Interview with Marek Antoni Nowicki, former international ombudsman in Kosovo
(Mr. Nowicki's CV )
 

Corruption and makeshift arrangement
(In original: Provisorium (Ger) – temporary solution, makeshift solution, stopgap, provisional arrangement)

"The idea was for all institutions of significance to be under control, that is, to avoid having Ahtisaari saying one thing one day and the ombudsman saying something else the next. The essence was to prevent dissonant information from Kosovo with respect to human rights and standards," Marek Nowicki told "Vreme", commenting on the reason for eliminating the international ombudsman

By Slaven Kranjc

UNMIK DIDN'T LIKE THE OMBUDSMAN'S CRITICISMS: Marek Nowicki

At the beginning of the year the mandate of former international ombudsman for Kosovo Marek Antoni Nowicki was not extended. With his departure the institution of ombudsman lost its international character and the general international community has been prevented from hearing about human rights abuses.

"There are two kinds of problems involved," Nowicki told "Vreme". "One is the problems of everyone who lives in Kosovo, the other are specific problems of the non-Albanian population. The first problem is the nonfunctioning of the justice system, which we can call legal chaos because there is still no justice system, no one knows what laws are in effect, and you have no one to ask what law should be applied in a concrete situation. Former Yugoslav laws and UNMIK decrees are in use and this leads to a legal ambivalence among the people. Moreover, there are also problems with the way institutions are working, first of all, the justice system, which this can be considered the biggest problem in Kosovo, as Kai Eide also stated in his report. Specific problems for non-Albanians, primarily Serbs and Roma, are freedom of movement, safety and everything following from this."

"VREME": A large number of ethnically motivated crimes have been committed during the UN protectorate in Kosovo. Do you have information how many perpetrators have been found and sanctioned?

MAREK ANTONI NOWICKI: Very few. In Kosovo police can find information on who committed a crime but they can't get evidence and witnesses. No one wants to testify because testifying in Kosovo, not just about ethnically motivated crimes, is very dangerous. The consequences of testifying against someone can be horrendous. Furthermore, the short mandates and constant rotation of international police are yet another, crucial factor of ineffectiveness, as is the closed nature of Kosovo society. It is difficult to establish cooperation with the population, especially in cases of ethnically motivated crimes where there is a complete shutdown of cooperation.

Does this create a sense that crime is permitted?

Yes. On the one hand, there is the problem of the ineffectiveness of organs that are supposed to prevent this, on the other, there are also objective difficulties. One of the problems of the international police is that they are people coming from different environments and cultures who don't really have a good understanding of the environment (in Kosovo). On the other hand, the Kosovo police lacks experience. Additionally, they live among the people who are involved in crime, they themselves are under constant pressure and in real danger. When all these factors are put together, the results can't be different than they are.

How many participants in the March violence were prosecuted by the Kosovo justice system?

A few of the minor perpetrators were sanctioned but not the ones who committed the serious crimes, let alone the ones who organized the expulsions. The statistics look impressive but when one looks at them more closely, it is obvious they are only the minor perpetrators.

Why is that?

Without getting into whether there was any will to sanction those crimes, which would involve speculation and I have no evidence to back that up, some of the objective circumstances need to be taken into account. In mass events the focus is on prevention and it is difficult to collect evidence at the same time. What's left afterwards is witnesses and then we go back to the story about witnesses in Kosovo.

Were police forces and KFOR up to the task on March 17?

The real question is how was it possible for all this to escape a large number of various UNMIK and KFOR services concerned with security as well as a large number of intelligence agencies from various countries. Kosovo is a land with the highest number of intelligence agents per capita in the world; surely they must have known what was in the works. They are responsible for following the security situation in Kosovo on an hour-by-hour basis. And what happened? They knew nothing. That's incredible. We can't help but wonder whether they were taking their job seriously.

It's interesting that in spring 2004 I had information of the existence of a plan to reduce the number of KFOR troops by the beginning of July, leaving about 2,000 troops still deployed in Kosovo and making their presence symbolic.

Taking into account that these are serious security agencies, should we doubt their objectivity?

Some things cannot be explained rationally. For example, two weeks before March 17 I sent a letter to the KFOR commander, General Kammerhof, asking for an explanation for the removal of security checkpoints in some Serb enclaves, questioning the reasons and other possible security measures for these people, who lived in fear. At first they didn't want to answer at all and they were displeased with the fact that the information had been released to the public; then they answered that the situation was improving, that there is a Kosovo police that is well-trained and capable of protecting them, and that people who feel unsafe should ask for cell phones from the municipality so they can report when they are in danger.

At that time I visited several Serb locations where KFOR checkpoints were removed, among them Vucitrnska Slatina. It was clear to the people with whom I spoke there that the removal of the checkpoints was to be their end. A man with whom I spoke told me, "Sir, there are no arguments for the removal of the checkpoints; we know that, we live here."

The first place I visited after March 17 was Vucitrnska Slatina. I wanted to check what I had been told two weeks earlier. Everything was completely destroyed, I found just two living beings there: one was (the man's) dog, who recognized us because we had had coffee and honey there just two weeks ago, and the other was an Albanian from nearby who was taking away looted items. It all seemed symbolic: the torched houses, some of them still smoldering, the abandoned dog among the ruins, and the Albanian looter.

Can people whose property has been destroyed or usurped during the period of the international protectorate realize their right to compensation?

There is no law that would regulate this area and because of this there is no legal possibility of realizing compensation for destroyed or usurped property. After March 17 the Kosovo Interim Government passed a decision to rebuild destroyed houses but that decision was not based on law, it was some sort of political compensation. Compensation must be based on law and we have pointed out this problem several times. There are more than 14,000 property cases initiated by Serbs with the Kosovo justice system.

On August 2004 justice director Monagan sent a letter to all the courts in Kosovo to void all those cases until a law is passed. Since then to this day nothing has been done. We have publicly asked what was happening with this several times later on but we never received a response. I suspect it will be drawn out until the status solution.

Over 200,000 non-Albanians have left Kosovo, in seven years a very small number has returned. What is the reason for this?

That doesn't surprise me. UNMIK's stories about major and mass returns have not yielded any results. Steiner spoke about megalomaniac projects involving the return of 90,000 Serbs to Kosovo but they never materialized. One of the reasons is status, because the situation is unclear. To some extent this also influences expelled Serbs, who are in (central) Serbia with their families and waiting to see how events will unfold. On the other hand, the Kosovo government and UNMIK have failed to provide conditions for returns, by which I mean primarily freedom of movement, safety and material conditions for living.

Let's take the return project to Belo Polje or Brestovik as an example. In 2003 they made some sort of houses there and called on people to return but they did nothing to make it possible for them to survive, to organize some sort of normal life, to work their fields... Their land has been usurped and they have no source of revenue and consequently, no prospects, and nothing has changed to this day.

My last visit to Belo Polje was recent. During all this time, some humanitarian organization has been bringing them food three times a day - and that's supposed to be a return. What is that supposed to be?

I was at a meeting in Brestovik; these people came, their houses have been built but nothing at all outside the houses themselves, and this is in a village. Formerly they had a little land they used to work but it wasn't enough so they also worked in Pec in the factories - farmers and laborers at the same time. Now they have no access to the factories, the land has been usurped, and prospects for return can't be built on humanitarian aid. That means that the only difference between someone in a collective facility in (central) Serbia and the people in Brestovik or Belo Polje is that the latter are in Kosovo, in their ancestral homes, but that's not a return.

Could Serbs who used to work in socially owned companies get compensation from privatization?

That's a serious problem, the Law on Privatization has a lot of deficiencies from the aspect of the ombudsman, as I pointed out in my last intervention before my departure. Namely, the Law states that the beneficiaries of funds from privatization can be employees who were employed at the time the Law was enacted and those former employees who can prove that they would still be working in the same company if not for discrimination. Basically, a Serb who was employed prior to 1999 in a company has to prove that he did not come to work because of discrimination.

And how could he prove that?

It's impossible; no one can prove such things. On the basis of EU Law an employee who complains of discrimination has the sole obligation of filing a claim with cause. After that, it is the company that must prove that there was no discrimination, that is, the burden of proof is on the company, not on the employee. For example, the Pec Brewery would need to prove that these people did not come to work for other reasons, not because they were discriminated against. We have underscored that the privatization process (in Kosovo) is contrary to the laws of the European Union, although it is being implemented by an agency of the EU. It is absurd that in this case the EU is not respecting one of the basic principles of its own legislation.

To what extent is Kosovo society corrupt?

Corruption and organized crime are among the biggest problems. Even Kosovo officials will say that. That is the consequence of everything that has happened in the last fifteen or so years in Kosovo and its surroundings and, unfortunately, that is something that cannot be changed overnight. When the balance in society tips in favor of crime then it is very difficult to return to normalcy because the other side has no power. All the power is in the hands of crime: money, politics, etc.

How much has UNMIK contributed to this situation?

Certainly an administration of this type with its provisional character and provisional cadres are conducive to it because there is no continuity. Everything is provisional, there is no power in institutions that would implement laws, and I am not surprised that there are structures that want to keep it that way. UNMIK's problem is that it tolerates such things for a variety of reasons, including political ones. As an institution we, too, were faced with such problems, especially when some powers were transferred to local organs. We expected that UNMIK would help us but nothing came of it. As far as the involvement of UNMIK officials in criminal activities and corruption is concerned, we had some information and criminal charges have been filed against some in their respective countries. It is difficult to talk about the degree of corruption of the UNMIK administration without some serious analyses. After all, all situations that are provisional, that are a temporary situation, are conducive to those seeking to abuse them, and Kosovo since 1999 has been a temporary situation in every sense.

What was cooperation with UNMIK like during your mandate?

First, we asked all factors to respect our independence. The responsibility of the ombudsman is to criticize the work of UNMIK as well and they didn't like that. The problem was also that they didn't take our comments and recommendations into consideration. They, on their part, criticized us for not taking into account some political rationales and in that sense considered us disloyal, that is, we didn't act as if we were playing on the same team.

Were you satisfied with your mission?

In one respect, yes, in another, no. The organization showed that it could do something even under such circumstances. The population accepted us as their institution and that relationship will remain into the future. The problem of the institution of ombudsman in Kosovo today is that it has been left without international authority. That's gone and now it is a local institution. As an international ombudsman I was able to address the international community and that was of great importance, even UNMIK was aware of that. The present institution is local and has far smaller capabilities, today it can only address the local community and the Kosovo Assembly.

Your mandate was not extended this year. What are the reasons for that?

I think that the main reason is because 2006 is the year of status resolution, that is, the year of the delicate political process in which a decision on status is to be made. And the idea was for all institutions of significance to be under control. So there could not be any sort of independent body, to avoid having Ahtisaari saying one thing one day and the ombudsman saying something else the next. This was done according to the system of transfer of powers to Kosovo institutions, and the essence was to prevent dissonant information from Kosovo with respect to human rights and standards.

What do you think of the idea of resolving the status of Kosovo by the end of the year?

In my opinion, it's a mistake to set deadlines. A solution will be difficult to achieve and will require quite a bit of time, and that is the solution according to which everyone who wants to live in Kosovo must have conditions for a normal life and (future) prospects. I think that this is possible to resolve only within the process of ascension to the EU. As well, I believe that the only way for the Serb community to survive in Kosovo is for them to get some sort of special status within the framework of decentralization. I don't see this being resolved in any other way.

How would you characterize the UNMIK mission?

It's an experiment. Several times I asked myself the question, taking account the real situation in Kosovo, whether UNMIK could have achieved better results, and I think that it could have. The real question is whether in 1999 there was a clear vision of what they wanted to do, and I'm not sure there was.

All statements by Mr. Nowicki were translated from Serbian as published by "Vreme"
http://www.kosovo.net/news/archive/2006/September_15/1.html

Other texts and statements by Marek Antoni-Nowicki:

IWPR - Comment: Tough Times for Kosovo's Non-Albanians
http://www.iwpr.net/?p=bcr&s=f&o=155718&apc_state=henibcr2004

Defending Human Rights in Kosovo: Interview with Marek Antoni Nowicki, Balkanalysis.com
http://www.balkanalysis.com/?p=520

Marek Antoni Nowicki - Serbs Cannot Survive In Kosovo, Blic daily
http://www.mfa.gov.yu/FDP/blic_02042002.htm

Marek Nowicki: Another in a series of ethnic cleansing, Politika daily (on March 2004 riots)
http://www.kosovo.net/news/archive/2004/March_31/2.html

Endgame Return - Will 2005 be another "year of returns"? - Danas daily
http://www.ex-yupress.com/danas/danas130.html