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Exit News: Last week, Kosovo’s Specialist
Prosecution Office located in the Hague announced publicly that it
has filed an indictment against President Thaci while he was on his
way to a high-level meeting with President of Serbia mediated by the
White House. Why was the indictment made public and why now?
Dr. Gjoni: The secrecy around the diplomatic
initiatives between Kosovo-Serbia makes any accurate analysis very
difficult. The prosecutorial announcement about Thaci’s indictment
before its confirmation by the pre-trial judges is unprecedented.
The timing suggests it was intended to thwart an
eventual agreement between President Thaçi and Vučič mediated by
President’s Trump Special Envoy, Richard Grenell.
However, the chief prosecutor’s claim that he was
compelled to respond to a secret campaign led by Thaçi and Veseli to
undermine the work of the court by abolishing the legal basis falls
short of a convincing explanation. In fact, the initiative
undertaken by Thaçi, Haradinaj and Veseli in December 2017 was
abandoned due to overwhelming international pressure.
Since then, there have been no constitutional or
legal initiatives to alter the mandate or abolish the court. If any
were secretly underway, it is very unlikely the Speaker of
Parliament or the Prime Minister, both coming from LDK, would
sponsor, endorse or keep it secret from the public.
However, with the little information available, it
is not unreasonable to think that the chief prosecutor may have
received information that a tentative deal negotiated by Grenell
would include an amnesty for crimes within the jurisdiction of the
special court. The timing of the public notice was likely chosen to
pre-empt any written or unwritten pledges for amnesty or immunity
from prosecutions for which the special prosecution office is
responsible.
In my opinion, US has expressed unequivocal
support for the establishment of a tribunal to adjudicate the
allegations raised in the Dick Marty’s report in 2011 since the very
beginning. A US prosecutor has led the EU Investigative Task Force
which partially confirmed the findings of Dick Marty. Additionally,
the US placed enormous amount for pressure on Kosovo leadership to
adopt the law on special court and since 2015, senior US prosecutors
have led the prosecution office.
While Trump administration has a reputation for
being unconventional, transactional and often defiant to
international norms and multi-lateral institutions, it is highly
unlikely that the State Department would provide guarantees for
amnesties to any of the members of the negotiating teams of Kosovo
or Serbia.
No US administration is in position to issue a
valid blank cheque for alleged war crimes and crimes against
humanity to anyone. Even if Grenell, Thaçi and Vučič discussed the
possibility of inserting an amnesty clause in a draft agreement,
this does not make such amnesty valid under international law.
It only shows the dangers of negotiating peace
talks through backroom deals and without an inclusive and
transparent process.
In fact, President Trump and his senior advisors
may be prosecuted under US and international law once his
presidential term ends if evidence becomes available that they have
facilitated, condoned or endorsed amnesty for such crimes.
Similarly, if mediators use criminal prosecution
as a threat to the representatives of Kosovo or Serbia as a means to
coerce them into accepting an unacceptable deal, the outcomes of the
peace agreement are absolutely invalid under Article 52 of the
Vienna Convention on the Law of the Treaties and thus null and void
under international law.
What will be the impact of the potential
indictment to President Thaci and more generally to Kosovo?
From a legal perspective, even when the pre-trial
judge confirms the indictment, President Thaçi is presumed innocent
until a final decision is rendered by the court, which may take from
five to ten years.
Political implications of the pending indictment
are more immediate both domestically and internationally.
Thaçi played an active role in ousting of Prime
Minister Kurti through a vote of non-confidence in the midst of the
Covid-19 pandemics. He has admitted to have secured a decisive vote
to cobble a slim parliamentary majority for the new government led
by LDK.
Because the President of Kosovo has consistently
argued that Kosovo had no time to lose and should be ready to sign a
final deal with Serbia, the rumours around the pending indictment
will weaken him domestically.
Internationally, Thaçi placed all his political
fortunes in steering the Kosovo-Serbia dialogue away from EU and
towards the White House. Although most of Thaçi’s critiques on the
EU’s policy towards Kosovo are very valid, his increasingly defiant
stance against EU suggests that many European leaders would be happy
to see him out of the picture.
The diminishing authority in Kosovo and EU member
states will make it hard for President Thaçi to lead future
negotiations even if he does not step down pending the outcome of
the indictment.
Indictments will also have great consequences for
other political actors and Kosovo may be heading towards a dramatic
reconfiguration of political landscape.
Former Speaker Veseli is one of the most
influential political figures of Kosovo and the chairman of the
second largest opposition party. His eventual indictment will change
the political dynamics within and outside the PDK.
In addition, former PM Haradinaj and senior
leaders from all the leading parties who were part of the KLA have
already been interrogated and may face charges in the coming months.
Polls conducted by international and local
organizations indicate that a majority of the Kosovo public views
the prosecution of KLA leaders as an injustice to Kosovo, its
liberation war and KLA’s legacy. Widespread resentment may not
immediately lead to turmoil because the current leadership is also
seen by many Albanians as responsible for state capture, widespread
corruption and stagnation of Kosovo’s statehood after independence.
However, it is fair to assume that Kosovo will
face some level of instability when more indictments and arrest
become public.
The special court is now a reality. In any event,
instigating domestic unrest against the special court which is part
of the Kosovo’s constitutional system will only weaken Kosovo’s
statehood process. Any attempt to evade justice through US and/or EU
guarantees from indictment is very unlikely to be successful.
Efforts to instigate civil unrest or render the operation of the
court impossible will only provide arguments to Belgrade that Kosovo
is a failed state and its independence should not have been
supported by the international community.
What are the implications of the recent landslide
electoral victory of President of Serbia Vucic for the relations
between Kosovo and Serbia?
President Vučič was politically very strong even
before the last elections. The fresh and much bigger majority means
that his domination over every aspect of Serbia’s life from media,
business, judiciary and civil society will remain unchallenged for
the foreseeable future.
His ability to navigate global geopolitics and
improve Serbia’s standing in the world has been vastly enhanced by
the EU’s uneven approach during the Kosovo-Serbia dialogue. The
top-down nature of the EU-led dialogue made the EU bureaucrats like
Mogherini and Hahn increasingly dependent on illiberal leaders like
Vučič to show some progress in the Western Balkans.
Amid reports about the democratic backsliding and
authoritarian tendencies that have characterized Vučič’s
consolidation of power, Serbia is now considered an EU enlargement
front-runner owing also to Vučič’s ability to play US, EU, Russia
and China against each other while extracting support and
investments from all of them.
In this regard, Vučič’s leadership style seems to
be a combination of Tito’s non-alignment policy of maximizing
benefits from diversified international alliances and Milosevic’s
shrewd pragmatism of using Serbian minorities to magnify Serbia’s
role in neighbouring countries (Kosovo, BiH and Montenegro).
Most importantly, the current position of Vučič
has also been rendered possible by the Kosovo leadership failures in
many fronts and Kosovo’s frightening dependency on international
patrons. De-recognition letters from various countries presented by
the Minister of Foreign Affairs of Serbia, Ivica Dacic provide
sufficient evidence that Serbia has successfully framed the ongoing
EU-led dialogue as an implied acceptance by Kosovo leaders that the
finality of independence is open for negotiations.
To some extent, Vučič’s success has also been
helped by the failure of Albania to stand up for Kosovo
internationally and his successful efforts to neutralize Albania’s
role in the Western Balkans after the Nish Summit of 2015 with Prime
Minister of Albania, Edi Rama.
In particular, Rama’s recent proposals to
negotiate agreements for a Mini-Schengen zone with Serbia amid
Kosovo’s objections have improved Serbia’s regional standing to the
detriment of Kosovo. Albanian shares no borders with Serbia and
direct agreements on freedom of movement and border removals negate
important aspects of Kosovo’s statehood.
On the global stage, the fact that Vučič has been
able to convince former and current high-level EU and US officials
like Federica Mogherini, Johannes Hahn, John Bolton, Wess Mitchell
and Richard Grenell that Serbia deserves to be compensated
territorially in Kosovo can be considered a great success.
Under Vučič, Serbia is becoming increasingly
resurgent, albeit unremorseful, for the atrocities it has caused
during Balkans wars of the 1990s. This is obvious in Vučič’s failure
to recognize the responsibility for the genocide in Srebrenica, his
denial of Recak massacre in Kosovo and his last year’s speech in
Kosovo where he criticized Milosevic for failing to achieve the
intended results but otherwise publicly embraced his intentions to
impose Serbian domination.
Vučič seems to believe that he can regain what
Milosevic lost during the wars through a more effective brinkmanship
and geopolitical acumen that will eventually enable Serbia to push
for adjustment to the post-Yugoslav settlement in favour of Serbia’s
territorial ambitions. This is becoming increasingly apparent to
senior leaders in EU but few have the courage to correct him.
The eventual indictment of Thaçi and other KLA
figures may further strengthen Serbia’s negotiating position as
Vučič will continue to project myself as a flexible party who
commands a very large majority in Serbia, has no red lines or taboos
when it comes to negotiating with Kosovo.
However, I still believe that Vučič’s ultimate
goal is to challenge the finality of Kosovo’s statehood indefinitely
in hope that international power may enable Serbia to benefit from a
new territorial dispensation in the Balkans.
In sum, Vučič will continue the same strategy
unless the failure to recognize Kosovo becomes too costly.
How can Kosovo respond to this complex
international situation to complete its statehood? How do you see
the future of Kosovo and Serbia relations?
Kosovo faces serious obstacles in completing its
state-building and achieving full international recognition. Some of
these obstacles are the result of the legacies of Kosovo’s birth as
a contested state and the changing international environment since
2008.
For example, it was clear since 2008 that the
failure to achieve recognition from five EU members states will
damage Kosovo and reinforce Serbia’s ability to challenge Kosovo
internationally.
This has now become clearer and while it is an
exaggeration to say that Kosovo will never join EU, it is fair to
say that Kosovo’s EU path is uncertain without recognition from all
the EU members. Similarly, given the Russian and Chinese veto in the
Security Council, UN membership will be very difficult for Kosovo
regardless of the normalization process with Serbia.
In the same vein, as long as KFOR is present under
UN resolution 1244 and unless all NATO members recognize Kosovo, it
will be very hard for Kosovo to join NATO or make its army
operational in K-Serb majority municipalities in the Northern part
of Kosovo without permission from KFOR.
These structural constraints should not be
underestimated although Kosovo’s leadership has made several
strategic mistakes since independence. For example, Kosovo failed to
use international support and assistance to build a strong justice
system capable of delivering justice to all victims of crimes
regardless of the ethnicity of the perpetrators or victims.
In due time, the failure to prosecute war crimes
is one of the main causes for the establishment of the special court
which now has a specific temporal jurisdiction over crimes allegedly
committed by former KLA members.
International diplomats no longer speak about the
fact that very few people been convicted by Serbia’s justice system
for around 13,000 victims in Kosovo. There is also almost no mention
that more than 1133 of the Albanians killed were children and
thousands of Albanian women were the victims of sexual violence at
the hands of Yugoslav military and paramilitary forces.
Also, during the dialogue, Kosovo leadership
enabled Serbia to enhance its influence over the internal
constitutional system of Kosovo, through the promises made for the
Association of Serb Municipalities and the creation of Srpska Lista
which operates like a branch of Vučič’s party in Kosovo.
In addition, by pursuing the UNESCO bid without
securing the required number of votes for membership, Kosovo’s
leadership set a very bad precedent providing further incentives to
Serbia to intensify its de-recognition campaign and weaken the
international position of Kosovo.
To some extent, all governing parties in Kosovo
and large segments of civil society have refused to deal with the
difficult realities of building a state mostly relying on US and
powerful member states of EU like Germany and France to support
Kosovo indefinitely.
I think Kosovo leadership should stop ignoring
these challenges and must not believe in magical solutions from US
or EU.
There is a widespread perception among Thaçi’s
opponents in Kosovo that Kosovo’s precarious situation may be
temporary. There is also a misguided expectation that US will be
more supportive if Trump loses the November elections.
I do not expect that presidential elections in US
or reforms within EU are going to substantially change the
international situation in favour of Kosovo.
This has to be accepted as the harsh reality of
global Realpolitik which is not based on permanent partnerships but
permanent self-interest.
If anything, the more Kosovo leadership continues
its policy of “do nothingness”, the more precarious its
international position will become in the face of Serbia’s growing
assertiveness.
This state of denial and unhealthy dependency on
international support has not helped Kosovo overcome the difficult
realities of completing the statehood process and it is unlikely to
yield positive results in the future.
Regardless of the unfolding developments around
the special court, Kosovo should start preparing itself to navigate
these challenges in increasingly uncertain world in face of
diminishing support from international allies.
In this context, strengthening the state capacity
means focusing on consolidating the rule of law, developing the
economy, investing in its defensive and security capabilities,
taking a more proactive role in building regional alliances and
strengthening its outreach to great powers and non-recognizing
states without waiting for anyone to do the work for Kosovo.
In sum, I think any final deal with or without
border change will become very difficult as Kosovo’s political scene
may undergo dramatic changes in the coming months. Kosovo should
continue to work on improving relations, avoid escalation of
tensions or any armed conflict with Serbia but should not discuss
the finality of its statehood with Serbia nor overestimate the
importance of Serbia’s recognition for its viability as a state.
Dr. Roland Gjoni is a Researcher on
ethno-national conflicts at University College Dublin. He worked for
over 15 years in Kosovo on legal and policy advisory roles with
international organizations.
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