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.