interview by Slaven KRANJC
"There are two types of problems" Nowicki says in a conversation with Vreme. "One type of problems affects all residents of Kosovo, while the other sort affects only the non-Albanian population. The first category includes lack of functioning of the legal system, since it is unclear which laws apply and there is no one who could interpret which laws apply in which situation. There are former Yugoslav laws and UNMiK decrees, and all that leads to legal uncertainty. Besides, there are problems in the functioning of institutions, above all the judiciary, which is definitely the biggest problem in Kosovo, as Kai Eide mentioned in his report. Specific problems that affect non-Albanians, above all Serbs and Roma, are lack of freedom of movement, security, and everything that that implies".
VREME: Under the UN protectorate numerous ethnically motivated crimes were committed in Kosovo. Do you know how many of those crimes were solved, and how many perpetrators have been sentenced?
MAREK ANTONI NOWICKI: Very few. In Kosovo the police can obtain information about the culprit, about who committed the crime, but they can almost never obtain evidence and witnesses. No one wants to testify since testifying in Kosovo, and not only in connection with ethnically motivated crimes, is extremely dangerous. Consequences of testifying against someone can be terrible. Besides, short terms of duty and continuous rotations of international police officers are another and very important element of inefficiency; however, the closed nature of the Kosovo society is also a very important factor contributing to the inefficiency of the police. It is difficulty to cooperate with the population, especially in ethnically motivated crimes, in which cooperation simply does not exist.
Does that create the atmosphere of impunity, in which crimes are simply tolerated?
Yes, it does. On the one hand there is the problem of inefficiency of institutions which are supposed to prevent crimes, while on the other hand we have objective difficulties. The problem with the international police is that they are people who come from different environment and culture and simply do not understand the environment they are in. On the other hand, the Kosovo Police is inexperienced. Besides they live among people who are involved in crime, they are under constant pressure and their lives are literally in danger. When you put all of that together, results could not have been different.
How many of participants in March 17, 2004 disturbances were prosecuted by the Kosovo judiciary?
Only a few low level participants were prosecuted and sentenced. Those who committed serious crimes, let alone those who organized the attacks and expulsion, were left alone. Statistics looks impressive, but if you look a bit closer you'll realize that only small fry was prosecuted.
Why?
Let's put aside whether anyone was willing to punish those crimes, since that would enter the domain of speculation. There are some objective circumstances. In mass disturbances the focus is on prevention and it is difficult to collect evidence at the same time. Lacking the material evidence information can only come from witnesses, and then we go back to what we've just discussed - the problem of witnesses in Kosovo.
On March 17, 2004, did KFOR and police forces react appropriately?
First, we must ask how it was possible that so many UNMiK and KFOR security services and so many intelligence services from various countries failed to predict disturbances. Kosovo is the region with the largest number of spies per capita and they had to be aware that something was being prepared. Their task is to monitor security situation in Kosovo on an hourly basis. And what happened? They did not know anything. That is unbelievable! We must ask if they took their job seriously.
It is interesting that in the spring of 2004 I had information about plans to reduce KFOR forces to about 2,000 soldiers, so that the foreign military presence would become symbolic.
Given that the mentioned intelligence services are competent organizations, could we doubt their true intentions?
Some things defy rational explanation. For example, two weeks before March 17 I sent a letter to KFOR commander General Kamerhoff requesting his explanation regarding the removal of checkpoints in some of Serb enclaves. I asked the General why the checkpoints had been removed and if there were other ways to improve security for those people, since they were afraid. First KFOR refused to reply. They were unhappy that the information about the removal of checkpoints had become public; later they replied that the security situation was improving and that Kosovo Police was trained and capable of providing the necessary protection; also, people who did not feel safe were supposed to ask for mobile phones from municipal authorities and to call if they were in danger.
At that time I visited some of Serb villages in which KFOR checkpoints were to be withdrawn, among other the village of Vucitrnska Slatina. I talked to some villagers and they were aware that the removal of the checkpoint spelled out the end of their presence in the village. One of them told me: "Sir, there is no valid argumentation for the removal of the checkpoint; we know that because we live here."
The first village I visited after March 17 was Vucitrnska Slatina. I wanted to check if what I had been told two weeks earlier was correct. The village had been totally destroyed, razed to the ground. I encountered only two living creatures; one was a dog of the man who had talked to us two weeks earlier; the dog recognized us since we had spent some time with his master, drunk coffee and eaten honey; the other one was an ethnic Albanian from a nearby village of town; he was carting away looted property from the village. It struck me that the scene was full of symbolism. Burnt houses with smoke still rising from some of them, an abandoned dog and an ethnic Albanian looter.
Can persons whose property was destroyed or usurped under the international protectorate obtain a compensation for their losses?
There is no legal measure that would regulate that issue and consequently there are no legal avenues for obtaining compensation for destroyed or usurped property. After March 17, the Temporary Administration of Kosovo adopted the decision to rebuild destroyed houses, but that decision was not based on any existing laws. Instead it was some sort of political compensation. The compensation must be based on law and we have on several occasions drawn attention to that problem. There are more than 14,000 property disputes initiated by Serbs in Kosovo courts.
In August 2004, director for the judiciary, Monagan [original spelling of the name uncertain], sent a memorandum to all courts in Kosovo to stop processing those cases until a law regulating the issue is adopted. Since then nothing has been done. Later, we made public enquiries into that matter on several occasions but never got a clear answer. I suspect that the whole matter will be delayed until the resolution of the status.
More than 200,000 non-Albanians have left Kosovo, while over seven years of international administration only a small number has returned. Why?
I am not surprised. UNMiK's stories about great and mass returns have not produced any results. Steiner talked about megalomaniac projects that were supposed to bring back 90,000 Serbs to Kosovo, but nothing came out of that. One of the issues is that of the status, since the situation is unclear. That to some extent influences expelled Serbs. They are in Serbia waiting to see how the situation will develop. On the other hand, the Government of Kosovo and UNMiK did not provide conditions for return, above all freedom of movement, security and basic living conditions.
For example, let's consider the project of return to the villages of Belo Polje or Brestovik. In 2003 some houses were built there and people invited to return, but they were not provided any conditions needed for survival and to organize a semblance of normal life. For example they are unable to work their land. Their fields have been usurped and they have no conditions to earn for living. Consequently their situation is hopeless and nothing has changed between 2003 and today.
My latest visit to Belo Polje was quite recent. All of this time some humanitarian organizations has been bringing three meals a day to the returnees in Belo Polje. And that is supposed to be an example of sustainable return?
I attended a meeting in Brestovik. The villagers returned to their village, their houses have been rebuilt, but there is nothing apart from the houses. The villagers used to have some land, which they worked, but that was not enough to survive so that many of them had jobs in the nearby town of Pec [Peje in Albanian]. They were both farmers and factory workers. Now they do not have access to jobs in Pec, while their land has been usurped. The only remaining resource is humanitarian aid. But there is no hope for someone surviving on humanitarian aid. That means that the only difference between people living in centers for displaced persons in Serbia proper and those living in Belo Polje and Brestovik is that the latter live in Kosovo, in their villages, but that does not constitute viable return.
Will those Serbs who were employed by state owned companies be entitled to some compensation from the privatization process?
That is a serious problem. The privatization law has serious flaws from ombudsman's point of view. I drew attention to those flaws in my last intervention before the departure from Kosovo. Namely, the law states that those workers who were employed at the time the law was enacted or could prove that if it weren't for discrimination they would still work for the same company are entitled to receive compensation from the privatization fund. Therefore, a Serb who worked for some company until 1999 must prove that he stopped coming to work because of discrimination.
How could he prove something like that?
That is impossible. No one can prove something like that. Based on EU legislation workers alleging discrimination only have the obligation to demonstrate possible grounds for discrimination. After that the company must prove that there was no discrimination. Therefore the obligation of proof is on the company, not on workers. We stressed that the privatization law is contrary to EU legislation, while the privatization itself is implemented by an EU agency. It is absurd that in this case the EU does not respect one of the basic principles of its legislation.
To what extent is the Kosovo society corrupt?
Corruption and organized crimes are among the biggest problems. Even Kosovo officials agree with that statement. That is a consequence of everything that has taken place in Kosovo and in the region over the last fifteen years and, unfortunately, that cannot be fixed overnight. Once the balance of power in the society shifts in favor of crime it is very difficult to get back to normal, since the other side lacks power. Everything is controlled by criminals - money, politics...
To what extent did UNMiK contribute to such a situation?
There is no doubt that such administration with its temporary character and temporary officials provides suitable ground for that, due to lack of continuity. Everything is temporary and there are no strong institutions that would implement laws. I am not surprised that some structures want to keep such a situation. The problem with UNMiK is that it tolerates such things, driven by various motives, including those of political nature, of course. As an institution we have also faced these problems, especially after some powers were transferred to local institutions. We expected that UNMiK would assist us, but they did not. As far as involvement of UNMiK officials in crime and corruption, we had some information, and some of them were indicted in their countries of origin. It is difficult to discuss the degree of corruption inside UNMiK without more serious analyses. Besides, all situations that are temporary, provisional, beg for abuse, and Kosovo has been in limbo since 1999 in every way.
How did your cooperation with UNMiK function during your tenure?
First, we demanded that all factors respect our independence. The institution of ombudsman is obliged to also criticize the actions of UNMiK, which they disliked. Another problem was that they frequently ignored our comments and recommendations. On the other hand, they criticized us for ignoring political imperatives and being disloyal in that sense. Supposedly we did not behave like team players.
Are you satisfied with what you achieved?
In some ways yes, in some ways no. The organization tried, despite unfavorable working conditions, to do something. People accepted us as their institution and that attitude will survive. The problem currently facing the institution of ombudsman in Kosovo is that it has lost its international authority. That is gone and ombudsman is now a local institution. As an international ombudsman I could address the international public and that was very important. UNMiK was aware of that. The current institution is of local character and has much more limited opportunities to exert its influence. It can only address the local public and the Parliament of Kosovo.
Your mandate was not extended this year? Why?
I think that the main reason is that year 2006 is the year in which the status is supposed to be resolved, which is a delicate political process. The idea was that all important institutions be under control, in other words to make sure that it does not happen that one day Ahtisaari says one thing, while the next day the ombudsman claims something different. The mechanism was to transfer power to local Kosovo institutions, but the motivation was to make sure there was no contradictory information coming from Kosovo regarding the issue of human rights and standards.
Your opinion regarding the push to resolve the status of Kosovo by the end of the year?
In my opinion it is a mistake to set deadlines. It will be difficult to reach a solution and a lot of time will be needed for that. The required solution must provide conditions for everyone living in Kosovo to lead a normal life and have a future. I think that that can only be resolved in the process of accession to the EU. I also believe that the Serb community can only survive in Kosovo if it obtains some sort of special status within decentralization. I do not see how that can be resolved in any other way.
How would you describe UNMiK's mission?
That is an experiment. I asked myself several times, given the actual conditions in Kosovo, if UNMiK could have done better, and I think that it could have. The most important question is if in 1999 they had a clear vision of what they were trying to achieve. I very much doubt that.