'A Reckoning Hasn't Happened'

A new tribunal might prosecute some of Kosovo’s top leaders for gruesome crimes allegedly committed in the late 1990s, including organ trafficking and murder. But could it actually deliver justice?

PRISTINA, Kosovo — Without answers, Milorad Trifunovic fears the worst.

Tifunovic says his brother, Miroslav, a fellow Kosovar Serb, was abducted in July 1998 near Kosovo's capital by an ethnic Albanian guerilla army and has been gone ever since. Miroslav is one of the 1,700 people still missing from the 1998-1999 war fought between Kosovo and Serbia, in which 10,000 people were killed. Since allegations first surfaced in 2008, just after Kosovo declared independence from Belgrade's authority, that some ethnic Serbs were interned in northern Albanian prisons soon after the war and had their organs harvested and sold on the black market, Trifunovic has feared that his brother met death that way.

"All of us who have lost someone, we all have the right to fear that our relatives were subjected to that fate," he says.

Now the head of an advocacy group for Serb families of missing persons, Trifunovic hopes that he and other relatives will finally find out what happened to their loved ones.

Accusations that officials in the Kosovo Liberation Army (KLA) were responsible for post-war revenge killings and persecution have dogged Kosovo since 1999, when military leaders began transitioning into civilian government positions, and they have clouded Kosovo's quest for international legitimacy ever since. In 2010, Swiss politician Dick Marty, working for the Council of Europe, reported that he had found evidence senior members of the KLA had committed war crimes and murders, and abused ethnic Serbs, Roma, and even ethnic Albanian political opponents in the months after the war's official end. Some of them, he found, may also have trafficked organs.

Now the European Union is working to set up tribunal dedicated to addressing these findings and, when appropriate, bringing people to trial: On July 29, Clint Williamson, an American prosecutor leading an EU investigative team, published a report that largely squared with Marty's findings and that said the team "will be in a position to file an indictment against certain senior officials in the Kosovo Liberation Army" -- some of whom are still active, even powerful in Kosovo's government today. The indictment would be brought in a new court, likely based in The Hague, that would open in 2015 expressly for the purpose of dealing with KLA cases. (Kosovo's legislative assembly approved the tribunal in April, but it still needs to pass legislation harmonizing its structure and mandate with the country's constitution.)

The prospect of the tribunal has aggravated sensitivities about yet another international body meddling in Kosovo's affairs, reviving old resentments, and dragging claims of savagery onto the world stage. Kosovo's Prime Minister Hashim Thaci, who was mentioned in the 2010 Marty report as "one of the most dangerous of KLA's criminal bosses," has called the court "the biggest injustice and insult which could be done to Kosovo and its people." Many ordinary Albanians, whose population sustained the large majority of casualties in the war under the iron fist of Slobodan Milosevic's regime, also feel aggrieved that the court would only try those associated with one side of the war.

Others, by contrast, see it as a chance to address past wrongs long left in the shadows. For Trifunovic and other Serbs, who now comprise less than ten percent of Kosovo's population, the court is working to right an historic judicial imbalance. "There are victims on both sides, Serbs and Albanians, but... Serbs did much more to punish their citizens," says Aleksandar Jablanovic, leader of Kosovo's main Serb political party. "Serbia has surrendered presidents, ministers, and generals to the Hague, and on the Albanian side, such a reckoning hasn't happened." The International Criminal Tribunal for the former Yugoslavia (ICTY) has sentenced 60 Serbs to almost 1,000 years in prison, plus five life sentences, for crimes committed in the 1990s Balkans wars. Of six indicted Albanians, only one received a conviction, with a sentence of 13 years. (Kosovo did send a prime minister to The Hague: Ramush Haradinaj, who was acquitted and will likely be the country's next prime minister.)

As for the most salacious -- and infamous -- allegations in question, many Kosovo Albanians hope that the tribunal would put an end to the speculation for good. "Maybe history once and for all will prove that organ trafficking has never taken place," says Nora Ahmetaj, founder of the Prishtina-based Center for Research, Documentation, and Publication, an NGO that advocates for regional reconciliation and objective interpretation of the past.

"I really think this organ trafficking thing is a bit unrealistic," echoes Yll Rugova, 29, a political activist.

Yet for Rugova and the 70 percent of Kosovo's population that is under the age of 30, discussions about the tribunal are also prompting more critical evaluations of events that happened while they were young. Typically, history has been presented to them in a simplified victim-perpetrator narrative. "I do think that some people from the KLA did commit crimes. There probably were some people who did kill unarmed civilians, during and after the war," Rugova says. "We need to do this," he says of the court.


An indictment in the new court would likely have a serious impact on Kosovo's international credibility. "To a great extent these allegations damaged the image of Kosovars and the KLA, and those who really fought for an idea," says Ahmetaj. "For them, the entire idea of liberation is completely diminished." It also could be damning for Western countries that have enthusiastically supported Kosovo's post-war leaders (even though some of those same countries are helping sponsor and pay for the court).

Yet the planned tribunal, which has a three-year budget of 300 million euros ($400 million), is just the latest in expensive international judicial solutions in post-war Kosovo -- and some people are questioning whether it can avoid the pitfalls of those that came before it.

After the war ended, the U.N. Interim Administration Mission in Kosovo (UNMIK) ran the judicial system until Kosovo declared independence in 2008. Then, the European Union deployed EULEX, an ambitious, unprecedented rule of law mission, tasked with trying war crimes, organized crime, and corruption cases as well as mentoring local authorities. EULEX has handed down approximately 350 verdicts for high-profile war crimes, torture, corruption, and organized crime cases -- but it is often criticized for bureaucratic inefficiency, inadequate witness protection, high human resources turnover, and failures in sentencing "big fish."

The tribunal, which would technically fall under EULEX's mandate, would function under Kosovo law, but much of the proceedings would likely be exported to the Netherlands due to witness-protection concerns. Physical separation from Kosovo, however, may not be a surefire way to prevent witness obstruction: A former KLA commander who was to provide key testimony in a EULEX trial against another KLA leader, Fatmir Limaj -- who served as a Kosovo government minister -- was found hanged in 2011 in Germany. It looked like a suicide, but his family said it was not. At the time, the former commander was under EULEX witness protection.

Limaj, a prominent politician, had previously been acquitted of war crimes against Serbs and Albanians before the ICTY. The judges said in their ruling that a "context of fear, in particular with respect to witnesses living in Kosovo, was very perceptible throughout the trial."

Andrea Capussela, a long-time policymaker in Kosovo's International Civilian Office (which oversaw the country's governance from 2008-2012), also worries about political influences on the new court. "The 15-year track record of internationally administered justice... is not great," he says, raising concerns about potential interference from the tribunal's sponsors. "What if they say, ‘We cannot de-stabilize Kosovo by sending [top officials] to jail?' Then you have an international acquittal, and the worst of both worlds for someone who is interested in the democratic development of the country."

Then, there is the matter of what happens after Williamson's planned indictment, which is intended only for a handful of top KLA members. There is a backlog of more than 800 war crimes cases in Kosovo, and a renegotiation of EULEX's mandate in June handed authority over to local prosecutors, who have led fewer than ten war crimes prosecutions since 1999.

Despite the lack of local capacity, Ahmetaj is among many Kosovars who would prefer that the country try the crimes themselves, without international assistance, as a state-building and accountability exercise. "I see this as a short cut, an injection, an external push for the process of dealing with the past," Ahmetaj says of the new court. "Maybe the conditions are not met in Kosovo, but the more grassroots, bottom-up the process is, the better for our country."



'Boys Will Be Boys'

In India's largest state, a misogynistic family-run political dynasty wants to pretend a rape epidemic doesn't exist.

On the morning of May 27, villagers in the Badaun district in India's Uttar Pradesh state found two teenage girls, raped and murdered, hanging from a mango tree. The girls had disappeared the night before, never returning after wandering into the fields near their home to go to the bathroom. The attack came days before a series of brutal assaults across the state: Four men gang-raped a 17-year-old girl, and another group of men beat the mother of a different rape victim after she refused to withdraw an official complaint. On May 30, reporters confronted chief minister Akhilesh Yadav in the state capital of Lucknow about the recent wave of sexual violence.

But the 41-year-old leader of India's most populous and arguably most lawless state was unrepentant. "Aren't you safe?" Yadav shot back, standing amid a gaggle of microphones, his aides smirking behind him. "You're not facing any danger, are you?"

The remarks were consistent with what has become a disturbing party line. Yadav is one of the leading politicians in the Samajwadi Party ("Socialist Party"), a left-leaning group that has built a reputation as one of the most anti-women parties in the country. In April, Yadav's father, party head and former Uttar Pradesh chief minister Mulayam Singh Yadav, opposed capital punishment for rape, citing that "boys will be boys ... they make mistakes." Just days later, Abu Azmi, the head of the party's Maharashtra state branch, argued that if men were hanged for rape, then women should be hanged for having premarital sex. In July, Mulayam sparked controversy again by claiming that out of all Indian states, Uttar Pradesh had the most people but the fewest rapes -- a blatant lie. (Reached through a party spokesperson, Yadav and his father declined to comment.)

A combination of uneven development, a flawed judiciary, and systemic police corruption have made Uttar Pradesh among the most difficult places to be a woman in India. The state -- with a population of roughly 200 million, enough to make it the fifth-largest country in the world -- reported over 32,500 incidents of gender-based crime in 2013, ranking second only to the admittedly less populated Andhra Pradesh. Of those, 3,000 were rapes -- more than a 50 percent rise from the year before, according to the Ministry of State for Home Affairs, which oversees the national police service. Yet these numbers don't tell the whole story; rape carries significant stigma in India, and can often lead to abuse directed towards the victim, causing sexual assault to go widely underreported.

The scale of gender-based violence in Uttar Pradesh is likely much worse than the already disturbing figures suggest. That is not the way the party sees it, however. "This whole thing about violence against women -- this is propaganda," Rajendra Chaudhary, a Samajwadi Party cabinet minister and spokesman, told Foreign Policy. "These incidents are unfortunate and we're trying to fix them, but this is a social problem. We can't say that this is happening because of government."

Meanwhile, the Samajwadi Party has resisted efforts to reform rape laws, refused to reserve a portion of seats in its parliament for women, and opposed increased penalties for sexual crimes after the now-infamous 2012 Delhi gang rape, where a young woman was brutally -- and fatally -- assaulted on a bus in the capital. In Uttar Pradesh "violence against women," said activist Kavita Krishnan, who runs the All India Progressive Women's Association, a women's rights organization, "seems to be a feature of governance."

While the state's leaders have long presided over an inept administration that enables widespread sexual violence, the younger Yadav was supposed to be different. Australia-educated, well-spoken, and charismatic, Yadav ran as a reformer who could fix Uttar Pradesh's corrupt and sclerotic bureaucracy -- and, in turn, upend the state institutions that had abetted impunity for criminal perpetrators. But two years later, he has done little to distinguish himself from the party's old guard; sexual assault remains pervasive in his state. It's a product of a systemic rape culture, according to Krishnan, that very much still "flows from the top."

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Mulayam, the sitting chief minister's father, founded the Samajwadi Party in 1992, after his first short stint as chief minister ended the year before. Allied with the Indian National Congress -- the center-left party that dominated national politics until its dramatic defeat in this year's general elections to the center-right Bharatiya Janata Party (BJP), led by Narendra Modi -- the party pushed a grassroots, socialist platform in Uttar Pradesh, promising to boost welfare spending and reservations for minorities. But Mulayam, a former wrestler, asserted power through patronage. He forged coalitions with local strongmen from Muslim communities and with members of his own caste, who could drum up votes in exchange for favors. He also courted khap panchayats -- powerful councils of men that often rigidly enforce outdated, patriarchal traditions, including threatening couples who marry across caste lines or restricting young women from carrying cellphones.

The chief minister even supported the political careers of gangsters like Munna Bajrangi, a contract killer (now in jail for the 2005 murder of a BJP assemblyman) who also specialized in securing government contracts. "The problem with the Samajwadi Party is the whole party structure is basically built on local mafias," said Badri Narayan Tiwari, a columnist and political scientist at G.B. Pant Social Science Institute, a leading university in Allahabad. The mafias dominate the local levels of the party, he added, "so when they come into power, they become free from any punishment."

Mulayam served a total of three stints as chief minister of Uttar Pradesh, and as national minister of defense in the 1990s; he remains one of the most powerful politicians in northern India. The political environment he fostered during his most recent run as chief minister, from 2003 to 2007, sheltered criminals from law enforcement. By the 2012 state elections, nearly half of the Samajwadi Party's 401 candidates had criminal records. With a graft-ridden justice system and power decentralized among patriarchal, local-level strongmen, accountability for sexual violence was rare.

Still, the younger Yadav, then an MP, built support for his campaign by promising a clean break from the corrupt, inefficient governance that characterized the tenure of both his father and the then-ruling Bahujan Samaj Party, a socialist party focused on the traditionally marginalized Dalit caste. His campaign promises included free laptops for students who passed 12th grade, greater health care spending, and investment in the education of young girls. He even publicly denounced his father's friend, D. P. Yadav, a powerful mafia don and liquor bootlegger.

In that March 2012 election, his Samajwadi Party nabbed 224 seats in the 403-seat state assembly. At the age of 38, Yadav took office as India's youngest chief minister. "In a country where the public hunger for change is palpable, yet where politics often seems unchangeable, Mr. Yadav is suddenly, unexpectedly, a symbol of a new generation," a New York Times profile read.

But that euphoria was short-lived. In his two years in office, Yadav has done little to dismantle the architecture of official corruption his father built. Mulayam, his father, maintains significant control over the state bureaucracy, often reappointing officials with a history of corruption to high-level positions in the administration. Yadav's first cabinet had 47 members, allegedly handpicked by his father; 12 of them faced serious criminal charges like murder, rape, and assault. In December 2012, Uttar Pradesh's highest court ordered the administration to remove Rakesh Bahadur, a former chairman of Noida, one of New Delhi's satellite cities, who was implicated in a roughly $820 million real estate scam; this July, Bahadur became the chief minister's top advisor.

Critics say that Yadav has simply been unwilling, or unable, to challenge the old guard that continues to profit from state institutions. "It's a typical traditional Indian feudal family: Whatever father says is law," said Sharad Pradhan, a journalist and political analyst who has tracked both father and son through their political careers. Yadav "lacks [the] will and determination and grit that [he] demonstrated during the campaign."

Yadav's failure to tackle corruption has serious implications for the women in his state. In what remains an unprofessional and inept justice system, impunity for sexual violence is the norm. And like his father before him, Yadav empowers local, male-dominated councils that employ problematic tribal law as a means to counter sexual assault. Meanwhile, Yadav's party has opposed provisions that would advance the status of women, campaigning against tougher anti-rape laws passed by Parliament after the 2012 Delhi rape.

Sexual violence is particularly pervasive against Uttar Pradesh's Dalits, a historically marginalized group of roughly 35 million that ranks low on India's caste system hierarchy. Part of this could be a revenge tactic, activists say, since the former government under Mayawati, a Samajwadi Party rival and a Dalit woman herself, invested specifically in Dalit leaders, fueling tension among the other castes, like the Yadavs, the chief minister's caste (and namesake).

According to Askari Naqvi, a human rights lawyer based in Lucknow, sexual violence is often also a statement of caste power and revenge. "Although you voted for [a certain candidate], don't you dare think you are equal or anything," he said. "The dominant castes are feeling very, very powerful. So they are trying to show Dalits that they cannot claim some kind of equality. Especially with these hangings," he said, referring to the highly publicized Badaun case in May. The Yadav-caste police officers in the village initially refused to register the murder case, allegedly even threatening to murder the Dalit girls' family members, according to local media reports and investigations from human rights groups. "Because she was born as a Dalit she doesn't have a right to say no to rape or the use of her body or violence against her body," said Vimal Thorat, a leader of the National Campaign on Dalit Human Rights, an advocacy group that fights against caste discrimination. "And if she raises her voice she will be killed."

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Chief Minister Yadav's inability to stem pervasive sexual violence in his state seems born more out of weakness than malice. With no concrete efforts to clean up law enforcement, build judicial capacity, or combat the caste system that divides communities across the state, his efforts seem to address the symptoms and not the disease. "The chief minister needs to set an example, to say we are ending this now -- we are absolutely not going to make any more excuses" for sexual violence, says Krishnan of the All India Progressive Women's Association.

Yadav's party offers little hope for a more effective and humane public debate on rape, insisting instead that the state has been made a scapegoat on the national scene. "This is a problem for everyone in the society, but this doesn't mean we're worse off," said Chaudhary, the Samajwadi Party spokesperson. "People want to make this political instead of social. There is investment from the government on this but every time it gets sidelined by politics."

Yadav has at least begun to acknowledge that violence against women is a problem in his state. After a 38-year-old woman was gang-raped in June, he told AFP that "the government must sincerely work to make sure such incidents do not happen." He has made small efforts to support women, establishing a safety hotline for women to directly reach law enforcement without leaving their homes and proposing a martial arts program for girls across the state. But until the costs of inaction outweigh the benefits of his half-hearted approach, little is likely to change for women. "The challenge is to create an alternative discourse that makes it politically costly to be sexist," Krishnan says. In the Yadavs' Uttar Pradesh, that will be very difficult.