For many years, the European Union, other international organizations and foreign governments have been describing Kosovo’s rule of law as weak; a weak judicial system, weak accountability of judges and prosecutors, judicial inefficiency, limited implementation of laws and strategies related to fundamental rights, a weak track record in the fight against corruption and organized crime.
It seems that Kosovo is approaching the point where the characterization of its rule of law system as ‘weak’ does not accurately reflect the reality — instead, it seems to be more accurate to speak of a rule of law crisis.
The Merriam-Webster dictionary defines ‘crisis’ as an unstable or crucial time or state of affairs in which a decisive change is impending, a decisive moment with the distinct possibility of a highly undesirable outcome, the turning point for better or worse. Recent developments, when added to what has so far been perceived as the weakness of rule of law, indicate that the state of affairs in Kosovo’s rule of law system is worse than perceived.
A draft indictment against a number of senior politicians for having manipulated the list of war veterans eligible for financial assistance, the resignation of the public prosecutor who had investigated this case, and the public reaction of the prime minister, the president of the assembly, the chief state prosecutor and other senior officials to the allegations reveal the dimensions of this crisis.
According to the draft indictment prepared by former Special Prosecutor Elez Blakaj, senior politicians and officials are involved in criminal fraud and abuse of office by listing more than 19,000 persons as war veterans although they do not legally qualify for this status. Former Special Prosecutor Blakaj publicly stated that the chief state prosecutor put him under pressure, because he had interviewed senior politicians, among them the president of the assembly, as witnesses. He also talked about threats and attempts to intimidate him. He justified his resignation with the argument that the judicial system was so corrupt and captured that he had no effective means to have his complaints addressed.
Whether the allegations he made in the draft indictment are true or not is a matter for the (hopefully professional and impartial) courts to decide. What is important though is the public reactions by the prime minister, the president of the assembly, the chief state prosecutor and the chief special prosecutor who called him an unprofessional coward whose draft indictment is incomplete and who has left Kosovo to make a fortune abroad. The personal attacks against Blakaj by the prime minister were especially aggressive and offensive and evidently aimed at morally discrediting him.
It is obvious that Blakaj’s superiors have an interest in discrediting him because he implies that the State Prosecution is captured and politically influenced. It is also evident that a number of attorneys tried to morally discredit Blakaj because they might expect to be hired by the politicians who are mentioned in the draft indictment to defend them, in case an indictment is filed.
Morally discrediting the prosecutor who prepared the indictment is a sensible way of discrediting the indictment before it is actually filed. But it is difficult to understand why senior politicians, and especially the prime minister, use such an offensive and insulting language against the former prosecutor if they have no interests involved. Even if they are absolutely not implicated in the war veterans’ scandal, the way they reacted in public creates the appearance that they have an interest in discrediting the prosecutor and the draft indictment for some illicit purpose.
It is a public secret that a significant number of those on the list of war veterans are in fact not veterans. The president of the assembly confirmed this and even the commander of the Kosovo Security Force, General Rrahman Rama, was surprised about the high number of veterans. This means that someone senior in the government must have abused authority to include these persons on the war veterans’ list.
Whatever the criminal implications, if it turns out that senior politicians are abusing the Kosovo Liberation Army (KLA) and Kosovo’s war for liberation for personal profit, rent-seeking and political patronage by extracting benefits they do not deserve from Kosovo’s taxpayers and the poorest economy in Europe, then this will discredit the KLA more than Dick Marty’s allegations that senior KLA members were involved in organ trafficking and international crimes.
Whatever the criminal implications, the public outbursts against the former prosecutor have the potential to shatter the last glimmer of hope that the political elites want rule of law. Despite paying lip-service to rule of law reforms, the political elites show little interest in this.
During my work as advisor in the Ministry of Justice last year, a small group of us tried to initiate certain reforms to improve the accountability and transparency of the judicial system while preserving its independence. Numerous reports prepared by European Union (EU) experts indicated that the Office of the Disciplinary Counsel in the Kosovo Judicial Council and the Kosovo Prosecutorial Council was a weak spot in the system. While it was responsible for investigating disciplinary breaches by judges and prosecutors, it operated like a black box with no transparency, no accountability and the potential to blackmail judges and prosecutors, and to set aside investigations into those who truly deserved it.
The idea was to break up the black box, to ensure transparency and accountability of investigations by empowering the citizens with legal remedies, involving the Ministry of Justice and the Ombudsperson to oversee the system without authority to interfere in the investigations, and while preserving the independence of the two Councils to decide on disciplinary offences subject to judicial review by the Supreme Court.
As expected, the proposal was heavily resisted because such a radical reform would have put judges and prosecutors on the spot by making them accountable and disciplinary procedures transparent. It quickly became clear that the reform was not desired, neither by the judges and prosecutors, nor by the politicians in government, because it had the potential to expose the collusion between judges, prosecutors and politicians. It was only due to the active and public support by the United States and the European Union that the government passed the draft. I recall the U.S. Ambassador’s public calls to pass a law on disciplinary procedures for judges and prosecutors; note also the last EU Country Report on Kosovo calling for the adoption of this law.
The draft law is now stuck in the Assembly of Kosovo where, paradoxically, the opposition parties are trying to water down its provisions at the risk of destroying the carefully constructed balance between judicial accountability and independence which would frustrate the very purpose of the law.
It is very strange that the United States and the European Union must defend a law in Kosovo’s Assembly to promote judicial accountability and transparency. It appears that none of the political parties has an interest in this; those in power because they can use an unaccountable justice system to their political advantage, those in opposition because they expect to do the same when in power one day.
If the political elites are not willing and interested in undertaking the necessary reforms to improve rule of law, then Kosovo’s citizens are approaching the point where the government’s failures to ensure rule of law may call for peaceful civic resistance. When democratically elected government structures fail to deliver rule of law and respect for human rights, citizens have the legitimate right to use their right of resistance to reform the state. Whether one invokes a breach of the social contract by the government, or a violation of natural law or human rights, justifications for such right to resistance abound.
The Universal Declaration on Human Rights explicitly states that ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ The Universal Declaration of Human Rights is directly applicable in the Republic of Kosovo and, in the case of conflict, has priority over provisions of laws and other acts of public institutions. Since Kosovo’s Constitution provides that the sovereignty of the Republic of Kosovo stems from the people and belongs to the people, one may also speak of a duty to resist when the government’s failures are such that they threaten the state and its sovereign existence.
Who should enact such a right of resistance? Certainly none of the political parties, whether in power or in opposition. What Kosovo needs is a new civil rights movement, a coalition of willing and determined citizens and civil society organizations who will peacefully pressure the government to undertake the necessary reforms.
The U.S. civil rights movement could serve as a model. Rule of law and human rights are not a given and they have to be earned and continuously defended by political and legal action. As German legal philosopher Rudolph v. Jhering stated in his 1872 book “Struggle For Law”: “all the law in the world has been obtained by strife. Every principle of law had first to be wrung by force from those who denied it; and every legal right — the legal rights of a whole nation as well as those of individuals — supposes a continual readiness to assert it and defend it. The law is not mere theory, but living force.”
This is a test for Kosovo’s civil society if it will be able to bring about the decisive change to avert the crisis. If it is true that every people deserves the government it has, the time might have come for the people of Kosovo to show what government it truly deserves.
Feature image: Besnik Bajrami / K2.0.
