Biden Fought for Justice in the Balkans. He Must Do it Again | Opinion

At last month's Munich Security Conference, President Joe Biden reassured European allies that America is back.

"Our interests will not always converge. ... But we have a broad, common, good basis," Germany's Chancellor Angela Merkel cautioned.

Her declaration acknowledged a salient truth easily lost in the meeting's bonhomie: strains in the transatlantic relationship festered long before former President Donald Trump.

This is natural. Interests do diverge. But in the Western Balkans, these differences have grown into something contradictory and unsustainable.

For over a decade the United States has outsourced its development policy in the region to the European Union. While America guaranteed Kosovo's security, Europe looked after justice and the rule of law. Now, despite funding both, the EU's policy is actively working against American (and Kosovar) interests. Biden must re-engage to rectify a policy gone rogue.

How this became rests on two programs.

First, the EU installed the European Union Rule of Law Mission (EULEX) in Kosovo, the largest intergovernmental civilian mission in the world, to guide the fledgling nation's courts and policing systems. Second, it funded the Kosovo Specialist Chambers, a national court created under national laws to try those accused of war crimes during the wars of independence.

Nevertheless, it was to be based in The Hague–the home of the International Criminal Court and the International Court of Justice. Today, the only Kosovars sitting in it are those facing trial; the judges, prosecutors and support staff were and are all international.

On Europe's watch, guides and funders have become masters and controllers. Institutions designed to build confidence in governance and accountability between local citizens and government have become little more than vehicles to advance European policy aims–which are distinctly different from American ones.

This is best illustrated by last summer's derailment of a deal to normalize relations between Serbia and Kosovo–an agreement that has been America's principal objective in the Western Balkans for over a decade.

A meeting to ink a Washington-brokered deal between the presidents of Serbia and Kosovo was set for June. It didn't happen.

Hours before Kosovo President Hashim Thaçi was due to fly across the Atlantic, the Specialist Prosecutor's Office in The Hague announced it had filed an indictment with the court. The guerrilla leader turned politician and three of his associates were to be tried for crimes against humanity during the 1990s conflict. The Washington meeting had to be cancelled.

The timing of the announcement seemed more than coincidental, especially since it ran contrary to procedure.

Indictments are supposed to be made public only after they have been confirmed by a pre-trial judge (which only happened in November). The reason for the breach of protocol, according to the prosecutor, was because of a "secret campaign" to undermine the court by the president and the chair of the Assembly of Kosovo "to ensure that they do not face justice"–an apparent attempt to create an impression of guilt before the case started.

President Joe Biden looks on during a virtual meeting. Anna Moneymaker-Pool/Getty Images

The EU didn't like the Washington-brokered deal because it intended to pave the way for a controversial land swap. Serbia and Kosovo were willing to discuss exchanging territory. The EU, however, was not interested. A European court meant to administer justice for past crimes became a tool for politics in the present.

The other reality is that the EU does not like the post-independence leadership. They are entitled to hold such a view. But a supposedly Kosovar and independent court has become the means to turn its views into deed; to purge politicians with which it disagrees.

Already the court is mired in scandal.

Kosovo Specialist Chambers President Judge Ekaterina Trendafilova was caught breaking the court's own rules by secretly briefing confidential intelligence to EU funders and diplomats on the structure and procedure for forthcoming cases in court–before defense attorneys were notified.

In another incident, the chief prosecutor allowed three boxes of confidential documents containing the identity of witnesses to leak. The only objective conclusion is that it is not the Kosovar leadership who are undermining the Kosovo Specialist Chambers, but the leadership of the Specialist Chambers who are undermining Kosovo.

Perhaps unsurprisingly, Trendafilova has a reputation for impropriety.

She presided over the similarly scandal-clad International Criminal Court trials of Kenyan President Uhuru Kenyatta and his then-deputy William Ruto–both of which collapsed. Coincidentally, the briefing of EU funders and the leaking of the identity of witnesses were key contributing factors in these failures. Similarly, the court claimed it was undermined by the Kenyan government–it became obvious that it was the other way around.

In the Kosovar court, like the ICC with Kenya before it, the overriding concern has become the securing of convictions, even at the expense of justice. What began as an instrument to hold those accountable for past crimes, and consequently build the institution of justice in the country, has gone through the looking glass.

Whether withdrawing funding from the billion-dollar court, or withdrawing entirely, President Biden must intervene to ensure the court's reform. The point is not to change the outcome, but to ensure trials are administered according to the tenets of justice–and that is yet to be seen by Kosovars.

As senator and the ranking minority member of the Senate Foreign Relations Committee, Biden believed that justice was imperative during the Yugoslav wars.

During a trip to Bosnia in 1993, he met with Yugoslavian leader Slobodan Milosevic and told him: "I think you're a damn war criminal, and you should be tried as one."

Thirty years later, as president of the United States, he must prevent the return of injustice in the Balkans.

Professor Ivan Sascha Sheehan is the executive director of the School of Public and International Affairs at the University of Baltimore. Follow him on Twitter @ProfSheehan.

The views expressed in this article are the writer's own.