Changes to the Specialist Chambers law, Austrian expert warns EU over Kosovo’s European future

The European Union has reacted with concern to the changes that the Kosovo Assembly has approved to the Law on the Specialist Chambers, assessing that they do not align with Kosovo’s international obligations.

Austrian expert and chairman of the Austrian Committee for NATO Enlargement, Gunther Fehlinger-Jahn, spoke to “Bota sot” about this issue. He says that the independence of the judiciary and witness security must be protected, but stresses that any assessment of developments must also take into account the historical circumstances of the war in Kosovo.

According to him, the clash between Pristina and Brussels should be addressed through dialogue and constitutional and legal procedures, without being used as a reason to undermine Kosovo’s European path.

Fehlinger-Jahn states that he followed the EU’s reaction following the vote on the changes by the Kosovo Assembly with great concern. He recalls that on October 8, the European Union said that these changes contradict Kosovo’s international obligations and called for respect for the mandate, independence, and witness protection mechanisms of the Specialist Chambers.

The Austrian expert says he supports an independent judiciary, individual criminal responsibility, and witness protection, describing these as pillars of European democracies. However, he asks Europe not to forget the historical circumstances in which the debate is taking place.

“Kosovo was the victim, while Milosevic’s Serbia was the aggressor,” says Fehlinger.

He recalls that during the 1998–1999 war, Kosovo Albanians faced mass killings, persecution, deportations, and expulsions organized by Serbian and Yugoslav state forces.

Fehlinger emphasizes that international courts have established the criminal responsibility of senior Serbian and Yugoslav officials for war crimes and crimes against humanity committed in Kosovo.

“Despite the terminology that continues to be used in the historical and political debate on genocide, Europe must not confuse the fundamental distinction between a population that was subjected to massive state violence and the state apparatus that organized that campaign. This distinction remains extraordinarily important even today,” he says.

According to the expert, judicial proceedings should focus on individual responsibility and must not give the impression that Kosovo’s liberation war constitutes collective guilt.

He warns that the EU must not present Kosovo’s liberation war as the main criminal issue of the 1990s, while increasingly treating Serbia as an ordinary partner whose responsibility belongs only to the past.

“Such an approach would constitute an inversion of European justice. Brussels must view the dispute with Kosovo not only as a technical problem of contractual obligations, but also in light of the deep historical inequality that lies behind it,” declares Fehlinger.

Commenting on the approved changes, he recalls that the Specialist Chambers were created by Kosovo’s institutions under extraordinary conditions and under great international pressure.

Fehlinger explains that the voted amendments do not abolish this institution. According to him, they relate to the redefinition of certain elements of jurisdiction, the time period covered, penalties, and the linkage of cases to the initial allegations that led to the creation of the Specialist Chambers.

“It is legitimate for the elected representatives of Kosovo to discuss whether an institution established under extraordinary circumstances continues to operate within the mandate and political understanding on the basis of which Kosovo initially accepted it,” he says.

However, the expert emphasizes that Kosovo must respect its Constitution and international commitments. Any conflict that may arise should, according to him, be resolved through legal means.

“Kosovo is governed by its Constitution and by its international commitments. For this reason, any change must undergo thorough constitutional and legal review. If any provision of the new law conflicts with an international agreement between Kosovo and the EU, the matter should be resolved through dialogue, constitutional review, and negotiations, not through threats to Kosovo’s European perspective,” declares Fehlinger.

He adds that legal experts in Kosovo have rightly pointed out that changing domestic legislation does not in itself alter an international agreement, as such an agreement typically requires the consent of the parties.

Fehlinger also opposes any attempt to turn the KLA’s war into the basis of collective guilt and demands that the same standard be applied to Serbia as well.

“Brussels must not punish Kosovo for seeking equal justice. The KLA cannot be collectively criminalized. Courts judge individuals, while nations and liberation movements cannot be declared guilty as a whole simply because some individuals face criminal charges,” he says.

According to him, the same principle must be applied to Serbia as well. Europe, the expert says, must analyze whether responsibility for crimes committed by the Serbian state has received the same political attention, the same financial resources, and the same international engagement.

He emphasizes that the families of killed and missing citizens of Kosovo have the right to demand justice, while Serbia must provide full information on missing persons, archives, mass graves, and the structures responsible for war crimes.

“Reconciliation cannot be built on forgetting history,” says Fehlinger.

Regarding the EU’s approach to this issue, he proposes five main principles: protecting the independence of courts and witness security; respecting Kosovo’s democratic right to pass laws and to seek constitutional interpretation of the Specialist Chambers’ mandate; not allowing individual prosecutions to turn into collective punishment of the KLA or of Kosovo’s struggle for freedom; demanding full accountability from Serbia and its cooperation on war crimes, missing persons, and mass graves; and separating Kosovo’s European and Euro-Atlantic integration process from this judicial dispute.

The Austrian expert believes that Kosovo must not remain outside European structures, even when faced with different demands and conditions. He calls for its integration perspective to be made clear.

“The EU must understand Kosovo’s strategic importance for a peaceful and European Balkans. The five member states that still do not recognize Kosovo must recognize it. Kosovo must move quickly toward NATO and EU membership, integration into the Schengen area, and ultimately full participation in the eurozone,” declares Fehlinger.

Meanwhile, he says that Serbia cannot have a genuine European future without confronting the legacy of the Milosevic era, without accepting the reality of an independent Kosovo, and without clearly distancing itself from Russian revisionism.

Fehlinger opposes any attempt to establish a false moral equivalence between Belgrade and Pristina, referring to the 1999 war.

“Kosovo did not attack Serbia in 1999. Kosovo Albanians were being driven from their homes. NATO intervened after years of repression, escalating violence, and failed diplomatic efforts,” he says.

According to the expert, it is precisely for this reason that Europe has a special responsibility toward Kosovo. He stresses that justice must be impartial, but impartiality cannot mean turning a blind eye to history.

“Protecting the rights of the accused, witnesses, and the independence of the judiciary is fully compatible with acknowledging who was subjected to state persecution and who controlled the mechanisms of state repression,” declares Fehlinger.

In the end, he calls on the European Union to stand on the side of the victims and of democratic Kosovo, warning that the Specialist Chambers must not turn into a symbol of selective justice while Serbia avoids a similar political confrontation with the crimes of the 1990s.

Fehlinger believes that Kosovo must resolve its dispute with the EU through law and dialogue, while Brussels must treat it as an ally and future member, not as a protectorate to be permanently supervised.

“My strategic goal remains unchanged: Kosovo in NATO, in the European Union, in Schengen, and in the eurozone. Kosovo fully belongs to the West,” he emphasizes.

Gunther Fehlinger-Jahn concludes by saying that Europe owes the victims the truth, justice, and remembrance, while it owes free and democratic Kosovo a clear European future.