Marek Antoni Nowicki: Kosovo pro memoria (Part 2/2)

KiM Info Newsletter 24-02-06

 

by Marek Antoni Nowicki

International Ombudsperson in Kosovo (2000 – 2005)

 

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Organized crime

 

Credible reports have indicated that Kosovo has been a well known and important transit point or hub of multiple and large scale organized criminal activities . Taking stock of the last two decades tainted by wars, sanctions, general unrest, etc. in Kosovo it is easy to see how organized crime elements took root or expanded their existing operations in the region and to distant lands abroad. The presence of international peace keepers in the region has also, even if indirectly, added to the rooted existence of organized crime by diverting attention away from more practical local initiatives reliant on the longstanding codes of interaction between Albanian family structures as a means of gathering intelligence. These international organizations set up shop in a land devoid of the rule of law and in a society which has struggled to survive for decades solely on limited resources, accepting lawlessness and corruption as a means of survival.

 

Thanks to their successful efforts forging close links with political players, crime groups have been able to operate with apparent impunity. These networks do not have to worry about vigilant law enforcement as they can rely on the weakness of the public institutions to sanction their operations. Well-meaning efforts by the international community at establishing what has become a locally controlled police force, the Kosovo Police Service (KPS) has not in fact deterred the growth of corruption in the province in large part because the KPS exists in a parallel/tandem universe with organized crime. According to certain analysts, elements of organized crime have penetrated and indeed influence the KPS structures with the end result being a lack of will to initiate comprehensive investigations in areas in which the larger criminal enterprises are at work. This is no doubt due to the fact that the international community has not effectively been able to address the interconnected elements of family and culture that have always existed with the Albanian community in Kosovo, and that cannot be discounted when trying to organize a police force where the people they train and hire are also part of this larger cultural milieu.

 

Corruption

 

Corruption issues are not limited to higher political and business circles or mafia networks, but exist within Kosovo’s institutions, educational and legal sector, health care facilities, et al.

 

Despite the pervasive scale of such abusive practices, corruption is very difficult to prove when there is little to no evidence indicating the offense.

 

In an atmosphere in which corruption is so closely tied to everyday life and basic problems, of course people become slaves to this seemingly symbiotic relationship. Rules of keeping silent and revenge are significant contributing factors to its acceptance.

 

Corruption is, in fact, a process that makes it possible for others to decide the fate of people or of different aspects of their lives, one can say, in an arbitrary manner. The rules of how to function in a society are indelibly altered when law is rendered as irrelevant and the role of institutions made obsolete or abused. It goes without saying that these practices regrettably seem to be deeply ingrained in today’s Kosovo.

 

Legal chaos

 

Where legal issues are concerned, in many instances, those who tend to suffer are the people who try to follow the law in Kosovo. I do not exclude others who disregard the law without repercussion or those who do not even think about the law. It is a part of the larger issue of the seemingly regular practice of selective or arbitrary application of the law transforming the rule of law into the rule of convenience.

 

Some seven years have passed, there are written laws in place; there are homegrown and internationally trained law enforcement agencies and officers; there are elected political leaders. The problem is however that too frequently they are unable or unwilling to use their power to defend the law in the common people’s interest. If the public authority does not have the power or will to implement the law one should then resign from any serious “rule of law” discussion. Law exists only if executed by competent authorities, including imposing sanctions when necessary and against any violation- not just against selective, usually poor, members of society. The tight knit communities, strong family network or other circles play a significant role here, understandably creating serious obstacles to anybody thinking sincerely about the law or even more about equality.

 

Rule of law cannot be equalized to rule of people abusing the law for their own particular self-serving interests. Serious oversight mechanisms already in place, like the courts, prosecutor offices or the ombudsperson must therefore be considerably strengthened and utilized if rule of law is actually to be a reality. Still, even if such local mechanisms exist, oversight by international structures and their reactions to at least flagrant abuses of rule of law must be much stronger, determined and based on principles rather than political convenience.

 

Justice

 

The justice system still has a rather bad rap in Kosovo, despite considerable local and international efforts to build a committed, independent judiciary in a post-conflict landscape. Kosovo society, as I have mentioned, is dominated by a tight knit network of big Albanian families which run the region in a somewhat political clan-like fashion which understandably creates obstacles to anybody thinking sincerely about the law or even more about equality before the law. The deeply entrenched social relations that exist in Kosovo society also very much extends to the judiciary. The obvious understanding should be that this profession will be undertaken in an unbiased manner. However, the social allegiances of families and political circles are so deeply drawn in the sand that they could supersede official legal codes and even ethics. As a result, there is a palpable sense of distrust of the “system”, frequently perceived by the population as being in the hands of certain interests.

 

The presence, however limited, of the international judiciary is very much preferred by the local populace as a response to the conditions in which local judges and prosecutors perform their job. Sometimes one simply prefers to deliver justice into the hands of outsiders, rather than people who could be implicated in different ways here.

 

An international judiciary is a temporary solution and will not remain in Kosovo forever. One day Kosovo judges must take on all, even the most difficult, tasks their international counterparts are currently performing and to succumb to the very real pressures, threats, corruption and the strength of organized criminal elements.

 

In Kosovo, particularly in some segments of society, there is an atmosphere in which the “official” justice is not necessarily preferred every time, especially when there is a long tradition of utilizing alternative remedies even if based on the customary law of the land. Justice however must not be in the hands of others. But to generally accept the judges’ rulings, enough trust within the society must exist in the judiciary. Kosovo must not allow itself to drown in the waters of self-proclaimed or opportunistic justice, crime and corruption. However, without a judiciary supported by the people there is no perspective in such matters. For its part, the international community has made more solid attempts at creating this infrastructure, but in this delicate time of transition from international protectorate to some form of defined status, pressure cannot be let up in this area.

 

Kosovo children

 

It has been almost seven years since all out armed conflict marred the landscape, but even before then, repression was evident and war was in the air as reports of the conflict in Bosnia and Croatia dominated the Balkans. When one considers this timeline, then you can see that all school aged children in Kosovo are products of war and a post-conflict environment.

 

These experiences of the children of war influence the mental development of children. Of course many of these children were too young to remember first hand, or were born after the conflict.

 

There are significant issues related to these children of war: many unknowingly suffer from post-traumatic disorders, they have fewer role models, and in too many instances lack guardians or parents. Children are growing up during these post-conflict years in an already difficult environment rife with high unemployment and further complicated by an uncertain political future. Many children are forced to find their own way in a strongly polarized atmosphere, learning to hate or are being taught that “others” are a threat.

 

The consequences of such an upbringing are manifold and understandably confusing for young minds. One needs little reminder that the parents and families of this latest generation of children are also products of war and conflict. The problem is that these fathers and families, unfortunately and totally understandably, have been very negatively influenced by these experiences. It is the obligation of the family to teach their children a value system without hate. In today’s Kosovo, children from different ethnic backgrounds almost never come into contact with their peers who, say, live in the enclaves or in psychologically very distant cities. This distinct separation and isolated environment ultimately leave children to learn from their families how to interact with these “neighbors”. This distance between the communities makes the situation worse and worse by permitting a negative impression to color an entire population.

 

Kosovo’s government would do well by firmly establishing programs whereby school children from the polarized communities are given opportunities to live and attend school outside of their insulated environs or at least to have, much more than today, opportunities to meet and to discover other young people in ethnically distinct settings. Only in this manner will Kosovo’s children be able to develop certain invigorated ideas about the world and its people without being influenced so much by dark thoughts of their parents or uncles tainted by the painful past experiences and resulting in the attitudes toward “others” as “antagonists.” Soon, these children must lead Kosovo towards a more democratic, tolerant and modern future. Nobody deciding Kosovo’s future can overstep this concrete fact.

 

Human rights protection

 

The people of Kosovo are among the very few in Europe who are uniquely excluded from basic legal human rights protection through the jurisdiction of the Strasbourg based Human Rights Court. The vast majority of people in Europe have the ability to sue their own authorities on equal footing in an international judicial forum dedicated to defend their basic rights, but the people of Kosovo are currently denied this course of action, even though the international administration portends to defend the right of Kosovo’s inhabitants to assume these basic rights.

 

The protection of human rights is expressly written in the Constitutional Framework of Kosovo and in international instruments which is considered a part of law of the land. Yet, some seven years later, there are still too few mechanisms in place to ensure that such protections are in practice.

 

The presence of the UN in Kosovo was very much initiated on humanitarian and human rights grounds. However, owing to this presence, Kosovo remains, with a few exceptions, exempt from any international systems of human rights protection. Also, the UN and entities that are in Kosovo to help preserve human rights and the rule of law, at the same time, are themselves, in many respects, not answerable to the very persons they are obliged to protect, existing in a unique legal “otherness” that allows for the international community to impose its views on Kosovo’s inhabitants and structures while operating itself with impunity – “above the law.”

 

In cases where Kosovans become the victims of human rights violations committed by UNMIK as such or its staff members, there is thus no independent body with judicial character that could intervene or allow these persons to obtain some sort of redress for damages or injuries.

 

In Kosovo, the international Ombudsperson had been the only existing and real legal instrument of human rights protection. Unfortunately, after the institution was turned over to local hands , in the still chaotic, inadequate legal and institutional environment of Kosovo and for the very reason of the existence of objective circumstances tainted by the persisting interethnic conflict, the Ombudsperson Institution cannot insure in any respect the protection required. Much more needs to be done. One must improve existing institutions and their performance as well as to build new judicial or other similar independent bodies, some of which will remain long after UNMIK has closed its doors. One such aspiration is the constitutional chamber in the Supreme Court which has been discussed for some years now as a part of the Kosovo legal system and originally envisioned in its Constitutional Framework. Another option could be a separate constitutional tribunal.

 

All aspects of the action or inaction of public, international and local authorities, including Kosovo judges, should be under independent scrutiny for human rights practices as in the rest of Europe, by the European Convention on Human Rights mechanism. At the top is the Human Rights Court in Strasbourg, which could be replaced in the Kosovo context, temporarily – until the final status - by a similar court or other body of a comparable character.

 

Notwithstanding of recent positive developments and UNMIK reports to the Council of Europe or the UN human rights covenants’ bodies, the existing level of protection of basic rights and freedoms is still far from acceptable. The respect of human rights and rule of law is the duty of any government. It should be expected that international institutions, which have taken general responsibility for Kosovo as well as KFOR contributing countries but also very much Kosovo authorities and its political leaders, better understand these critical human rights concepts and give to them the serious, due attention required.

 

Ending Remarks

 

It is clear for everyone in and outside of Kosovo that this year should be and is of the utmost importance for Kosovo. There are however many problems and unanswered questions. The road toward status resolution is very complex.

 

One of the central questions is whether realistically people in Kosovo can live together and the ability to reconcile the process leading to a final status and the creation of true conditions for everyone notwithstanding ethnicity to somehow have a peaceful, undisturbed life there. If there is a sincere will to make a change, to see the reintegration of returnees and to prepare solid ground for Serbs or Roma and others so they can see a place for themselves in Kosovo, then more visible efforts on behalf of the government, political leaders and municipal structures must be seen on the ground.

 

Notwithstanding the political solutions adopted, the future of Kosovo is in Europe, and should follow European standards of democracy, the rule of law, human rights and, especially in the context of Kosovo, the protection of the rights of minorities. Today, however, although the human rights situation has, to a degree, improved in sectors, the general level of protection of these rights is still below minimum international standards. A great deal must be done to strengthen the mechanisms for such protection. Apart from the need to cover many other important gaps Kosovo needs desperately to shape the legal system and to build a strong judiciary as indispensable parts of the rule of law and justice.

 

Every solution must in addition take into consideration the international law and the interests of the neighboring Balkan states guaranteeing basic conditions for regional stability and security. This terribly experienced province must sure-footedly step, together with other people of the region, on the path leading toward European Union integration.

 

It is indisputable that the concrete political and legal international status must be granted to Kosovo without any further delay. It does not mean however – in my view – that this status should be the “final” status. In order to reach the end game with final status, Kosovo should still be subject to carefully politically controlled processes and not held hostage only by the independence aspirations of the majority population.

 

FOOTNOTES:

 

1. Adam Thomson, the British envoy to the UN: "Any settlement should conclude during 2006…And it clearly cannot disregard the aspirations of 90% of the population of Kosovo, so independence is a realistic option." (Feb 15, 2006)

 

2. On March 16, 2005 the Working Group on Missing Persons meeting in Belgrade, Pristina and Belgrade representatives adopted the International Committee of the Red Cross list as the official list of missing persons of those people who went missing from January 1998 to December 2000

 

3. Excerpt from United Nations Mission in Kosovo (UNMIK) Special Representative of the Secretary General, Sorren Jessen-Petersen’s speech to the UN SC on February 14, 2006: "The Secretary General's recent report and my own Technical Assessment of 6 January, covering the period up to 15 December, have both made it clear that there was, in the latter part of last year, a noticeable slow-down in the pace of implementation of standards in Kosovo. The most worrying of the slow-downs noted in my Technical Assessment was in the field of minority rights. This is an area where, with the status process now underway, and with the PISG's stance on its outcome being well-known, Kosovo's leaders cannot afford to show anything less than complete commitment, sincerity and action."

 

4.UN Security Council Speech, UNMIK SRSG - February 14, 2006: "Standards, as a political priority, cannot be subsumed by status. Symbolic gestures – genuinely important though they are – are not sufficient."

 

5.UNHCR relocated over 500 Roma IDP’s in three camps after the destruction of the Mahalla – Cesmin Luge, Kablare (North Mitrovica) and Zitkovac (Zvecan)

 

6.UNMIK press release 1491. PDSRSG Larry Rossin said: "It is a moral and a political commitment, it should be of Kosovo and it is of the international community, to eventually allow those people to return to their permanent homes."

 

7. Mr. Friedrich Schwindt, Director of the Directorate of Organized Crime within UNMIK Police Of course, 02/10/06: "Especially in Kosovo, sometimes organized crime is intertwined with politics, but is also intertwined with terrorism and with extremism."

 

8. Center for International Private Enterprise, Riinvest, etc.

 

9. February 16, 2006: Principal Deputy Special Representative of the UN Secretary General in Kosovo (PDSRSG) Larry Rossin promulgated, on behalf of the SRSG, UNMIK Regulation 2006/6 on the Ombudsperson Institution in Kosovo. The purpose of this Regulation is to transfer responsibility for the continuing operation of the Ombudsperson Institution to the Assembly of Kosovo.

 

/END/