Republic of Kosovo: The Rule of Law in Context

An outline of the issues facing Kosovo in establishing itself with its rule of law and how this, paired with Serbian nationalismand EU candidacy struggles, hinder its economic and political goals.

The iconic yellow and blue independence monument in Kosovo’s capital, Prishtinë, celebrated the 15 years of independence of the Republic of Kosovo (Republika e Kosovës) this year.

 

Understanding the importance of the Rule of Law can be complex. As law students, we may think of A.V Dicey or Joseph Raz and view it as another complex principle from literature. In the UK Constitution, the rule of law is highly valued, and citizens can generally rely on the protections it brings. For the citizens of Kosovo however, reality is vastly different.

 

In essence the rule of law holds that no one is above the law, there are checks on power, the right to freedom of speech and assembly and access to justice. That’snot to say that Kosovo is lacking in the legislation necessary to address many of these issues, but what it does lack is proper implementation.

 

Kosovo used to be part of Serbia and from 1999 was governed by the UN Interim Administration, until 2008 when it formally declared independence. However, it had been fighting brutal Serbian forces for decades before this, killing over 13,000 Kosovars and foreveraltering the lives of many more. In addition, there are also missing persons who have never been found.

 

Before this, both countries were part of the former Yugoslavia. Until the death of Josip Broz Tito,Yugoslavia was the most economically prosperous state in the east of Europe, personified in companies such as Zastava Automobili. Being a Yugoslavian meant you had one of the most powerful passports in the worldand almost complete travel freedom. In comparison today, it has only recently been approved by the European Parliament that Kosovar citizens will have visa-free access to the Schengen area from January 2024.

So what is the state of the rule of law in Kosovo today? 

Kosovo is a democratic state and according to its constitution, both Albanian and Serbian are official languages. There are more Albanian ethnic groups than Serbians, but the rule of law should mean that everyone is equal, and their rights respected. In reality, Kosovofaces widespread political corruption in a weak rule of law system. Its judiciary is problematic, the media and freedom of expression is controversial and there is much discrimination between its ethnic groups, despite all of which have been dedicated a star on Kosovo’s flag.

The flag of Kosovo, the yellow shows its geographical area and the six stars represent its different ethnic groups, Albanians, Serbs, Bosniaks, Gorani, Roma and Turks.

Thats not to say that there are not protective measures in place to address these issues, what Kosovo struggles with is the implementation of these solutions, which is not surprising as the reality which these measures must address is much more complex. For example, while there are no Serbs in Kosovo’s institutions, many remain in the northern municipalities and receivesalaries from Serbia.

 

The faulty political situation does not help Kosovo. Prime Minister Ramush Haradinaj resigned in July 2019 and a new government led by Prime Minister Albin Kurti came into effect on 3 February 2020, but this government only lasted a couple of months and fell to a vote of no-confidence after coalition disagreements. This created a crisis surrounding the procedure for creating a new government which was clarified by the Constitutional Court. After this, a new government led by Prime Minister Advullah Hoti entered office in June 2020 but was declared unconstitutional in December and remained until Kurti was elected again in March 2021 and has remained in office since, with Vjosa Osmani as President.

 

No citizen can be convinced to rely on a government prone to collapse and in addition to this, not helping the situation, former President Hashim Thaqi was indicted with ten accounts of war crimes during the Kosovo war, to which he pled not guilty.

 

The judiciary is also highly influenced by politics. The legal sector has undergone various reforms but remainsproblematic in its enforcement of the law, lack of professional actors, morals, and impartiality. Partisan interests run deep below the surface, and this contributes to an apprehension to punish political elites. The Rule of Law Performance Index in Kosovo found that 62.5% of people believe that those with political influence are less likely to be punished by the law.

 

This is no surprise following the resignation of prosecutor Elez Blakaj after receiving multiple threats due to his investigation into KLA war veterans and the role of high-level officials to grant veteran status to over 20,000 unqualified recipients. Greg Delawie, who was the US Kosovo ambassador stated it was a “sad day for rule of law in Kosovo.”

 

The vital issue of war crimes also cripples the judiciary, as Kosovo’s authorities are still at an early stage of punishing atrocities carried out in the late 1990s. The prosecution of war crimes was under EULEX before the process was delegated to Kosovo’sjudiciary.

 

Additionally, legal frameworks surrounding media and freedom of expression are aligned with standards in European institutions, however this does not mean they are aligned in practice. Between January and August 2022, the Association of Journalists of Kosovo reported “22 cases of attacks, threats and intimidation against journalists and media outlets. The associationreported that in most cases journalists face harassment, threats, and intimidation on social media platforms,” according to Human Rights Watch. Lack of finance also means that the media is susceptible to politicalinfluence, limiting the impartiality of reporting

 

On a more positive note, the police are considered the most effective institution compared to the courts. There were corrupt individuals within the Kosovo police, but they have since been punished and are serving their sentences in prison. This does not mean the institution is unflawed as there are failures in evidence being delivered to prosecution which can further hinder the courts effectiveness, but this is an area which is improving.

 

It is the weak areas within the rule of law and clashes between ethnic groups that prevent the once war-torn country to prosper, economically and politically. With EU membership candidacy an increasing priority for President Osmani, after a formal application for EU candidacy was submitted in December 2022, neither Kosovo or Serbia who both desire EU membership can achieve this, until relations are repaired, and Kosovo is recognised as an independent state.

 

But its reputation on the political stage is still rocky, the rule of law is not the only issue which needs to be addressed, with a brawl erupting in the Kosovo Parliament in July, between Prime Minister Albin Kurti and lawmakers over tensions in the North of the country, a region heavily populated by Kosovo-Serbianresidents.

 

More recently, on the 24th of September, Serbian terrorists entered the north of the country and raidedBanjske, a village in North Kosovo, resulting in the death of one Kosovo police officer, Afrim Bunjaku. Kurti accused “Serbian-state supported troops” of “perpetrating these terrorist attacks,” not “Kosova Serb citizens.” Meanwhile Serbian President Aleksandar Vučić, claimed the men reacted to “terror.”

 

Being half Kosovar myself, I witness the potential my country has when I return every year. Factors such as the problematic rule of law, Serbia’s influence and poor media reporting that give it a reputation as simply a post-conflict state, with its only mention in western media when there are violent developments or tensions.

 

Kosovo is unable to move on or focus on institutions which need reform, to establish itself on the world stage and fulfil its aspirations of joining the European Union. This deprives fundamental protections for its citizens and the prosperity of a region which has the capacity to succeed.

 

 

For further information on Kosovo’s rule of law situation, Civil Rights Defenders has published an Assessment of the State of Rule of Law in Kosovo, Author: Ms. Rreze Hoxha Zhuja, LLM.

The EU Rule of Law Mission in Kosovo (EULEX) website containsadditional resources for more information