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Transitional Justice and the Right to Know the “Truth”: the Case of Kosovo in a Comparative Perspective

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Transitional Justice and the Right to Know the “Truth”: the Case of Kosovo in a Comparative Perspective Department of Political Science Master’s Degree in International Relations – Major in Global Studies Course of Comparative Public Law Transitional Justice and the Right to Know the “Truth”: The case of Kosovo in a Comparative Perspective. Prof. Cristina Fasone Prof. Valentina Gentile SUPERVISOR CO-SUPERVISOR Vittoria Reccagni - 633302 CANDIDATE Academic Year 2018/2019 TABLE OF CONTENTS Acknowledgements Introduction…………………………………………………………………………………………1 Chapter One: Transitional justice: the politics of memory Introduction…………………………………………………………………………………………8 1.1 Transitional Justice and democracy: the pillars of transitional justice………………………….13 1.2 Actors and challenges of transitional justice…………………………………………………….20 1.3 The right to know and the mechanisms of transitional justice: from Tribunals and Truth Commissions to Amnesties and Reparations……………………………………………………28 1.3.1 Hybrid Tribunals…………………………………………………………………………….32 1.3.2 Truth Commissions: strengths and weaknesses………………………………………….….34 1.3.3 Achievements and limits of Truth Commissions and Case studies………………………….36 1.3.4 Case study: The Truth and Reconciliation Commission in South Africa……………………37 1.3.5 Case study: The National Unity and Reconciliation Commission in Rwanda………………39 1.3.6 Amnesties and Reparations………………………………………………………………….41 1.3.7 The ethic of political reconciliation…………………………………………………………45 Final Remarks……………………………………………………………………………………...48 Chapter Two: An overview of Kosovo’s Constitutional system 1 Introduction……………………………………………………………………………………...49 1.1 Historical background…………………………………………………………………………...50 1.1.2 The Consequences of war……………………………………………………………………..55 1.1.3 Organization of the Judicial System…………………………………………………………..57 2. Constitutional transition in Kosovo: from 1991 to 2008…………………………………………58 2.1 The Constitutional Court of Kosovo…………………………………………………………….63 2.2 Constitutional Rigidity in Kosovo………………………………………………………………68 3 Institutional Reforms and Vetting Process in Kosovo…………………………………………….71 3.1 Truth-Seeking initiatives in Kosovo……………………………………………………………..74 4 War crime trials……………………………………………………………………………………79 Final Remarks……………………………………………………………………………………...83 Chapter Three: Transitional Justice in a comparative perspective Introduction……………………………………………………………………………………….84 1. Comisiones de la Verdad: a recurring experience in Latin America……………………………85 1.2 Argentina………………………………………………………………………………………..87 1.3 Chile…………………………………………………………………………………………….88 1.4 El Salvador……………………………………………………………………...………………90 1.5 Peru…………………………………………………………………………………………...…92 1.6 Panama……………………………………………………………………………………….....98 1.7 Common characteristics and general conclusion on the Truth Commissions in Latin America......................................................................................................................................105 1.8 Past, present and future of the Truth Commissions: between evolution and instability………107 1.9 Non-Official Commissions……………………………………………………………………112 1.9.1 Bolivia……………………………………………………………………………………..113 1.9.2 Brazil………………………………………………………………………………………116 1.9.3 Colombia…………………………………………………………………………………..118 1.9.4 Paraguay…………………………………………………………………………...………119 1.9.5 Final remarks on the first part of the chapter……………………………………….…122 2 Kosovo and its soon-to-be Special Court……………………………………………...………123 2.1 The participation of the European Union in the Transitional Justice Strategy of Kosovo…….124 2.2 Towards the establishment of a Truth and Reconciliation Commission: a controversial path.............................................................................................................................................126 2.3 Final remarks on the second part of the chapter…………………………………………..132 Chapter Four: Truth Commissions: are they always effective? 1 General remarks……………………………………………………………………………….134 2 Towards the set-up of a Truth Commission in Kosovo: a window of opportunity? Guidelines for success……………………………………………………………………………………………..141 3 Risk factors and potential weaknesses of Truth Commissions……………………………...…..146 Final remarks…………………………………………………………………………………….149 Conclusion…..……………………………………………………………………………………151 Bibliography………………………………………………………………………………………155 Executive summary………………………………………………………………………………169 Introduction The ever-growing interest in human rights issues of the last decades, brought to pose the attention to the causes and consequences of situations where gross violations of human rights occurred. This is what transitional justice seeks to address. In a video report published last 23rd September, created by the International Centre of Transitional Justice and called “Side by Side with Victims”, the Deputy Executive Director of the Centre, A.N. Roccatello, states that the main aim of transitional justice is to rebuild a society, institutions, trust and respect of individuals’ rights, that witnessed massive violations of human rights. So, in the wake of such moments, the first questions that a society is called to answer is “How can we move forward? How can we restart to live together again after a huge period of hate?”. The answer, somehow, is provided by transitional justice tools, namely through the creation of new measures of justice. Therefore, one of the biggest success with this regard is the acknowledgment by the society that what happened should not happen again. In this video, the attention is focused on the testimonies of victims of human rights violations coming from different realities, like Yemen, Nairobi, Uganda, Sierra Leone, Tunisia and Colombia, that, in a way, represent the latest cases of intervention through transitional justice means of the last years.1 The term “transitional justice” refers to a concept of justice that can be found in societies that experienced periods of political transition that generally come after the end of military dictatorships or totalitarian regimes in order to restore peace, freedom and a democratic government.2 Overall, during these hard periods in the course of history, societies experience human rights violations on large-scale, genocides, persecutions and repressions, broadly speaking these periods produce a huge quantity of war crimes. When 1 ICTJ, Side by Side with Victims, available at https://www.ictj.org/multimedia/video/side-side- victims, accessed 25th September 2019. 2 Teitel, R.G., Transitional Justice, Oxford University Pres, 2002. pag.16. 1 the regime changes, the new established government is immediately called to fix the atrocities committed by their predecessors. Likewise, transitional justice includes a set of judicial and non-judicial measures for redress to mass violations of human rights within a society. These set of “special” measures do not want to substitute traditional justice tools, but in this specific context, the ordinary justice system probably wouldn’t be able to implement an adequate answer. The central themes of transitional justice, though, are basically a combination of an application of human rights policies, posing the attention on the acknowledgment of the dignity of citizens and, overall, of human beings. Among the main actions that transitional justice provides, the most significant and notable are: the support for the compliance with the rule of law, the right to access to justice, the promotion of reconciliation of former enemies and to recreate and rebuild trust in institutions.3 The above-mentioned actions are practically implemented through criminal prosecutions, truth-seeking processes, reforms and reparations. These measures shall not be considered as mutually exclusive the one with the other, but as a set of complementary measures that, according to the context, can be all applied. When a society experience a hard moment in history, namely a gross violation, the consequence is that there is a huge sense of vulnerability fragileness of the society that shall be filled with an adequate program of recovery. The result is an unstable and under- resourced society. In particular, one of the biggest shortcoming is, with no doubt, a very scarce system of protection of human rights. With this regard, transitional justice and its mechanisms pave the way for a real and tangible improvement and implementation for the protection of human rights and human dignity. Following this line of thought, what transitional justice aims to obtain is a double effect that is both oriented to the past than to the future. The ultimate intention is to deal with the past in order to move to a better future by avoiding the repetition of the atrocities 3 ICTJ, What is Transitional Justice? Available at: https://www.ictj.org/about/transitional- justice , accessed 13th September 2019. 2 experienced in the past. This ambitious aim is not a utopia, and this was proved by the positive results that were obtained in the course of history, especially thanks to the public processes in front of the Truth Commissions. In this sense, there was a decisive contagion effect that allowed closer countries to take into consideration and eventually to undertake actions of transitional justice in the aftermath of a hard period. This is, for examples, what is easy to notice in Latin America, since the establishment of Truth Commissions were a recurring experience for most of the countries that shared a common period of hard military dictatorship and abuses. The implementation of these mechanisms helped and facilitated their path and transition to democracy. Among all the actions that can be taken in the framework of transitional justice, the most recurrent
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