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The Rule of Law in Independent Kosovo
The Rule of Law in Independent Kosovo
Table of Contents
  1. Executive Summary
The Kosovo-Serbia Agreement: Why Less Is More
The Kosovo-Serbia Agreement: Why Less Is More

The Rule of Law in Independent Kosovo

Kosovo must bolster its failing justice system and establish rule of law throughout the country if it is to achieve prosperity and greater international recognition.

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Executive Summary

More than two years after declaring independence, Kosovo struggles with uneven rule of law and a weak justice system that is failing its citizens. The police, public prosecutors and courts are erratic performers, prone to political interference and abuse of office. Organised crime and corruption are widespread and growing. Realising that prosperity, relations with the European Union (EU) and affirmation as an independent state depend on the rule of law, the government has taken important steps, replacing key officials and passing long-delayed reforms. But critical weaknesses remain, notably in the courts, and the government, supported by the international community, must act swiftly to curtail them.

Kosovo suffers from the widespread impression that it is run by a lawless political elite in control of every aspect of society. The EU rule of law mission, EULEX, is investigating widespread corruption at the highest levels, and its efforts to date have shown gaping holes in regulation and enforcement. This reputation keeps investment out and the country mired in poverty. A two-pronged approach is needed, tightening institutions and regulation to close off opportunities for corruption while investigating the worst of past abuses.

In some respects, Kosovo’s reputation for lawlessness is exaggerated. The country has a low rate of violent crime, inter-ethnic crime is rare, and Serbs in most of Kosovo live securely. But the judicial system is weak. Few crimes end with their perpetrators in prison. Court procedures suffer from widespread distrust, fearful or unwilling witnesses and shoddy work by prosecutors. On the civil law side, it is all but impossible for citizens and domestic and international corporations to enforce their rights in court. Property disputes are widespread, and since they cannot be reliably resolved in court, occasionally degenerate into violence. The dysfunctional civil law system, choked with a backlog of cases stretching back to 2000-2001, scares off investment. Demoralised and exhausted judges both struggle under the case backlog and are dogged by a reputation for corrupion and favouritism. Plaintiffs endure baffling rounds of appeals, remands and delays, often featuring deliberate errors. Bribery and even violence have become attractive means of extrajudicial dispute resolution.

The police are one of Kosovo’s genuinely multi-ethnic institutions, with Serbs and others integrated in all regions and at all levels. They have strong public support and a willing manpower pool but are poorly managed and lack vital skills as their leadership increasingly neglects training. The force can deal effectively with routine, low-level crime but has a limited ability to fight organised crime, financial crime and fraud, drugs and human trafficking and other specialised challenges. It has a hostile relationship with the public prosecutors, who are charged with leading all police investigations of serious crime. The consequence is that the police do as they please, and the prosecutors are under-serviced and overwhelmed.

The institutions that monitor the justice system – the Kosovo Judicial Council (KJC), which oversees judges, the Police Inspectorate of Kosovo (PIK), and the justice ministry, which supervises prosecutors – are not working properly. The Council is paralysed by lengthy vacancies in key positions. Its components, notably the Office of Disciplinary Counsel and the Judicial Audit, responsible for investigating corruption and other problems in the courts, work well; still, their findings remain without effect because the full body cannot act. The ministry suffers from weak leadership and a lack of political support, though a new minister appointed in April 2010 is expected to improve performance.

The justice system’s weakness is visible above all in Kosovo north of the Ibar River, the small Serb-held zone that Serbia in effect controls. There is no real criminal justice in the North, as its Serbia-run courts cannot cooperate with the UN-mandated Kosovo Police (KP). Nevertheless, the North’s crime levels are similar to those of Kosovo as a whole, and the small local population thrives on handouts from Belgrade. The border between Kosovo and Serbia has become much better controlled recently, and arrests, mainly in Serbia, have cut down drastically on smuggling. But the North remains a stumbling block in relations between Kosovo and Serbia and between both of these and EULEX. Out of excessive caution, the EU has not based its police in the North, leaving the area free for organised criminal gangs. Its efforts to replenish the Mitrovica court with local judges have failed, while offending both Pristina and Belgrade.

This report surveys the domestic legal system; a subsequent report will cover international aspects of the rule of law issue.

Pristina/Brussels, 19 May 2010

The Kosovo-Serbia Agreement: Why Less Is More

The 19 April agreement between Kosovo and Serbia is an earthquake in Balkan politics: the ground lurched, familiar landmarks toppled, the aftershocks are still rumbling and the new contours are only slowly emerging.

The two prime ministers initialed a “First Agreement of Principles Governing the Normalisation of Relations” in Brussels. The brief, fifteen-point text is the first bilateral agreement between Serbia and its former province; as the title suggests, it’s unlikely to be the last. Curiously neither government has published it, though a reportedly authentic version leaked quickly in the Pristina press.

The spinning has been furious among advocates (the EU and both governments), opponents and commentators on both sides of the Atlantic. It is too soon to try to say what it all means. For now clarity comes from focusing on the few patches of firm ground.

There are only two sure things about the agreement, both are very important, and neither is spelled out anywhere in its text. The first is that the Serbian government has given up on keeping northern Kosovo in its system and has ceded its authority to Pristina. The second is that Belgrade has implicitly recognised that Kosovo is a state. These are tectonic shifts, whose effects will be felt no matter what happens with the early attempts to implement the deal.

The New Normalising 

The agreement’s title itself is misleading: ostensibly about “normalisation of relations”, the first twelve of the agreement’s fifteen points cover instead the governance of Kosovo’s Serb-controlled northern region. Only one point is explicitly about bilateral relations, and all it says is that neither party will block the other’s progress toward the EU.

The agreement specifies creation of an “Association/Community of Serb majority municipalities”.[fn]See Crisis Group Report Serbia and Kosovo: The Path to Normalistion.Hide Footnote The dual name is another sign of trouble ahead: for Serbia, it is a Zajednica (union or community) of municipalities, a governing entity newly established by the agreement, while for Kosovo, it is merely an inter-municipal association like one that already exists to help local governments coordinate and share expertise.

What Belgrade and Pristina have initialed is not so much an agreement as a set of principles that must be elaborated before they can be implemented, and the elaboration can be as hard-fought as the agreement itself. Consider the second point:

The Community/Association will be created by statute. Its dissolution shall only take place by a decision of the participating municipalities. Legal guarantees will be provided by applicable law and constitutional law (including the 2/3 majority rule).

The first sentence is silent as to who shall legislate the statute: the Kosovo Assembly (as Pristina prefers), the municipalities in question (which operate under Serbian law) or newly elected municipal bodies (under Kosovo law). The second implies the entity cannot be dissolved by a court decision, which suggests it is to have some kind of constitutional status. The third mentions a “constitutional law”, something that does not exist in the Kosovo system (but does in the Serbian one), and a “2/3 majority rule” of which Kosovo has at least two. It also mentions “legal guarantees”, but not what they are to protect. Most of the other points are as diaphanous as this one, amenable to different readings and needing a lot of follow-up work to give them life.

The Brussels House Style - And Its Limits

Followers of the history of EU mediation between Belgrade and Pristina will recognise this ambiguity as the Brussels house style: get the parties to commit publicly to an agreement whose content is to be filled in later, often by EU officials, out of the spotlight. The advantage of this approach lies in making possible agreements that would be politically deadly if spelled out in black and white. The cost, however, is steep. Both sides can feel cheated, and Belgrade especially tends to squeal when implementation begins on terms that were only implied in the text itself.

Much of the agreement depends on the cooperation of the northern Kosovo Serbs and their leaders, all of whom reject the deal and promise to resist.  This community has a bad reputation these days; they are portrayed as extremists, criminals, or at best simply too few in number to matter. That portrait is unfair: as those who spend time in the North know, its people are little different from their neighbors across the Balkans. Rejection of the Belgrade-Pristina deal comes from a bedrock patriotism that is common to most populations who see state borders shift against their will. Given the near-total absence of law enforcement, the area is surprisingly peaceful; since Kosovo declared independence in 2008 there have been only four fatalities in the North linked to the dispute. During tense times, improvised bombs explode and pot shots ring out, but are meant to warn or intimidate and seldom injure anyone. The only serious confrontations have pitted locals against NATO’s peacekeepers when the latter tried to remove barricades in 2011 and 2012.

While the two governments can, and should, implement a few measures right away, it’s impossible to guess the shape that northern Kosovo government will finally take. The two governments should coordinate the transfer of all security sector staff in Kosovo from Belgrade payroll and jurisdiction to Pristina, which entails: taking existing Kosovo Police (KP) off the Serbian payroll (many have been drawing two salaries, one from each state) and otherwise leaving them alone, and transferring the several hundred (reputed) undercover Serbian officers over to Kosovo payroll. This is less provocative than it sounds, because the “Kosovo Police” brand is widely accepted in northern Kosovo and seen as essentially local, regardless of who pays. It is important the two capitals work together to ensure no interruption in payment and no interregnum during which displaced cops can be recruited by organised crime.

Too much focus on the agreement’s specifics is likely to mislead; many of its provisions will be modified in practice and some may be simply forgotten over time.

Implementing the agreement will require both countries to amend the relevant legislation. One or both may have to amend their constitutions. The issues will have to be aired in public, members of parliament will have to take stands. Early signs are not encouraging. Kosovo’s Assembly approved the deal after a raucous late-night session featuring angry denunciations by the opposition Vetëvendosje (Self-Determination) party, whose supporters rallied outside the legislature. The Serbian parliament refused to vote on the agreement itself, claiming that to do so would constitute recognition of Kosovo; instead, it approved the government’s report on the negotiations. Earlier technical agreements between the two are held up on appeal to Serbia’s constitutional court on grounds that the government impermissibly changed by decree issues that must be regulated by law.

Northern leaders are still stunned by Belgrade’s move, which took them by complete surprise. They have yet to digest its implications, and early reactions bear a distinct resemblance to the five stages of grief: denial, anger, bargaining, and a few signs of depression and acceptance. They seem to hope the deal will die without their cooperation, but have no real plan. Some day soon, should Belgrade start to squeeze them in earnest, the residents of northern Kosovo will face stark choices. Their preference – the status quo, ignoring Pristina and largely integrated into the Serbian system – is no longer possible. There are many things Belgrade can do, starting with money (reducing or eliminating bonuses, cutting positions), and going on to dissolving municipal governments on a pretext and replacing them with more pliant staff, arresting key local leaders on real or trumped-up charges, closing various offices, and even the “nuclear option” of closing the two main employers, the university and medical centre. The limiting factors are legal (as in many ex-communist states, workers have many rights and are hard to fire) and political (they do not want to provoke a televised exodus, even a small one). One ironic component of this story is that Serbia will probably be tacitly encouraged to violate its own laws by the EU to make all this work, as doing it properly – amending all the relevant legislation and regulation – would take much longer than Brussels prefers.

A Self-Governing North, and the De Facto Recognition of Kosovo

The big irony here is that Belgrade’s preferences on implementing the deal are more threatening to the northern Kosovo Serbs than are those advocated by Pristina or the EU, because it is much easier to resist the latter. Serbia wants to form the Community quickly, out of the existing municipal governments; name a senior Serb police officer to take charge of integrating the illegal Serbian security presence into Kosovo institutions; and transfer the existing Serbian court to Kosovo jurisdiction. These steps would bundle the local population and their leaders into a loose Kosovo jacket that could be tightened over time as tempers cool. Kosovo wants to defer forming the Association until the OSCE organises local elections; supervise the transfer of security officials; and dissolve the Serbian court and staff a new Kosovo court. Northerners can easily boycott or sabotage all of those measures and probably remain confident that Pristina would stick to its positions.

The North has fourteen years of experience resisting pressure from Kosovo,[fn]See Crisis Group report North Kosovo: Dual Sovereignty in Practice.Hide Footnote with a large arsenal ranging from community pressure and civil disobedience to organised boycotts, intimidation and occasional pitched battles. But they do not know how to fight Belgrade. In the near term, the stronger Serbia’s influence over northern Kosovo is, the more that territory will integrate with Pristina; and the more Serbia pulls back, the more the North will maintain its independence from Kosovo. The clearest example of this paradox is Serbia’s plan to pass a constitutional law transferring its governing authority over Serbian municipalities to what it calls the “provisional institutions” in its “autonomous province” of Kosovo. Pristina would surely reject such a law and see it as an insult; yet it would leave the North no legal avenue to keep rejecting integration into the Kosovo system.

With or without a Serbian constitutional amendment, there is no way for northern Kosovo to keep saying it rejects the Belgrade-Pristina agreement but is otherwise a normal part of the Serbian legal and administrative system, because Belgrade is transferring it to Pristina’s authority. The North is thinking of three options. It can submit to integration into the Kosovo system, and work to expand the space of autonomy it offers them. It can declare independence, with an aim of negotiating a better deal with one or both of the states that claim it. Or it can strike out on its own without any formal declarations, subverting and obstructing the agreement where it can and hoping for a re-negotiation.

Curiously, all three courses lead toward the same place: a largely self-governing region, with some ties to a Kosovo whose independence it rejects, and with other ties to Serbia. The differences are in emphasis and symbolism, emotionally powerful but with modest practical implications. Pristina and Belgrade should refrain from sudden or provocative moves. So far there has been no surge in violence against Kosovo institutions in the North but that is a risk in the near future, with the North Mitrovica Administrative Office and its staff being the most obvious targets. These should be protected.

There is no point holding elections without significant local support. If the North is firmly opposed, there is a risk of violence against the organisers, and polls that require hefty KFOR protection would be of little use. Belgrade and Pristina need to explain, in detail, what the agreement means for northern Kosovo. They should take the time necessary to prepare the ground.

All previous accords were packaged as deals between Serbia and some external player – the UN or the EU – acting as Kosovo’s proxy. This is the first high level agreement between the two states, and shows that Serbia can deal with Kosovo as an equal. It is a kind of de facto recognition of Kosovo and that may be its greatest long-term significance. Whatever else happens, it is easier today to imagine that Serbia may one day formally recognise the independence of its former province. Yet the thaw in Belgrade-Pristina relations is still fragile and easy to reverse. Both capitals should make improving their bilateral ties the priority, and should not allow lingering disagreements over northern Kosovo to impede them. Better state-to-state relations are much more important than administrative details governing the North.