THE HAGUE, THE KLA, SERBIA AND THE BIA WHERE WERE KOSOVO AND ALBANIA WHEN THE KLA NEEDED TO BE DEFENDED? By Flamur Buçpapaj

THE HAGUE, THE KLA, SERBIA AND THE BIA
WHERE WERE KOSOVO AND ALBANIA WHEN THE KLA NEEDED TO BE DEFENDED?
By Flamur Buçpapaj
Today’s decision by the Kosovo Specialist Chambers in The Hague concerning Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi cannot simply pass as another court news story. It should open a major legal, diplomatic and political debate in Kosovo and Albania.
Because the question that must be asked today is not only: What did The Hague decide?
The other equally important question is:
What did the governments of Kosovo and Albania do before this case reached this point?
The Specialist Chambers today found the defendants guilty of four war crimes — murder, torture, cruel treatment and arbitrary detention — while acquitting them on six charges of crimes against humanity, finding that the required standard concerning a widespread or systematic attack against a civilian population had not been established. The judgment is a first-instance decision and may be appealed.
But one point must be stated clearly:
A criminal judgment against individuals is not automatically a judgment against the entire KLA, the Kosovo war, or the right of the people of Kosovo to freedom.
The proceedings in The Hague concern individual criminal responsibility within the court’s jurisdiction. They are not, in themselves, a judgment on the entire history of Kosovo or on the political aspirations of its people.
WHERE WERE THE GOVERNMENTS OF KOSOVO AND ALBANIA?
This is the question that must be answered.
Where was a joint Kosovo–Albania legal strategy?
Where was a strong international team of lawyers, historians, researchers and experts in international law working systematically on every allegation?
Where was the diplomatic effort to present the full context of the Kosovo war?
Where was the Albanian and Kosovar documentation concerning the crimes, ethnic cleansing, deportations and violence committed during the war by Serbian forces?
Where was the legal challenge, point by point, to every document, testimony and allegation used against former KLA leaders?
And above all:
Where was the strategy to challenge legally every testimony, every document and every allegation presented against the KLA leadership?
The court proceedings involved a very large body of evidence and testimony. This demonstrates the extraordinary scale of the material that had to be addressed legally by the defence.
Therefore, the responsibility cannot simply be left to the lawyers representing the four defendants.
This was a matter of historic importance for Kosovo.
WHAT ABOUT SERBIA AND THE BIA?
Here, transparency must be demanded.
Serbia has had a direct political and historical interest in presenting the Kosovo war through a narrative in which the responsibility and alleged crimes of the Albanian side are placed at the center.
This does not mean that every testimony or document originating from a Serbian source is automatically false.
But it does mean that every material originating from the state or security structures of a party involved in the conflict should be subjected to the highest level of legal verification.
And here the question of BIA, Serbia’s intelligence agency, arises.
If documents, communications, operational materials, pressure, mediation or other forms of intervention by BIA exist concerning the creation, direction or support of testimony against former members of the KLA, these matters should be
WHY WAS A STATE-LEVEL LEGAL DEFENCE STRATEGY NOT BUILT?
Kosovo and Albania had the opportunity to work much earlier.
A joint archive should have been created.
War-related documents should have been collected.
The crimes committed against Albanians should have been systematically documented.
Every Serbian document should have been analyzed.
Witness sources should have been examined.
Historical and legal expert reports should have been prepared.
An international strategy should have been developed to explain the distinction between individual criminal responsibility for a specific crime and the broader character of the Kosovo liberation struggle.
And this should have been done before the case reached its final stages.
SHOULD THERE HAVE BEEN A LAW AND A CONTROL MECHANISM?
This is another question that must be opened.
Kosovo established the legal framework for the Specialist Chambers through constitutional amendments, the relevant legislation and an international agreement. The court itself describes its mandate as temporary and limited to a specific jurisdiction.
But today we must ask:
Did Kosovo have sufficient democratic, parliamentary and legal mechanisms to monitor how this mandate was being implemented?
Should greater transparency have been demanded?
Should stronger oversight of evidentiary standards have been required?
Should the handling of materials originating from foreign sources have been subject to greater scrutiny?
Should a review of the mandate have been requested if serious concerns about impartiality or institutional functioning emerged?
These questions should be openly discussed.
Not in order to interfere with an individual trial, but to protect the principles of justice and public confidence.
SHOULD THE COURT BE REVOKED?
This cannot be decided through a political declaration.
But it is legitimate to discuss whether, if serious structural, legal or procedural problems are established, there are mechanisms for reviewing, reforming, changing or bringing to an end the court’s mandate in accordance with the law and the applicable international agreements.
This is a matter that should be analyzed by experts in constitutional law, international law and by the institutions of Kosovo.
Because a serious state should not be afraid of legal scrutiny of its institutions.
AND WHAT ABOUT ALBANIA?
Albania cannot behave as though this is only Kosovo’s issue.
The Kosovo war directly affected Albania.
Kukës became part of the history of that war.
Hundreds of thousands of Kosovo Albanians crossed the border.
Albania became a humanitarian and territorial base for refugees and for many structures connected with the war.
Therefore, Albania should have — and should continue to have — a serious role in the historical, legal and diplomatic documentation of that period.
Not to replace the courts.
But to ensure that history is not constructed solely from the archives and narratives of one side.
TODAY, ACCOUNTABILITY MUST BE DEMANDED
After this judgment, Kosovo and Albania should ask themselves several very difficult questions:
What did we do to provide legal protection for this case?
What documents did we present?
What documents did we fail to present?
Which Serbian allegations were challenged legally?
Which testimonies were examined, and which were not challenged sufficiently?
Was the role of Serbian security structures investigated?
Was enough done diplomatically?
Was there a joint Kosovo–Albania strategy?
If the answer to these questions is no, then political and institutional responsibility must be examined.
Because it is not enough to come forward after a judgment and say that one disagrees with it.
The work had to be done before the judgment.
A COURT SHOULD NOT WRITE HISTORY ALONE
The court has the duty to determine individual criminal responsibility within its legal mandate.
The history of Kosovo must be documented by historians.
Archives must be opened.
Documents must be made public.
Serbian materials must be analyzed.
Claims concerning the role of BIA must be investigated.
Testimonies must be verified.
And every appeal must be treated with the greatest legal seriousness.
Kosovo must not remain silent.
Albania must not remain silent.
But neither should rely only on political declarations.
There must be documents, archives, expertise, diplomacy and serious state-level work.
Today’s judgment is serious. But the legal chapter does not end here.
There is an appeal process.
There will be analysis of the judgment.
There are opportunities to examine the legal arguments.
And there is a much greater historical responsibility:
We must not allow the history of Kosovo to be written only by Serbia, but neither should history be defended through slogans. It must be defended through documents, law, diplomacy and serious institutional work.
Because criminal responsibility is individual.
But the history of an entire people is much greater than a single judicial proceeding.
And for precisely this reason, today more than ever, Kosovo and Albania must ask themselves:
WHERE WERE WE WHEN WE NEEDED TO BE THERE?
Nëse dëshiron, mund ta bëj edhe një