Ngritja e Zerit gathers and classifies evidence in support of claims for damages that resulted from the Kosovo war.

Without any financial support from the state, Bejta and Osaj have been helping ordinary Kosovo citizens prepare lawsuits, and have refused to give up despite the fact that every case they have prepared so far has been rejected by the courts in the country.

‘We were left at God’s mercy’

Kadri Osaj and Jahir Bejta in their law office in Skenderaj/Srbica. Photo: Dardan Hoti.

In Bejta and Osaj’s office is the case file of the Sejdiu family from the village of Qirez/Cirez in Kosovo’s Skenderaj/Srbica municipality. The family has been seeking justice for ten years for the suffering that the Serbian state caused them during the war.

Hamdi Sejdiu, now 65, was injured by Serbian troops on February 28, 1998, in the Qirez/Cirez and Likoshan/Likosane massacre, in which 24 civilians were killed.

Sejdiu said that he and other villagers were forced to lie down in front of a Serbian tank while others were killed.

“Twenty-one of us were lying in front of the tank. They stabbed me and broke five of my teeth that day. I survived with just these injuries, but we were lying in front of that tank until the massacre in Qirez was over. Four of my brothers were killed there,” Sejdiu recalled.

Two of his brothers, Bedri and Bekim, were twins, both of them students who had graduated only one day before they were taken hostage and killed.

“After this, many of us were held hostage for two months. We were released eventually – we were not killed, but they beat and tortured us. We were left at God’s mercy. During these two months as a war prisoner, I was all alone, without any other relative,” Sejdiu continued.

After his release, Sejdiu was reunited with his family, and in the months that followed, they wandered from town to town, attempting to find shelter and escape the violence and killings that were happening all over Kosovo. On June 18, 1999, after the war ended and Slobodan Milosevic’s forces pulled out of Kosovo, he returned to Skenderaj/Srbica with his family.

A few years afterwards, Sejdiu started collecting the necessary papers to request compensation from Serbia.

“All the property I had in Qirez had been damaged, burned and destroyed. Starting from the house, the tools, the granary and everything else,” said Sejdiu, who now lives off a 120-euro monthly pension he receives from the state.

However, he believes that justice will be served one day, and that Serbia will pay for the damage that it caused in Kosovo during the war.

“Considering international rights, I would expect Serbia to pay for these damages, but as far as our institutions go… [Kosovo’s Constitutional Court] has rejected us three times now,” he said.

Bejta and Osaj’s cases have always been rejected by the first-instance courts on the grounds that Kosovo’s judicial institutions have no power to bring another state to court. When their cases are rejected, the two lawyers submit complaints to the court of appeal and file requests for assessments of their case’s legality to the Constitutional Court.

The Constitutional Court has always responded negatively to these requests, however – “instead of making a decision and ascertaining the fact that constitutionality has been violated, it justifies the earlier decisions [by the first-instance court”, said Bejta.

This has caused Bejta and Osaj to accuse Kosovo’s institutions of not having the will to assist in the process of seeking damages from Serbia.

They also argue that the claim that Kosovo’s judicial institutions have no power to bring another state to court is incorrect, and insist that Kosovo’s Law on Contested Procedure offers a legal basis to sue the state of Serbia in Kosovo’s courts.

They suggest that a legal summons could be delivered to Serbia via Belgrade’s Kosovo liaison officer at the EU mission in Pristina. “It is foreseen by the law that you can take [a state] to court, but they should be informed that they are being sued,” said Osaj.

‘Serbia admitted guilt’

The Bugujevci family before the war, with Saranda Bugujevci in the centre. Photo courtesy of Saranda Bugujevci.

For Saranda Bogujevci, a survivor of a massacre by Serbian paramilitaries in the village of Podujeva/Podujevo on March 28, 1999, no money will ever compensate her for the pain she is still suffering over the loss of her relatives who were killed that day.

Bogujevci lost her mother, grandmother and two younger brothers, as well as her paternal uncle’s wife and daughter. Despite this, she had the courage to travel to the Serbian capital Belgrade to testify about the crimes. Belgrade’s Basic Court awarded her family 200,000 euros in compensation.

The trial began in 2003, when she was just 18 years old. She remembers how, at the end of her testimony, she was asked if she wanted to continue the court case for compensation.

“When they asked me that question, it was very offensive to me. I remember that I was revolted,” said Bogujevci, who is now an MP for the Vetevendosje (Self-Determination) party.

She said that she only understood the importance of the court’s ruling later, after Serbia in 2007 jailed five members of the Scorpions unit, which operated as part of the Serbian Interior Ministry, for their role in the deadly attack in Podujeva/Podujevo.

Family members of the 14 women and children murdered by the Scorpions fighters filed a lawsuit against Serbia for compensation, and won their case in 2016 – the first of its kind, according to the Belgrade-based Humanitarian Law Centre NGO.

“I was very young and [initially] I did not understand what this whole process meant. Our family’s case is the first in which the [Serbian] state took a decision to award reparations, which means that they admitted guilt for the war crimes committed by them,” Bogujevci said.

The obligation of the Serbian state to provide compensation to victims of human rights and international humanitarian violations, which derives from the international human rights conventions that Serbia has ratified, means that the state is responsible for the damage caused by its troops.

In Serbia itself, there are three mechanisms which victims can use to seek redress.

Firstly, there are procedures through which people can acquire the status of a civilian victim of war, which guarantees certain benefits – although Serbia does not define the 1998-99 Kosovo war as a war, but as an internal armed conflict within Yugoslavia.

Secondly, civil lawsuits that can be brought to seek compensation from the Serbian state.

Finally, there is a judicial mechanism for exercising the right to reparations. This mechanism is activated by filing a request for restitution while a criminal process is ongoing, but since Serbia’s War Crimes Prosecution Office was established in 2003, it has not been used once.

According to the Humanitarian Law Centre, hundreds of individual compensation claims have been filed as civil suits against Serbia, either through the HLC or using private lawyers.

“From 2000 until now, the HLC has represented over 1,000 victims of war crimes, torture, illegal detention, forced recruitment and other human rights violations committed by Serbian forces in Bosnia and Herzegovina, Croatia, Serbia and Kosovo in indictment charges against the states of Serbia, Montenegro and Kosovo,” said Meris Musanovic, a legal analyst at the HLC.

Of these cases, between 2006 and 2010, the HLC filed 52 lawsuits against Serbia, seeking compensation for 188 war victims in Kosovo.

‘War damage cost Kosovo 22 billion euros’

Smoke rises from burning houses as the Kosovo village of Seqishta/Seciste is hit by Serbian tanks in March 1999. Photo: EPA/LOUISA GOULIAMAKI.

Muhamet Mustafa, a senior adviser at the Riinvest Institute think-tank in Pristina, was the coordinator of the economic affairs team of Kosovo’s delegation to the negotiations over its final status in Vienna in the mid-2000s.

“The team of experts I led at the time made an assessment of the war damage in different sectors, and that cost reached over 22 billion euros,” Mustafa said.

The sum includes damage to property, stolen goods, losses of savings and pensions and other costs to Kosovo’s budget, he explained.

Mustafa argued that if relations between Belgrade and Pristina are to be normalised, Serbia must agree to pay compensation.

“Now of course to establish reconciliation and to see that Serbia really wants to leave Slobodan Milosevic’s policies behind, it should be ready to settle the accounts and [compensate for] economic damage to private property and other damage caused to Kosovo through its governance and the war of extermination that it waged against [Kosovo] Albanians,” he said.

‘Last chance to agree on reparations’

Lawyer Jahir Bejta in his office. Photo: Dardan Hoti.

Furtuna Sheremeti, who is working on PhD about state crimes and compensation at KU Leuven, a university in Belgium, and is also a professor at the University of Pristina, said the international community has tried to help document and prosecute war crimes by creating and funding international agencies and tribunals.

But despite this, Sheremeti said that very little has been done so far at any level – international, regional or domestic – to assess the damage caused by state crimes and to understand more about the reparations needed for the victims.

She also said that the final round of the EU-mediated dialogue between Kosovo and Serbia to normalise relations was the last moment to focus on reparations during the talks in Brussels.

However, she cautioned that Kosovo’s state institutions are not ready to seek reparations from Serbia because “a genuine lawsuit needs to gather accurate and genuine data, which is not being done by the office of the president or the prime minister, nor by any state institution in Kosovo”.

Heidi Matthews, assistant professor and co-director at the Jack and Mae Nathanson Centre on Transnational Human Rights, Crime and Security at York University in Canada, said meanwhile that if Kosovo asks for reparations during the EU-mediated dialogue, Serbia might demand something in return.

“Kosovo and Serbia are currently negotiating Serbia’s recognition of Kosovo as a politically independent and sovereign state. It is reasonable that under these conditions Serbia might ask Kosovo to downplay claims for reparations in exchange for Serbian recognition,” suggested Matthews.

Kosovo President Hashim Thaci proposed in 2016 to bring a genocide lawsuit against Serbia at the International Court of Justice. But experts cautioned at the time that this was highly unlikely to happen because Kosovo is not a member of the United Nations, which it must be to file a lawsuit with the ICJ.

The ICJ also does not have compulsory jurisdiction, which means that it can only hear a case if both accuser and accused agree. This would mean that Serbia would have to agree, which it probably would not.

Matthews suggested however that “allowing the International Court of Justice to have jurisdiction over the question of state reparations could potentially improve Serbia’s standing with EU member states as Serbia works toward EU accession”.

“It is a political question whether the use of international law to solve the reparation problem today would be in Serbia’s interest,” she added.

The topic of reparations has not yet been discussed during the EU-mediated negotiations between Kosovo and Serbia.

Kosovo’s former Minister for Dialogue, Edita Tahiri, who led Pristina’s team at the negotiations at one point, told media that compensation from Serbia would be discussed at the final stage of the talks.

“In the document submitted to the EU in 2014, we as the government of that time demanded that the final phase of the dialogue should also resolve the issue of war reparations; namely, through compensation for war damages in accordance with international law, as happens with all states that have been at war, when the aggressor has an obligation to pay for the damages of the war,” Tahiri said.

Kosovo’s current negotiating team leader at the talks, Shpend Ahmeti, said that that Pristina has now submitted its demand for consideration.

“At this stage, we have been asked to submit all the topics that we think should be part of the final agreement. We have clarified that one of the main points of our demands is the issue of reparations,” Ahmeti said.

“But at this stage, Brussels is not commenting on the demands of either side, it’s not saying whether this is a good or bad claim,” he added.

Kosovo is insisting that a mechanism for compensation claims be included in the final agreement with Serbia, whether in the form of an arbitration process or involving international courts.

Ahmeti acknowledged that Kosovo does not have sufficient expertise to properly assess how large these reparations should be, and said it would be best to accept an international mechanism that would offer a fair solution.

For Hamdi Sejdiu, whose four brothers were killed in a massacre by Serbian forces 21 years ago, any compensation paid by Belgrade would only be a recognition of his suffering, not a solution to it.

“Even if they gave me the entire world, Serbia could never pay for the emotional pain they have inflicted on me,” he said.

“The killing of four people, what can compensate for that? Nothing.”

This article was produced as part of BIRN’s Balkan Transitional Justice grant scheme, supported by the European Commission.