Kosovo Was Widely Expected to Declare Unilaterally Independence from Serbia in 2008. After

Introduction

Kosovo was widely expected to declare unilaterally independence from Serbia in 2008. After the negotiations between the Serbian government and Kosovo Albanians, mediated by the so-called “Troika” (U.S./EU/Russia), did not produce any results, the expectations of the Kosovo Albanian majority were fulfilled on February 17th 2008, when the Assembly of Kosovo, by unanimous quorum (109 members present), declared Kosovo to be independent from Serbia.

The eleven MPs representing the Serbian minority boycotted the vote, whereas the other 9 representatives belonging to other minority communities participated to the proceedings. Notwithstanding the problematic legal implications of the unilateral declaration of independence, 54 UN member states and the Republic of China (Taiwan) recognized Kosovo until the beginning of 2009[1]. The international legal status of Kosovo, even if recognized by a number of states, has nevertheless not yet being clarified and it will not be for the time being.

On February 18th 2008, the National Assembly of Serbia declared the Kosovo’s declaration void, after the Serbian Constitutional Court held the act illegal and against the UN Charter, the Constitution of Serbia, the Helsinki Final Act, the UN Security Council Resolution 1244[2] and the conclusions of the Badinter Commission[3].

In October 2008, the UN General Assembly backed Serbia’s request and the International Court of Justice was asked to deliver an advisory opinion on the legality of the Kosovo Assembly decision to unilaterally declare independence of Kosovo.

In the field, 2008 saw an increased confusion in relation to institutions operating in Kosovo. Following the guidelines of the Ahtisaari’s Proposal[4], the international presence in Kosovo has undergone profound changes, i.ean International Civilian Representative (ICR), nominated in February 2008 by the EU Council, who is at the same time the EU Special Representative in Kosovo, was appointed by an International Steering Group (ISG) comprised of key international stakeholders. According to the Ahtisaari’s plan, “the ICR will be the final authority in Kosovo regarding the interpretation of the civilian aspects of the settlement [… and] will be supported by an International Civilian Office (ICO). The ICO will be smaller and its role will be substantially different than UNMIK. (…) Unlike UNMIK, the ICR will not have an executive mandate to administer Kosovo.”[5].

However, the main novelty at the institutional plan was the arrival of EULEX, a police and civilian mission that was as well envisioned by the Ahtisaari’s Proposal and could be seen as a continuation of the international civil presence in Kosovo in the area of rule of law. The EU mission – composed of around 2.000 police officers, prosecutors, judges and civil servants – was approved by the European Council in December 2007, but the deployment of it began only at the end of 2008 and beginning of 2009. The mission’s focus will be the rule of law and the monitoring of democratic standards. It should be stressed that “UNMIK will remain fully in charge until the end of the transition period”[6] – however no one knows when this ‘transitional’ period will elapse - “when the EU will, possibly, step in to support the Kosovo authorities in their efforts to create a sustainable rule of law system”[7]. As the UN Secretary General, Ban Ki-Moon stated, “following the entry into force of the Kosovo constitution, (…) UNMIK will no longer be able to perform effectively the vast majority of its tasks as an interim administration”[8].

The coexistence of UNMIK, NATO/KFOR, EULEX and Kosovo Albanian institutions has become a factor of mounting confusion on who’s responsible for what. The mixture of different local and international actors contributes to the pessimism with regards to the prospects of a more effective protection of human rights in the province. This is particularly true when it comes to the transfer of UNMIK competencies to the local authorities in the light of the fact that the SC Resolution 1244 is still in force. Among several other examples, here could be mentioned the complete lack of coordination between the UNMIK Office for Communities, Returns and Minorities Affairs, the Ministry for Communities and Returns and the central and local administration dealing with returns and minority communities’ rights.

(…)

Rule of law and security

The destiny of 1,963 persons - the majority of them Kosovo Albanians – that went missing during and after the end of the 1999 conflict remains unknown[9]. Since the last months of 2008 there were speculations and serious investigative reports coming from local[10] and international media about the destiny of around 300 Serbs that were kidnapped after the end of the conflict and subsequently transported to Albania. According to former ICTY prosecutor Carla Del Ponte, their organs were supposedly taken in illegal clinics in Albania and sold at the organs’ black market[11]. In June 2008, the Assembly of the Council of Europe nominated Dick Marty as the special rapporteur in this case[12]. The Kosovo government refused to investigate the allegations.

The fears from an increased tension between Kosovo communities provoked by the unilateral declaration of independence were in general proven to be wrong. The security situation remained stable throughout all 2008 and most of the incidents that were registered during the last year were limited to the city of Mitrovicë/Mitrovica, where several incidents occurred after the unilateral declaration of independence in February 2008.

On February 19th, two customs posts were attacked and burned by Serbian mobs[13]. At the same time, the police officers belonging to the Serbian minority community quit their jobs in the Kosovo Police Service. The attacks were a clear signal of the refusal of Kosovo’s independence and were aimed at stressing the de facto separation of northern Kosovo from the rest of the province and the willingness of its inhabitants to remain part of Serbia. On March 17th 2008 the courthouse of Northern Mitrovica was attacked[14] after UNMIK decided to reestablish control over the court, occupied by local Serbs on March 14th[15]. One Ukrainian KFOR soldier was killed during the attack and other 150 people injured. Fortunately, the incidents did not escalate, but “low-scale tension persisted in the subsequent months, resulting in renewed clashes on August 4th during which three Serbs and one international policeman were injured”[16].

The Kosovo Police Service (KPS) registered around 50 ethnically motivated incidents in the first six months of 2008, 18 of them in the divided city of Mitrovicë/Mitrovica. In 2007, only in Mitrovicë/Mitrovica were recorded 31 incidents. UNMIK, differently from the previous years, did not provide any statistical figures on ethnically motivated incidents for 2008.

Few attacks were recorded against returnees belonging to the Serbian community. The most serious incidents registered were the assault against an elderly Serbian returnee in the area of Deçan/Dečani (May 2008)[17] and the shooting against Serbian inhabitants of the village of Suhodoll/Suvi Do[18], in the Mitrovicë/Mitrovica area in April 2008. On June 26th there was also a clash between Kosovo Serbs and Kosovo Albanians in the ethnically mixed village of Berivojcë/Berivojci over the site for the construction of a new mosque. Further clashes happened on July 4th over the construction of a water pipeline for the ethnically mixed village of Suhodoll/Suvi Do. On October 30th, again in the area of Mitrovicë/Mitrovica, there was an attempt by Kosovo Albanians to start with the reconstruction of their homes without UNMIK authorization. The action provoked the immediate reaction of Kosovo Serbs from the neighboring area. The order was restored only after an intervention of KFOR. After these incidents, an exchange of gunshots in the area between Kosovo Albanians and Serbs took place, but no injuries were reported[19].

The number of attacks against cultural and religious sites and heritage belonging to minority communities was reduced in 2008. According to KPS, 14 minor attacks took place. Seven of them are under investigation and one person was arrested. In May 2008, unknown persons damaged windows and the roof of the Saint Sava church (Orlović village) and some graves in its vicinity[20]. The properties of the monastery of Visoki Dečani were again targeted in 2008. In July, the municipality of Deçan/Dečani covered the remaining foundations of an ancient Orthodox church in the centre of the town, used in the last couple of years for dumping waste, and transformed the land in a public park without consulting the monastery and the competent authorities[21].

There are no significant improvements in the sphere of reconstruction of churches and heritage cultural sites destroyed since 1999 and in particular during the 2004 March riots because of lack of available funds and political will.

Media

Notwithstanding the advanced legislative framework regulating freedom of expression of the media in Kosovo, its implementation yet remains problematic and difficult. Kosovo has lowest diffusion rate of newspapers in Europe[22] and a media scene that often does not follow the standards of ‘fair information’ and impartiality. The stern political influence and pressure over journalist[23], joint with the fact that part of the population - mostly IDPs and returnees - do not have access to sources of information, makes Kosovo a place that continues to face serious problem in relation to freedom of press and to the right to be informed and produce information.

Kosovo’s legislation guarantees to the members of minority communities the right to receive and supply information in their respective languages and the right of a special ‘quota’ of representation in public media. According to Law on Radio Television of Kosovo (RTK)[24], Kosovo’s public TV broadcaster should “serve and give voice to all ethnic communities in Kosovo, by dedicating no less than 10 percent of its programming budget and not less than 15 percent of its program time”[25]. However, RTK board has still not being appointed two and a half years after the entry into force of this law. Moreover, RTK is still financially unstable, because of the absence of “sustainable financing mechanisms”[26] and because of the problems in the collection of TV fees through the electrical company KEK.

The RTK program schedule still does not respect provisions of the Law on Radio Television of Kosovo which stipulate that around 15 percent of its programming hall be broadcasted in minority languages. The quality of its programming for minorities is of low quality and doesn’t meet the minimum standards required in a democratic and modern environment. According to several studies conducted in the field[27], “minorities in Kosovo are not satisfied with information, which they receive over the programmes broadcasted in the languages ofminorities”[28]. Moreover, RTK does not cover with its antennas Northern Kosovo (where majority of Serbs live) and a big part of Southern Kosovo (inhabited by the Gorani and Bošnjak majority), but people in those areas are still obliged to pay the RTK broadcasting fee.

The Fund for the Support of Non-majority, Multiethnic, and Disadvantaged Media, which is part of UNMIK’s efforts to involve the minority communities in the life of Kosovo, is still not operational. RTK, one of the financer of the project, was unable to transfer more than 60 percent of the total amount to be paid for 2007, because of the problems related to the collection of public broadcasting fees. The Minority Media Fund, which had the aim to grant to media for minorities and multi-ethnic groups, has been de facto suspended in 2008. The Fund has “distributed no grants in 2007, despite RTK transferring €176,000 to the Fund”[29]. Moreover, the draft Law on the Management of the Minority Media Fund has not been finalized.

Out of a total of 113 licensed broadcasters in Kosovo, 43 are from minority communities[30], but the majority of them are not self-sustainable because of lack of funds and lack of support from UNMIK and local institutions.

Defamation still remains a criminal offence in Kosovo, in this way leaving open the possibility of political pressure and abuse by politicians over media professionals, TVs, newspapers and journalists[31]. The Council of Europe’s recommendations to ‘modernize’ and to formulate in a ‘press-friendly’ manner the Law on Defamation and Insult (promulgated in February 2007) were not taken in to account and the law remained untouched in 2008[32].

[1] 22 EU states out of 27 recognized the unilateral declaration of independence of Kosovo

[2] The UN Security Council Resolution 1244, in its preamble, affirms the territorial integrity of the Federal Republic of Yugoslavia and the other states in the region:

[3] Decision of the National Assembly of the Republic of Serbia, 18/2/2008,

[4]S/2007/168.

[5]Andrea de Guttry, The European Union Rule of Law Mission in Kosovo: Remarks on its Legality and its Relations With UNMIK, Scuola Superiore Sant’Anna, Pisa, Italy, 2007, p. 4.

[6]Andrea de Guttry, The European Union Rule of Law Mission in Kosovo: Remarks on its Legality and its Relations With UNMIK, Scuola Superiore Sant’Anna, Pisa, Italy, 2007, p. 6.

[7] Ibid.

[8] Un Security Council, S/2008/354, p. 5.

[9] Human Rights Watch, World Report 2009, p. 412.

[10] See B92, Tajna žute kuće, Authors: Autorke: Radoslavka Despotović, Jelena Veljković, Jasmina Seferović, Sandra Mandić,

[11] Paul Lewis, At family farm, grim claims of organ culling from captured Serb soldiers, in “The Guardian”, November 25th 2008,

[12] See for instance: Deutsche Welle, Investigation Launched Into Kosovo Organ Trafficking,

[13]Kosovo Serbs attacked the Gates 1 and 31 at Brnjak and Jarinje, setting buildings on fire. At the same time, 5,000 students demonstrated in northern Mitrovicë/Mitrovicë/Mitrovica without incidents.

[14]UNMIK/PR/1728, Press release, Monday 17 March 2008, “UNMIK re-establishes control of the Mitrovicë/Mitrovicë/Mitrovica Court House”.

[15]UNMIK-KFOR Joint Press Release/PR/1729, Monday 17 March 2008, “UNMIK and KFOR condemn violence in north Mitrovicë/Mitrovicë/Mitrovica”.

[16] Human Rights Watch, World Report 2009, p. 408.

[17]UN Security Council, S/2008/549,Monthly report to the United Nations on the operations of the Kosovo Force, Mai 2008, p. 2.

[18] See UNMIK/PR/1735, Thursday, 17 July 2008, SRSG statement on the pipeline project in Suvidoll/Suvi Do; UN Security Council, S/2008/638

, Monthly report to the United Nations on the operations of the Kosovo Force, October 2008, p. 2.

[19] See UN Security Council, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, 24.12.2008, p. 2.

[20]UN Security Council, S/2008/549,Monthly report to the United Nations on the operations of the Kosovo Force, Mai 2008, p. 2.

[21] Ibid.

[22]The circulation of newspapers in Kosovo amounts to 25,000-30,000 copies ca. daily.

[23] See OSCE, Human Rights, Ethnic Relations and Democracy in Kosovo (Summer 2007 – Summer 2008), p. 30.

[24]Law No. 02/L-47, ON RADIO TELEVISION OF KOSOVO, 20 January 2006.

[25] Ibid. Art. 6, par. 6.

[26] OSCE, Human Rights, Ethnic Relations and Democracy in Kosovo (Summer 2007 – Summer 2008), p. 29.

[27] See for instance, UNIJA, Submission to the UN Committee for Economic, Social and Cultural Rights, October 2008, pp. 49-50.

[28] Humanitarian Law Center, The beginning of the implementation of the Law on the Promotion and Protection of Rights of Communities and their Members in the Republic of Kosovo, December 2008, p. 87.

[29] See Commission of the European Communities, KOSOVO (UNDER UNSCR 1244/99) 2008 PROGRESS REPORT.

[30]34 in Serbian, 4 in Bosnian, 3 in Turkish, two from the Gorani community and one Roma station.

[31] See Commission of the European Communities, KOSOVO (UNDER UNSCR 1244/99) 2008 PROGRESS REPORT, p. 19.

[32] Ibid. p. 49.