons” during Serb meetings, contributed to the idea. Although Milošević will be tried today, the Serb population should also be held responsible for generating fascism amongst them. In the end, Milošević will have to pay for what he did, but Serb society must ask itself how it could have let crimes happen in its name.
Milošević’s trial should … explain how collective hatred could be spread throughout Serb society. The trial of Milošević and Hitler’s ideology should explain how one society could reach such an exalted point of hatred toward another people.29
It was this understanding of the role of Serbian society in the war that was missing in the strategy of the entire trial—yet another reason that the trial should have been kept in chronological order to begin with the warmongering in the 1980s. This matters because if there is to be any reconciliation between Serbs and Albanians, an understanding of the pathology of Serbian society, especially during this period, is essential.30 Surroi does not mention it, but besides hatred of Muslims, there is also overt racism in Serbian society toward Albanians that compounds the problem.*
Blerim Shala, the editor of the other main Kosovar newspaper, Zëri, took a different tack in responding to the opening of the trial, but one that also adverts to the need for the trial to be part of a broader reckoning. In his editorial, Shala referred to the mass graves in Serbia as “dead witnesses,” and noted that the Serbian government had revealed these graves just before deciding to transfer Milošević to the ICTY. He suggested that the crimes committed during the war in Kosovo alone were enough to warrant a life sentence for Milošević, but then he brought in what part the international community had played in the wars:
If The Hague prosecutors truly intend to explain the origin of Milošević’s crime in Kosova, then light will be shed on the connection between these crimes and a Serbian state tradition, and the support [Milošević] enjoyed in the highest Serb spiritual and intellectual circles. This would reveal the huge mistakes of the international community in Kosova and Bosnia during the period when it could have stopped the war in Bosnia and prevented the war in Kosova.31
Shala is referring to the long period in the 1990s when Kosovar Albanians held firm to nonviolence under Rugova but were not recognized by the international community.32 It was only after the Albanians had been totally ignored in the Dayton Agreements of 1995 that the KLA slowly gathered momentum.33 Thus for Shala, responsibility was not just with Milošević and the Serbs, but also with the international community; knowing what had gone on in Bosnia, and despite the long-suffering patience of the Albanians, it did nothing to stop Milošević in Kosovo until events had progressed to full-scale war.
After the first week, apart from ongoing interest in which witnesses the prosecutors would call, Kosovar Albanians continued to hold many reservations concerning the trial. Many believed that even if Milošević were convicted, justice would not have been served.34
The emphasis at the trial was on forced deportation.35 From a prosecutorial perspective, this was understandable, given that 850,000 Kosovar Albanians had been expelled from Kosovo and many thousands of others were internally displaced—and indeed the massive displacement of Albanians had been one of the principal points of interest in Western coverage of the war, as well as in NATO’s justifications for its intervention36—but this was not news to the Kosovars.
And again the singular focus on Milošević as an individual, which for the Tribunal was the point of the trial, and a point of pride, read differently for the Kosovars. What angered many Kosovars was that others also responsible for the killing of thousands, of which three thousand were still missing, had yet to be brought to justice. Kosovars felt more pressure needed to be brought to bear on Serbia, and did not understand why the West gave aid to a Serbia that still had not handed over war criminals such as Mladić and Karadžić—especially as the only reason Serbia had handed over Milošević was for Western aid.37
In addition, and consistent with the general desire to see the trial embedded in a broader context, Kosovar Albanians resented the decision to limit the scope of the Kosovo phase to only include crimes committed from 1 January 1999 to 30 June 1999.38 They especially resented that the repressive prelude of the 1990s and crimes committed by Serbian military forces, police, and paramilitaries during the final violent escalation from February 1998 through December 1998 were not included.39
There were articles on the Milošević trial across the seven-month period of its Kosovo phase. But by far the greatest number of articles in the Kosovar media was clustered at the outset of the proceedings, including the testimony of the first Albanian witness, Mahmut Bakalli, in mid-February, and around the testimony of President Rugova, in early May 2002. For Kosovars, Bakalli set the tone in an unimpressive manner, whereas the testimony of Rugova offered an opportunity to get across an important political message.
The first witness for the Prosecution was Mahmut Bakalli,40 a Kosovar Albanian and former Communist leader who had the unfortunate distinction of having put down the 1981 demonstrations in Kosovo. Why the Prosecution chose Bakalli to testify first is not clear. The formal purpose was to make clear that Milošević had been warned that Albanians were being illegally oppressed in Kosovo,41 but there were others who could have done this, and Bakalli was out of touch with the whole nonviolent movement of the 1990s.
Bakalli did not turn out to be an effective witness. His initial testimony was adequate if not inspiring, but on cross-examination Milošević was able to catch him in factual confusions of dates and events. He came across as unsure and unconvincing. From the Kosovar Albanian point of view it was a terrible beginning for the trial; it evoked an all-too-familiar scene where Milošević was in control, as he had been from 1987 to 1999.42
At first Koha Ditore tried to put the best face on a disastrous witness; Surroi noted that Bakalli had brought up details of history that he, Surroi, had not even known.43 The next day, however, Surroi’s newspaper reported on Bakalli’s performance more fully, describing what he—and his readers—saw as a bizarre situation in which Bakalli had to answer questions from the Accused and Milošević had the right personally to challenge all witnesses who appeared.44 Nothing in their own experience had prepared Kosovars for the spectacle of Milošević exercising his right to defend himself and all that that entailed in the trial.* But rather than criticize Bakalli directly, Koha Ditore quoted a Belgrade-based ethnic Albanian correspondent, Fahri Musliu,† as saying that Bakalli had provided poor testimony during the trial. Musliu was surprised that Bakalli was unprepared, because “Bakalli is one of the best political analysts in Kosovo. He didn’t make sure to argue carefully, and to make precise quotes of dates and events. Instead he stuttered like a dilettante and like someone who has never followed events in Kosovo.”45
The Koha Ditore article also quoted other former communist leaders such as Azem Vllasi, who were not satisfied with Bakalli’s testimony. “He mixed up dates and events, and he forgot to mention many important events such as the protests of mineworkers in 1988, or the protests against constitutional changes in 1989”46—events critical to the development of Milošević’s rule and to Kosovars’ memories of repression.
Other newspapers were equally censorious. Zëri had the headline “Trial or political debate?” and suggested that Albanian witnesses did not have to debate with Milošević because he was a criminal and no longer a negotiator—again striking the note that, whatever the quality of Bakalli’s performance, the very fact of Milošević’s engaging him directly was even more problematic. Kosova Sot reported that despite efforts to protect the truth of what had happened in Kosovo, Mahmut Bakalli had made a weak showing as the first witness against Milošević, and noted that facing continuous questions by Milošević, Bakalli failed to offer many facts related to Milošević’s crimes in Kosovo.47 Epoka e Re’s main headline was “Bakalli loses duel with Milošević.” It quoted a journalist in Pristina, “If all witnesses testify like Bakalli, then Milošević will be declared innocent.”48 A young man in Pristina was also quoted as saying, “Was Bakalli thinking that he was going to attend a wedding?” emphasizing how unprepared Bakalli appeared.49
It does appear that Bakalli was unprepared for what he would face. Was that the fault of Bakalli or the Prosecution? After all, the Tribunal allows the practice of proofing witnesses. At a later date Bakalli claimed that he had gotten confused by the translation format. Milošević spoke in Serbian, as his real audience was the Serbs. Bakalli knows Serbian and Albanian, and just as he was getting ready to respond to the question from Milošević, he reported, the translation in Albanian would come on his headset and would distract him.50 This does not totally explain his performance, but it helps explain some of the stuttering and arrhythmia in his testimony. Overall he was a poor choice for a witness, let alone the initial witness. But even more telling was the reaction of Kosovars, who saw a political defeat in his weak showing and a missed opportunity to frame the trial in their terms.
President Rugova’s departure for the ICTY to testify was itself news. All Kosovar newspapers heralded this as a sort of faceoff between Rugova and Milošević. There was certainly some basis for this. Apart from the trial, Rugova needed to publicly confront Milošević in order to explain to his own constituency the ways Milošević had used him in the 1990s, especially during the war, when Rugova had been under house arrest in Pristina, then taken to Belgrade to meet with Milošević, and finally flown to Italy. Although these meetings proved useful to the Prosecution,51 they had damaged Rugova politically.52 Yet this framing also fit into a pattern similar to what was occurring in Serbia—a tendency to analyze the trial in terms of a personal or national confrontation rather than a legal process.*
All the Kosovar newspapers ran articles on Rugova’s testimony, and all except Epoka e Re termed it “dignifying.”† President Rugova first answered questions from the Prosecution focusing on Belgrade’s repression in the late 1980s and 1990s, describing the abrogation of Kosovo’s autonomy in 1989, the expulsion of Albanians from their workplaces, and the LDK’s later efforts to organize a parallel system of education for Albanian students. Rugova focused on his philosophy of resistance and Kosovar political parties’ evolving views on the status of Kosovo, from advocating a republic within the SFRY to the Kaçanik Constitution of 1991. Rugova emphasized that the policy of Milošević’s regime had radicalized the situation: “We always wanted to find a peaceful solution, but we were also afraid that if there were no results people would react.”53
Rugova also addressed the most sensitive issue, and one of particular interest for his Kosovar audience—his meeting with Milošević during the NATO intervention: “I was under house arrest,” said Rugova. Serbian policemen and soldiers had forcefully entered his house in Velania. Rugova said he preferred to go to Macedonia with his family, but was told that was not possible. Instead he was forced to meet Milošević in Belgrade. “At first I didn’t accept, then they insisted and I went to Belgrade against my own will.” Rugova said the Serbs forced him to sign agreements.54
Over two days of cross-examination,55 Milošević took up the political and national challenge the Kosovar media had foreseen, asking Rugova if he thought the Albanian people had been used by NATO56 and if Serbs would ever give up Kosovo. Rugova replied,
Yes, I think that they will and should give up and [sic] Kosova…. Kosova belongs to the Kosovars. That is the Albanian majority [and the minorities, including the Serbs]. So I don’t know what Serbs you are talking about… [b]ut if you mean Belgrade,… the sooner [they give up Kosova], the better we’ll be.57
As he did with all other witnesses, Milošević asked Rugova if he thought the KLA was a terrorist organization. After Rugova said that he did not agree with such a conclusion, Milošević started quoting papers and statements saying that the KLA was a terrorist organization. Rugova responded to the Judge: “He may read these things all day. These are speculations of various kinds. The fact is that the majority of the KLA were people who had come out to defend themselves and their homes.”58
Overall, the headlines of articles on Rugova’s testimony in Kosovar newspapers considered that it had been important for Rugova to confront Milošević. Koha Ditore framed the confrontation historically with “Rugova and Milošević reveal unknown chapter of war,” while Zëri focused more on Rugova with “Belgrade decided to destroy Kosovo with war and violence, says Rugova.” Bota Sot, the LDK paper—and therefore the most pro-Rugova—was prosaic with “Kosovo President testifies at The Hague Tribunal,” while Kosova Sot again brought it back to Rugova with “A dignifying testimony of President Rugova.” Only Epoka e Re, the newspaper of the opposition PDK, criticized Rugova as an average witness, arguing that, as the leader of the Kosovar Albanians, he should have been clearer and less confusing. Albanians also reported that international coverage noted that Rugova laughed outright at Milošević’s description of the world “conspiring against Serbia and Serbs.”59
Equally interesting was the popular reaction to and media coverage of Rugova’s return to Kosovo, and his reflection on the meaning of his own testimony. All the way back from the airport, Rugova was greeted by thousands of citizens who had come out to welcome him. The newspaper of Rugova’s party, Bota Sot, wrote that they had come out to congratulate him on his successful testimony at the ICTY.60 Rugova himself described his own testimony in terms that connected it to the individual and collective suffering of ordinary Kosovars:
My testimony was a satisfaction to Kosova and to me. I testified on everything that happened in Kosova: crimes, massacres, violence, victims, the genocide and mass destruction that happened in Kosova.61
It was an honor to testify at The Hague on behalf of Kosova. I was honored to testify for the people of Kosova; and for me personally, I testified as an ordinary Kosova citizen and as President of Kosova.62
And perhaps most important to Kosovar Albanians, Rugova framed his testimony as a contribution to the national project of Kosovo’s independence. Rugova, above all politicians, is associated with the independence of Kosovo. Before anyone dared voice such an idea, Rugova had come back from study abroad (with Roland Barthes in Paris in the early 1980s) convinced that Kosovo would become independent, and he never wavered from this. His friends derided him,63 and circumstances throughout the 1980s and 1990s were grim, but Rugova held to this profound dream. He never lived to see it come to pass, dying of lung cancer in 2006. So when Rugova spoke of independence in 2002, people listened, and indeed he framed his testimony in precisely these terms, rather than simply as a technical, forensic issue of individual guilt: “I opened the issue of Kosova’s independence at The Hague. Kosova’s independence should be recognized as soon as possible, because de facto Kosova is independent.”64
The issue for Kosovar Albanians was not the verdict in the trial of Milošević. They had themselves experienced the oppression, the forced deportations and killings of family and neighbors, and they hoped that the trial would make clear what had happened in Kosovo. So far the trial had not gone as they had expected, with Milošević taking too central a role, and Albanian witnesses not presenting well or being inadequately prepared. But these were secondary matters; what truly mattered was what happened then, in 2002, in Kosovo—that it gain independence, not languish under the UN or be returned to Serbia. So Rugova’s testifying at the Tribunal was a contribution to the national project—an opportunity to remind the world that Kosovo was still there, and that what Kosovars needed was independence. That is what truly mattered to Kosovars at the time of the trial in 2002.
Between Bakalli’s testimony in February and Rugova’s in May, there was a gradual decrease in coverage of the trial in the Kosovar print media, resulting in periods of actual silence. Again after Rugova’s testimony, there was only sparse coverage through the summer to the end of the Kosovo phase in September. What caused this apparent waning of interest in the trial in Kosovo?
After Bakalli, the next three Albanian witnesses were villagers who had lost many family members in the war. Milošević was aggressive to the point of hectoring: one of the villagers on the second day refused to respond to Milošević further.* Their testimony was covered in the Kosovar newspapers, with reporters questioning the propriety of Milošević’s acting as a jurist and decrying the way the villagers had not been better prepared for what they had to face in the courtroom. At the same time, the villagers were evasive; when Milošević asked these early witnesses questions about the KLA—and he asked every Albanian witness about the KLA—they responded that they did not know anything. It is rumored they had been advised to deny knowledge of the KLA, although others held that it was natural for Albanians to deny knowledge of KLA activities to any Serb leader.* Either way, it did not add to their credibility at a time when Albanian witnesses were being examined closely by Serbian and international media.
By the end of February and into early March 2002, there was much less coverage of the trial in Kosovar newspapers. Certainly other more important events were competing with the trial for attention. At the end of February a coalition government was finally formed in Kosovo with the president from the LDK, and the prime minister from the PDK. In March, the main news in the region was the further disintegration of the FRY into what the Kosovar press recognized as a “fictitious federation[,]” for Serbia was 17 times larger than Montenegro.65 But also in mid-March Serbia stopped transmitting the trial live, showing that interest there had waned too,† and after Paddy Ashdown’s testimony on 17 March, Milošević became ill and the hearings were suspended. The trial resumed in April, but if press coverage was an accurate barometer, interest had waned. Or were there other factors at play?
Increasingly, Kosovars were not pleased with the way the trial was being conducted. After Carla Del Ponte visited Pristina in April 2002, she was interviewed by the local press, and their very questions—“Are you satisfied with the way the trial is going, the way the accused is acting, and with eyewitnesses’ answers?”66—suggested that local Kosovars were not satisfied.‡
Some of this dissatisfaction sprang from procedural changes that had been imposed with the aim of cutting the length of the proceeding and speeding up the trial. In the sixth week of proceedings, the Trial Chamber made a ruling allowing submission of written statements rather than purely oral testimony,67 although Milošević complained and was given the right to cross-examine all witnesses.68 A time limit was also placed on the Kosovo phase, with the number of sites reduced from 120 to 90—and instead of five witnesses for each of the 24 sites listed in the indictment, only one to two would be allowed in many instances.69 The judges made these changes as exercises in trial management, but they also may have affected the newsworthiness of the trial for Kosovars. They clearly reduced the number of Kosovars testifying, and drastically reduced the time witnesses were allowed to explain in their own words what they had experienced. But Milošević was not affected in the same way; he continued to take just as long for his cross-examination. In fact these supposed time-saving measures allowed Milošević to dominate even more.70 Only the victims lost, but because they had no real advocates, no one seemed to notice.
To try to understand these “time-saving” measures, consider a transcript for one day after the new procedures had gone into effect—24 April 2002, when four Kosovar Albanians testified. One of these witnesses was Sadik Januzi, the sole survivor of the Izbica massacre that head attorney, Dirk Ryneveld, had chosen to describe in his opening statement.71 This massacre was also important because the Serbs had tried to cover it up. During the war Belgrade had alleged that the massacre had not occurred, and had even had a supposed Albanian shepherd testify on Serbian television that no massacre had taken place there.72 The 138 bodies had been dug up and were still missing.73 This was a day, in other words, when there was at least one witness whose testimony appeared to matter both to the case and to the region.
There were four Kosovar Albanian witnesses called on 24 April: a 30-year-old journalist, Shevqet Zogaj from Mališevo (Malisheva); a 36-year-old interpreter and elementary teacher, Osman Kuci, from Suva Reka (Suharekë); an unmarried shopworker, Hadije Fazli, from Turićevac (Turiqec); and an 80-year-old retired farmer, Sadik Januzi, from Brojë. The first two had witnessed events in Suva Reka—the OSCE KVM’s mission’s departure and the subsequent massacre there. The second pair had witnessed events in Drenica (Drenicë)—mass expulsions and killings—with Januzi being the sole survivor of the massacre at Izbica; both had subsequently been forced out of Kosovo to Albania.
That day, the Chamber was in session from 9:30 in the morning to four in the afternoon, with a half-hour break in late morning, and an hour-and-a-half lunch break. The trial was in session for four-and-one-half hours, with the official transcript running 104 pages in English.* As shown in Table 1, this was taken up with six major areas: cross-examination by Milošević, cross-examination by the Amici Curiae, discussions of procedure and Tribunal policy, reading aloud witness summary statements, Prosecution reexaminations, and complaints by Milošević about telephone usage. There was a great variation in the time spent on each subject. A rough estimate of this imbalance can be seen through percentages of pages of the official English transcript in each of the six major areas.†
TABLE 1 Milošević Transcript 24 April 2002: Time Spent on Subjects
Areas of Court Proceedings |
Percentages of Pages of Transcript |
Cross-examination by Milošević |
69 |
Cross-examination by Amici Curiae |
10 |
Court procedure & Tribunal Policy |
9 |
Reading aloud witness (4) summary statements |
6 |
Prosecution reexamination* |
3 |
Milošević complaints about telephone usage |
3 |
* There was no reexamination of Hadije Fazliu or Sadik Januzi. See Milošević case (118), Trial Tr. 3759, 3777 (24 Apr. 2002).
The session began with Milošević complaining about telephone usage. The first two witnesses had the summaries of their statements read, and then they were examined in the morning; the last two witnesses were given less time but were similarly examined in the afternoon. The discussion of procedure took place just after the lunch break, followed by Milošević’s second sequence of complaining about the telephone.
Would such a proceeding be of interest to Kosovar Albanians? It is difficult to imagine a Kosovar newspaper that would be interested in reporting on this kind of proceeding. Close to 80 percent of it is taken up with cross-examination by Milošević and the Amici, while only 6 percent is witness testimony, and 3 percent is reexamination. Critically, the witness testimony was not given orally, but consisted of a Prosecution lawyer reading summaries of written statements into the record. Except in response to questions, Kosovar Albanian witnesses never actually testified in their own voice.
Milošević was certainly insulting and abrasive, as he had been since the first month of the trial. In his first question to Osman Kuci, Milošević asked when he had graduated from university; Milošević would have known that, as an elementary teacher, Kuci had never attended university, but rather a pedagogical institute.74 His questioning, based on Serb secret police records—known to be notoriously inaccurate regarding Albanians—was also tedious. He had trouble with Albanian names, for example referring to a witness named Qamil as “Namil[.]”75 Unlike Kosovar Albanian witnesses in the first month of the trial, the witnesses on 24 April were much more forthcoming regarding KLA actions in their regions—but here too, there was little that Kosovars would not themselves have known. In all, there was little of substance or even dramatic confrontation, and Milošević’s tactics, though certainly offensive to Kosovars, were not, or at least no longer, newsworthy.
Milošević’s cross-examination took up most of the day; the other participants hardly elicited testimony of particular salience for a Kosovar Albanian audience either. The main prosecutor’s interventions focused on the number of witnesses he would be able to call in the entire segment,76 while one of the two Amici Curiae disputed with a witness whether she had been afraid of being bombed in a factory or being raped in a factory.77 And when Milošević took the floor in his other role as Accused, he complained about being isolated78 and repeatedly about not getting enough telephone use.79 At the end of a long and unstrategic day, Sadik Januzi, the only surviving witness to one of the mass critical killings, plaintively told Judge May, “But you haven’t asked about what I went through at the Izbica massacre!”80 Indeed no one had.
Judge May tried to reassure Januzi that the judges had read his statement.81 But because these written statements have taken on more value as fewer witnesses have been allowed to testify directly and publicly in their own words about what they experienced, it is worth considering how reliable they really are. In particular, because our focus is on what logically should have been the critical testimony on 24 April 2002, we should examine the background of Sadik Januzi’s written statement to see how dependable it really was.
Januzi actually gave two statements.* The first was given on 23 April 1999 in Tirana, and mainly concerned the events leading to Izbica. It was taken by an Albanian interpreter, Alireza Islami, who translated it orally into English for a Frenchman, Yves Roy, who wrote it down in English. The interpreter then orally interpreted this back to Januzi in Albanian, who declared orally that it was accurate. This English statement from Roy—not a transcript of the actual Albanian utterance—was then translated into standard Albanian, a largely Tosk dialect, by the interpreters of the ICTY. Januzi does not speak standard Albanian but a northeast Geg dialect;† the final Albanian version—actually based on the official English version—could not possibly have been spoken by Januzi.
Januzi gave a second witness statement as well, taken on 21 October 2001, presumably in Kosovo. In a similar process, the interpreter, Ardiana Sadikovic, took Januzi’s oral Geg Albanian statement of what happened after the Izbica massacre on the way to Albania. This she interpreted orally into English for Annette Murtagh, who wrote it down in English. Sadikovic then interpreted the English back orally into Albanian for Januzi to declare that it was what he had said. Again, this English statement was then translated into standard Albanian at the Tribunal.
Any linguistic anthropologist would be appalled by this procedure. Indeed, anyone who has ever played the game “telephone” knows how readily language is modified even at one or two removes. These oral interpretation and translation moves allow for multiple changes, and the translation into standard Albanian from English adds another layer. On top of this is the problem that those taking the witness statements are often investigators who are not native speakers of English (such as French, Austrian, and Bangladeshi citizens).82
A recent study on witness testimony in international criminal tribunals found more than 50 percent of prosecution witnesses testified in a way that was seriously inconsistent with their pretrial statements.83 It is unlikely that the problems with Kosovar witnesses’ pretrial statements were as serious,84 but the probability for miscommunication and error with interpretation and translation across languages and dialects, spoken and written forms, is extremely high. From a linguist anthropological perspective, we do not have a true witness statement by Sadik Januzi: Instead, we have approximations made to save time and accommodate the English-speaking personnel of the Tribunal, and we have nice standard Albanian forms translated, not from Januzi’s original Geg utterances, but from those English renditions.
With this pragmatic linguistic construction, euphemistically called a “witness statement,” as a temporary document showing that he had something of value to say, Sadik Januzi should plausibly have been identified as someone whose testimony would be probative. He therefore should have been allowed to testify, to tell the experience of the massacre of Izbica in his own Geg Albanian dialect for posterity. This could have been interpreted fully into English and Serbian during the proceedings.‡ That would have been a true witness statement of value, and one valued by the Kosovar media. Although it would not have been valued by Serbian media in 2002, it would have become part of a documentary record that would be available if and when Serbs were ready to hear what had happened in Kosovo.
Instead Ryneveld read what he described as a “skeleton trial summary”85 of the two written statements—yet another layer of abstraction, and one constructed by him, rather than by the witness. Milošević then asked Januzi several questions about KLA activities and Serbs in the region, and the Amicus Curiae asked about his departure to Albania. There was no redirect. And no one brought up the central event of the massacre at Izbica despite Januzi’s repeated pleading to be allowed to describe what he and only he had lived through.86
The Kosovo phase of the trial was an awkward learning experience—the preparatory phase made public—and policies approved there were used in the Bosnia and Croatia phases. It is also possible to see in the MOS trial of Milošević’s co-indictees that the Prosecution has applied lessons learned from the Kosovo phase—focusing on fewer deportation and killing sites to make their points.87 But for Kosovo itself, the Milošević trial was not a success, and the tepid local media coverage was an indicator of this. As some of the other chapters suggest, the response in Belgrade—where some likened the trial to a football match—was even more an indicator of things gone wrong.
Several months after the end of the Kosovo phase of the trial, a commentary on the trial in a Kosovar Albanian newspaper noted:
The trial of Milošević at The Hague did not arouse the emotions of European and world citizens. Even Albanians perceived it with reservations; however, the Serbian state welcomed it with pleasure. Europe hadn’t felt the burden of crimes committed by Serbia as it felt the burden of Nazi crimes. Of course, Serbs knew this and through tremendous political pressure managed to turn the most recent tragedy of the Balkans into a private animosity between The Hague chief prosecutor Carla Del Ponte and the criminal Milošević. This was the best way to make the world perceive this trial as only an indictment against a local minister of corruption. By trying some individual criminals, The Hague tribunal has not managed to bring the organized crime of the Serbian State to justice.88
The author, Besim Zymberi, testified to the anger Kosovars felt toward the ICTY for missing the larger picture of what had happened to them under Serbian rule. Here the restriction of the trial to considering only six months of war crimes was deeply disturbing to Kosovars, who felt at the very least that 10 years of oppression should have been in the dock—and some would have stretched it to 87 years.89
But the next point in his commentary, and one representative of the Kosovar press, is the deep resentment of the ICTY for its indictment in 2002 of former KLA leaders for alleged crimes committed against Albanian collaborators from 1998 and 1999. Not only were these acts in no way comparable to Belgrade’s state terror against Albanians throughout the 1990s, but reports about them could only have come from the files of the SDB. What place did the international community have in imposing its justice in what was perceived as an internal Albanian matter dealing with collaborators? For Kosovars, it was not an international matter.
The reception of the trial of Milošević among Kosovars was already problematic given the latitude afforded Milošević, the poor preparation of witnesses, and the stifling of their public testimony in the “interests of time.” So the arrests in the summer of 2002 of former KLA leaders led to demonstrations in Drenica, the region where the KLA had originated. The ICTY Outreach Program organized a workshop in Vučitrn (Vushtrri) in Kosovo for one hundred Kosovar lawyers and brought three judges from the Tribunal to explain the Tribunal Proceedings to them. The Kosovar press noted this without comment. For Kosovars, the ICTY’s value was to be measured, not by its achievements as a forensic legal process, but by its contribution to the national project of winning independence; trying Kosovars for their internal struggles had no part in that.
What was missing at a profound level in the Milošević trial was an understanding of the historical perspectives of the peoples involved in the crimes being prosecuted. Such an understanding was needed if the trial was to successfully counter the Serbian view of events. That is why the massacre at Izbica mattered, for example: At the time, highly censored Serbian media had declared it had never occurred and this misinformation needed to be directly countered.
On a broader scale, understanding the history of the people involved in the war crimes should have been a powerful determinant to keep charges in Milošević in their historical order. The Prosecution had made a strategic decision to join the Croatia, Bosnia, and Kosovo indictments into a single trial, under a single overarching theory that implied a view of the conflict’s development.90 Yet the Prosecution abandoned this logic by putting Kosovo first—and many Kosovars felt that, by reversing the chronological order of events in the trial, the Prosecution gave Milošević an extrajudicial advantage in that he could play to anti-Albanian and anti-NATO sentiment in Serbia. The Prosecution focused its attention, and Milošević’s, on the people most despised by the Serbs—the Albanians, with NATO as an added weapon. This approach played into existing anti-Albanian sentiment in Serb society, allowing Serbs to continue ignoring their role in the events that led to the dissolution of Yugoslavia.
Other ways in which the trial ignored local contexts cannot be explained merely as the ill effects of the Prosecution’s strategy. The treatment of witnesses at the Tribunal further alienated both participants and those watching in Kosovo. The actual process of testifying was harrowing enough: Kosovar Albanian witnesses felt used and abused—they came all the way to the ICTY, only to be harangued by Milošević and not allowed—just as Sadik Januzi was not—to tell their own experiences, which was deeply frustrating.91 Further, Kosovar Albanian women who had testified as anonymous witnesses found that their identities were protected while at the Tribunal, but revealed back in Kosovo. Some Kosovar Albanian women, who were victims of rape by Serbian forces during the conflict in Kosovo and later testified against Milošević, reportedly threatened to commit suicide if they were returned to Kosovo.92 “I don’t want to return, I feel endangered and I would rather live on the streets than return to Kosova,” said one of the witnesses, adding that all other Albanian witnesses felt betrayed by the Tribunal, when they had no alternative but to return to Kosovo. In September 2002 the women refused to return to Kosovo.93 Sevdije Ahmeti, cofounder of the Center for the Protection of Women and Children, who had organized their testimony at the Tribunal, said she would never again counsel women who had been raped to testify in such circumstances.94 If the Tribunal had understood the importance of family honor in Kosovo, perhaps it would never have requested the women to testify,* or at the very least, it would have worked harder to guarantee their anonymity.
This patterned and pragmatic inattention to history and to the voices and perspectives of witnesses was not limited to the process of producing Kosovar witnesses’ statements and reducing them to text, or to inattention to the needs of those testifying; it informs the entire trial process. Reading the trial transcript, one is struck by the Tribunal’s deep insensitivity with regard to place names in Kosovo. The Serbian forms are often used exclusively; when there are references to maps to locate the domiciles of the Albanian witnesses—often places exclusively populated by Albanians—the place names are always given in Serbian forms. The Prosecution had adopted this practice for the original Kosovo indictment even though—as its personnel knew95—Serbia had used language as a means of oppression. Throughout the 1990s only the Serbian forms were allowed on signs throughout Kosovo, while the Albanian forms were forbidden. In this context, reference to the Serbian “Srbica” instead of the Albanian “Skenderaj” matters. Use of Serbian names continued lingual oppression, or at the very least, showed insensitivity in evoking the period of oppression. Kosovars listening to the trial would immediately have picked up on such signals by the Tribunal.
The written testimony format that the Milošević trial adopted—based on multilayered interpretations from local languages and dialects, translated into and out of English, and presented without direct testimony—is inadequate on several grounds. It is essential that the testimony of witnesses to important war crimes be given orally, directly, and in open proceedings, video-recorded, transcribed, and translated into relevant languages—here Serbian, Albanian, and English.
First, to ensure confidence in the original transmission, the witness statement used at trial should be based on a statement directly composed from the actual utterances of the witness—in Januzi’s case, this would have meant the initial translator would have recorded Januzi’s words in his dialect, and from this the English version would have been produced.
Second, witnesses should testify directly and be recorded for posterity. On psychological grounds, it is not meaningful to the witness to have a prosecutor read aloud a summary of an experience one has had in place of recounting that experience oneself. It is also bad for press coverage and popular reception in the region: summaries flatten out events, rendering them impersonal and therefore less newsworthy, as was the experience with Milošević in Kosovo. If the trial is meant to influence attitudes and understanding in the region—both among Serbs and Albanians—it needs to be alive and worth transmitting.
Undoubtedly, the length of the trial was an important concern driving the turn to written statements, but the more logical way to save time would have been by prioritizing and focusing on the most important crimes. Instead, the Tribunal, committed to an expansive review of representative crimes, tried to save time by silencing its own carefully selected live witnesses and victims, converting what would have been historic oral testimony into readings—by prosecutors—of “skeleton summaries” of multiply mediated texts.
The future value of such texts is questionable; if, say, in 10 years the Serbian people are ready to hear what happened at Izbica, they should hear it from Sadik Januzi, the sole survivor, but by then he will probably be dead. “The voice of the victims” that Antonio Cassese, the first president of the Tribunal, had insisted must be heard,96 will no longer be available. There will be only the Tribunal’s “time-saving” texts.*
One could usefully contrast the ICTY’s approach with that of Adem Demaçi, a Kosovar politician and long-time advocate of independence who spent 28 years in FRY and Serbian jails as a political prisoner and is known as the Kosovar “Nelson Mandela[,]” and who enjoys considerable esteem in the region.97 A month after the trial began, Demaçi gave a talk at the National Library in Pristina in which he noted the usual political interpretation of the trial, but also the value of domestic justice that involved the Serbs themselves—in a way that shows the basic structural defect in the idea of holding a trial at the ICTY, with all that implies: “Milošević should be tried and punished by his own people…. The greatest punishment will be the independence of Kosova. This we must do ourselves.”98
Ideally it would have been better for Milošević to have been tried by the Serbs. But would this have happened? Perhaps he would have been tried for corruption, but it is not clear even in 2013 if Serbia has come to terms with what it did in Bosnia, Croatia, or Kosovo in the 1990s.99 Still, Demaçi had a point that people in the region needed to deal responsibly with their own actions—and an international trial in The Hague was too alien to contribute to that necessary goal. He was therefore reacting against over-involvement by the international community, which displaced opportunities for communities in Belgrade and Pristina to take responsibility.
A month later, as president of the Council for Tolerance and Coexistence in Pristina, Demaçi also called for the return of Serbs to Kosovo, but at the same time emphasized the importance of recognition and apology, not only at the individual level on which the Tribunal focuses, but also at collective and political levels. According to Demaçi, whether individual Serbs committed a crime or not, they needed to ask forgiveness from Albanians.100 The following month, Demaçi publicly called on representatives of the new Serbian government to apologize to Kosovar Albanians for war crimes committed during the Milošević regime:
Even after three years, no politician in Serbia has tried to apologize to Kosovar Albanians for war crimes and bloodshed caused by Milošević’s regime in ten years. Belgrade should make such efforts if it truly wants peace and co-existence between Serbs, Albanians and other communities in Kosovo.101
This represents, not merely a complement to the work of the Tribunal, but a radically different approach—one that the work of the Tribunal does not contribute to and may actually obstruct.
Where the states supporting the Tribunal had used aid funds to secure Serbia’s cooperation, Demaçi called for returns and apologies. A further proof of the Tribunal’s detachment from the lived realities of people in the region is indicated by Demaçi’s time frame, which referred to changes over a decade, not the six months of the Kosovo phase. Along with apologies—and a trial—there is also a need for a rich and enduring historical and media record to provide a factual basis for moments of acknowledgment and reconciliation, whenever they come.