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Delegitimising “War-Wing” Parties in Kosovo by (Special) Court Decree

Critique of the Liberal Peace Framework in Its Pursuit for Transitional Justice

In: Southeastern Europe
Authors:
Armend Bekaj Uppsala University, Uppsala, Sweden

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Robert Muharremi Rochester Institute of Technology Tirana, Tirana, Albania

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Abstract

Kosovo is often viewed as an example of the liberal peace framework after war. Its “war-wing” parties became part of post-war mainstream politics, with ex-KLA leaders occupying major decision-making positions. However, the 2020 war crimes indictment of then-President Hashim Thaçi and war-time allies by the Special Court coincided with elections that produced a landslide victory for the rival Vetëvendosje party, relegating “war-wing” parties to opposition. This article offers a critique of the liberal peace framework, acknowledging that criminal trials are an important part of its mosaic. However, the article argues that in this case the timing of indictments coincided with government change, a transplantation of political power, and subsequent deteriorating talks with Serbia. It argues that the pursuit of justice through criminal trials as part of the liberal peace framework may indirectly impact not just a country’s political power balance, but can disrupt ongoing international peace processes.

1 Introduction

Kosovo is frequently referred to as an example in the enactment of the liberal peace framework after war, a term often used interchangeably with post-conflict liberal peacebuilding and also state-building (Chandler 2006; Weller 2009; Distler 2018; Visoka and Musliu 2019). In the aftermath of the war in 1999, the United Nations (UN) assumed responsibility for the administration of Kosovo, setting up its UN Interim Administration Mission in Kosovo (UNMIK) in accordance with UN Resolution 1244 (1999a). Under a UN umbrella consisting of four main pillars, 1 a plethora of international organizations began operating in Kosovo, offering various levels of humanitarian and technical assistance and, in so doing, contributing with efforts towards building a self-governing liberal democracy.

These efforts continued even after Kosovo declared independence in February 2008. The country still hosts the European Union (EU) rule of law mission (EULEX), whereas the North Atlantic Treaty Organization (NATO) Force (KFOR) is in charge of ensuring a safe environment for all people in Kosovo. Simultaneously, soon after independence, the EU began facilitating a dialogue between Kosovo and Serbia (which does not recognize the former’s independence) that aims to achieve a “comprehensive normalization of relations” between them (EEAS 2022). The dialogue itself stems from the imposition of a liberal peace framework whose final aim is a long-lasting peace between the two countries.

In the context of a nascent liberal democracy, Kosovo’s post-war scene was enriched with two new parties: the Democratic Party of Kosovo (in Albanian: Partia Demokratike e Kosovës or PDK) and the Alliance for the Future of Kosovo (in Albanian: Aleanca për Ardhmërinë e Kosovës or AAK), both created and led by former leaders of the Kosovo Liberation Army (KLA). A third one – the Social-Democratic Initiative (in Albanian: Nisma Socialdemokrate, or Nisma) was formed in 2014 after splitting from PDK (Bekaj 2010; Muharremi and Ramadani 2024). Their leaders and “war-wing” parties became part and parcel of mainstream politics in Kosovo, occupying at one time or another every major decision-making position. In addition, the state’s public administration was gradually dotted with party members and affiliates, thus amplifying their reach and impact. Together with the Democratic League of Kosovo (in Albanian: Lidhja Demokratike e Kosovës or LDK) which, unlike the above parties, has a legacy in civil resistance, they held sway of mainstream politics in post-war Kosovo for twenty years.

However, major changes took place with the general election of 2019, but they took a precipitous turn with the early election of 2021. For the first time in twenty years the established parties, including “war-wing” ones, were relegated to opposition (CEC 2019 and 2021). 2 At the same time–more precisely between these two elections-Kosovo Specialist Chambers and the Specialist Prosecutor’s Office (otherwise known with the colloquial term “Special Court” 3 ) issued indictments against the incumbent President of Kosovo and founder of PDK Hashim Thaçi, the former Speaker of Assembly of Kosovo and Head of PDK Kadri Veseli, another former Speaker of Assembly of Kosovo and a co-founder of PDK and Nisma, Jakup Krasniqi, and member of parliament Rexhep Selimi (The Guardian 2020). They had all been leaders and founding members of the KLA.

By focusing on a single case study, this article offers a critique of the liberal peace framework in its pursuit for transitional justice. It does so by exploringthe pitfalls of this framework in the context of transitional justice, particularly pertaining to a) the country’s internal political balance, and b) its ongoing international talks to reach long-lasting peace?

The article applies a multi-disciplinary approach that draws from peace scholarly work, as well as international relations and international law. The first part of the article conducts a succinct literature review, coupled with an outline of the theoretical framework for liberal peace and transitional justice. The second part outlines Kosovo’s recent political processes which have led to its shift in foreign policy, allowing the empirical evidence to serve as an argument for critical analysis on the liberal peace framework. The final part draws conclusions for liberal peace and transitional justice in contexts where a sustainable international peace settlement is still pending.

2 Juxtaposing Liberal Peace with Transitional Justice: Literature and Theory

The new liberal peace framework began to take root in the aftermath of global seismic changes of the early 1990s, heralded by the demise of communism and the fall of Berlin wall. Within this framework, there was a growing consensus on the normative aspects that would dictate the implantation of liberal peace in conflict-ridden societies. In this context, the new peacebuilding paradigm traces its roots back to the Agenda for Peace (1992) of former UN Secretary-General Boutros Boutros-Ghali. In a post-Cold War world, peacebuilding would require the “construction of a new environment” through,

disarming the previously warring parties and the restoration of order, the custody and possible destruction of weapons, repatriating refugees, advisory and training support for security personnel, monitoring elections, advancing efforts to protect human rights, reforming or strengthening governmental institutions and promoting formal and informal processes of political participation.

boutros boutros-ghali, Agenda for Peace (1992): 33

The UN failures in Rwanda or Bosnia in the mid-1990s underscored the need for peacebuilding (Sabaratnam 2011) with the construction of a liberal state as its core idea (Richmond and Franks 2009).

2.1 The Peacebuilding Paradigm: Thinking Big

The liberal peace framework came to represent a “peacebuilding consensus” between “peacebuilding agencies, donors, states and most NGOs that democracy, free markets, the rule of law and human rights, and developmental processes are necessary to produce a sustainable solution to conflict” (Richmond and Franks 2009: 9). Since post-conflict reconstruction is often an immediate task that needs addressing, a free-market, deregulated economy within the liberal peace framework was often viewed as the elixir that would solve a lot of social and political troubles (Howarth 2014).

As the case of Kosovo testified, liberal peacebuilding rests on the assumption that peace is more than just the absence of armed conflict (or negative peace). Economic, social, environmental, and humanitarian issues could also lead to instability and threaten peace and security. This is a comprehensive idea of security. For this reason, “international intervention must extend beyond military and humanitarian tasks and must include the promotion of national reconciliation and the re-establishment of effective government” (UN 1995: 5). This broader notion of peace refers to a long-term commitment that includes objectives towards disarmament, repatriation of refugees, restoration of order, rule of law, social justice, democratic elections, adherence to human rights, and support for government institutions (Richmond and Franks 2009: 6). While the liberal state would provide the framework for the creation of peace through liberal governance, international actors involved in the process would apply support, and even the use of force, to achieve this end (Richmond 2006). The liberal peace framework, therefore, is intertwined with some degree of intervention from the international community (Collier et al 2008).

Post-conflict peacebuilding endeavours often involve a considerable degree of state-building, too (Sabaratnam 2011; Zürcher 2011). Indeed, as seen from the case of Kosovo, peacebuilding and state-building often came to be used inter-changeably and complimentarily with one other. In places like Kosovo the international community could play an omniscient role by setting up governance institutions from scratch, with local counterparts tagging along (O’Neill 2002). To quote UNMIK’s first Special Representative of the Secretary-General (SRSG) Sergio Vieira de Mello, his mission was built to exercise powers akin to those of a “benevolent despot” (Lemay-Hébert 2012: 469).

A point of immediate preoccupation for the liberal peacebuilding paradigm is the (re)integration of former combatants (Bekaj 2024). Frequently, they tend to be included in politics as means to contributing to post-conflict political plurality (Joshi 2010; Kovacs and Hatz 2016). The creation of political parties by former combatants, followed by participation in democratic elections, is a testing moment for a fledgling, post-conflict democracy. The liberal peacebuilding framework comes to be viewed more complete when these “war-wing” parties manage to make a successful leap from war to peace and democracy. The above framework even stands to gain credibility when confirmed that these parties made a successful transformation from “bullet to ballot box” (Ishiyama 2016). Also, their political involvement helps to avoid the problem of “peace spoilers” (Stedman 1997) that may pose a real danger to a peace process that is still fragile and prone to backsliding (De Zeeuw 2008; Jarstad and Sisk 2008). Therefore, this often translates in offering former combatants space for political representation (Hoddie and Hartzell 2003; Glassmyer and Sambanis 2008). In fact, rather than passive recipients of disarmament, demobilisation and reintegration (DDR) assistance, former combatants may become credible “peacebuilding partners” (Dudouet et al 2012) with equal stakes in post-conflict political processes. Their inclusion in politics is thus seen as a frequently-repeated part of peacebuilding efforts in post-conflict settings (Söderström 2016; Tuncel and Manning 2022; Manning et al 2023).

2.2 Transitional Justice: Supplying Legal Scaffolding for Peace

Rule of law is a central component of the liberal peacebuilding paradigm and “a guarantor of many of the other key strategies of the liberal political project” (Peterson 2010: S17). Rule of law guarantees and protects democracy, human rights, and private economic interests, whereas lack of the rule of law may foster instability and societal tensions in post-conflict societies (Ibid.).

This underlines the vital importance of transitional justice which reflects an attempt “to build a sustainable peace after conflict, mass violence or systemic human rights abuse” (Van Zyl 2005: 205). Transitional justice helps to restore and maintain peace by “establishing individual accountability, deterring future violations, establishing an historical record, promoting reconciliation and healing, giving victims a means of redress, removing perpetrators, and supporting capacity-building and the rule of law” (Kerr and Mobekk 2007: 3-4). As such, transitional justice has become an essential component of liberal peacebuilding operations (Kora 2010).

The UN defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation” (UN 2010: 3). The central idea of transitional justice is how to achieve justice by providing a just social response to past abuses of human rights. The purpose is to comprehensively address the root causes of conflicts and violations of human rights, committed during conflict (Ibid.). This approach helps to effectively deal with the past and create just and fair foundations from where to move on as a transformed society.

Transitional justice encompasses a variety of instruments. It includes “judicial and non-judicial processes and mechanisms, including prosecution initiatives, truth-seeking, reparations programmes, institutional reform or an appropriate combination thereof” (Ibid.: 3). It also involves wide-ranging political, economic, cultural, sociological, and psychological actions, such as “lustration, public access to police and government records, public apology, public memorials, reburial of victims, compensations, reparations, literary and historical writings, and blanket or individual amnesty” (Kora 2010).

Criminal trials play an important role for transitional justice as they help to provide a direct form of accountability for perpetrators and ensure a measure of justice for victims. They enable victims to present their views and concerns at trial and reclaim their dignity. They help to delegitimize extremist elements, and ensure their removal from the national political process. In the process, they contribute to greater public confidence in the state’s ability and willingness to enforce the law (UN 2004).

National courts and international criminal courts (such as the International Criminal Tribunal for the former Yugoslavia (ICTY)) are responsible for conducting criminal trials. In the case of Kosovo, over the years UNMIK, EULEX as well as national courts respectively have investigated and conducted numerous criminal trials related to the late ’90s war (Zupančič et al. 2017; OSCE 2022). Irrespective of whether it is international or national courts, criminal trials are important because there can be “no peace without justice, no justice without law, and no meaningful law without a court to decide what is just and lawful” (Rudolph 2001: 684).

2.3 Transitional Justice Against the Background of Peace Talks

The above correlation between peace, justice, law and courts does sound like an irrefutable maxim. However, it should also be asserted that law and politics are not separate but indissolubly intertwined. Law is a function of a given political order; the ultimate authority of law derives from politics, particularly when a peace settlement seems to outweigh the benefit of individual criminal prosecution. Moreover, the effects of law and transitional justice cannot be divorced from domestic politics. What is often overlooked in transitional justice is the (intended or unintended) political consequences that derive from the former’s actions and decisions.

During ongoing peace talks, transitional justice can be outright counterproductive. In order to reach a peace settlement, parties frequently endorse amnesties or opt for truth and reconciliation instead of criminal prosecution. The reasoning is that criminal prosecution and the pursuit of justice can make it more difficult to reach a peace settlement because there is the chance that “those under investigation may become less willing to disarm, de-mobilize, and make peace” (Urlacher 2016: 72), turning them into spoilers of the peace process. The pursuit of justice could also polarize societies further instead of facilitating reconciliation. As a result of pursuing justice, conflict could be prolonged leading to more civilian casualties (Goldsmith and Krasner 2003).

With these consequences in mind, there are alternative methods to transitional justice. Countries like Cambodia, El Salvador, Haiti, and South Africa have granted amnesty and installed truth and reconciliation mechanisms as a means of restoring peace and democratic government (Scharf 1999). A sustainable peace settlement requires the cooperation of all conflicting parties, and it is not unusual to see “the metamorphosis of yesterday‘s war monger into today‘s peace broker” (Ibid.: 508).

However, international law limits the possibility of forgoing criminal prosecution when core international crimes, i.e., genocide, crimes against humanity, and war crimes, are committed. An amnesty for such crimes could be considered a violation of international ius cogens, and other states (and international criminal tribunals) would have to disregard such an amnesty (Ibid.). This does not mean that the prosecutor could not delay pressing charges until a peace settlement is reached as international crimes are not subject to a statute of limitations. The interest of justice may also provide a reason for the prosecutor not to initiate criminal proceedings when the benefit of a peace settlement outweighs the benefit of individual criminal prosecution.

As was noted in the case of Ivory Coast,

the international system’s determination to hold supposedly culpable leaders accountable can […] actually impede the peace process. As the ICC continues to pursue justice around the world, Ivory Coast can serve as a lesson regarding the futility of seeking justice for the sake of it – and the need to better understand post-conflict political dynamics before blindly seeking prosecution.

moody 2021

Even the UN Secretary-General acknowledges the need for being realistic “about the immediate impact of transitional justice processes in extremely challenging contexts” (UN 2023: 3).

Therefore, the belief that criminal prosecution is mandatory reflects the “legalist” idea that law is above politics (Rodman 2012). It fails to acknowledge that the law is a product of politics. It appears to be blind of the direct, intruding impact that such prosecutions may have upon the political make-up of the country. Subsequently, this may pose predicaments and dilemmas as to the peacebuilding route taking place in a post-conflict setting (Jarstad and Sisk 2008). Such a legalist idea tends to have a black or white view on criminal prosecution, considering it a legal obligation that ought not be compromised by political factors, including peace processes. Or, in the words of Richard Goldstone, “If you have a system of international justice, you’ve got to follow through on it. If, in some cases, that’s going to make peace negotiations difficult, that may be the price that has to be paid” (quoted in Rodman 2012: 64). But, as Rodman notes, if “peace processes fail, that price is likely to be paid by civilians in war zones, increasing the prospect of the very kinds of crimes that international tribunals are designed to deter” (Ibid.). Insisting on criminal justice would mean “to rule out conflict resolution processes that may include negotiations with those accused of criminal violence” (Ibid.: 66). The only alternatives would then be military intervention, regime change, or coercion, and more civilian victims.

Viewing transitional justice as an absolute imperative (i.e. justice must be done, or “fiat justitia, pereat mundus”) may actually harm ongoing peace processes. Although criminal justice is indeed part of the liberal peace framework and central to transitional justice, the timing when criminal justice is enforced is crucial, especially when there are peace talks underway. Otherwise, an uncompromising push for transitional justice may inadvertently cause damage to the peace process. In a blind pursuit towards transitional justice, the liberal peace framework may risk becoming a hindrance to its own success. An ongoing process of peace talks may expose the framework’s own limits of self-sanctioned overreach.

There is ample data to show that international criminal tribunals are not free from political influence. Proponents of international criminal justice often openly acknowledge that prosecution is an instrument to eliminate “hostile” political leaders (Posner 2005). International criminal tribunals are also utilized to cause political change in societies by removing “evil political actors from power” and delegitimizing the political regime these politicians represent (Greenawalt 2007). International criminal justice would contribute to peace by challenging political authority and delegitimizing former political elites (Stahn 2019). This means that they also interfere directly with peace processes. Former ICTY Chief Prosecutor Justice Richard Goldstone justified the arrest of Karadžić and Mladić also by pointing out that they would be excluded from the negotiation of the Dayton Peace Accord (Greenawalt 2007). This is a case of international criminal law and justice in action, certainly, but is also an example of imposing the Court’s preference on a peace process and its outcome.

3 Kosovo: the Limits of the Liberal Peace Framework

3.1 Pattern of Alignment

Kosovo’s path to statehood evolved over the years through the support of, and close cooperation with, the United States and key European allies, most notably the United Kingdom, Germany, France and Italy. Kosovo succeeded in its foreign and security policy when it aligned its interests and actions with these states as key drivers of Kosovo’s liberation, and later, its independence. Successive Kosovar governments committed to the implementation of the internationally-supervised liberal peace framework, proving themselves trustworthy partners along the way. Regardless of who composed the government of the day – be it the “war-wing” parties or LDK – the trust and cooperation extended for the implementation of the peacebuilding paradigm was high.

This pattern of alignment began to take shape with the internationally-sponsored talks at the Rambouillet Peace Conference in 1999 when the Kosovo delegation accepted the deal whereas the Serbian side refused to do so (Weller 1999). What ensued was a 78-day bombing campaign against Serbia/rump Yugoslavia by NATO to stop the ethnic cleansing of the Albanian population from Kosovo (Ignatieff 2000; Judah 2000). The so-called “Military Technical Agreement” signed between NATO and the Yugoslav government on 9 June 1999 in the town of Kumanovo in North Macedonia (NATO 1999), paved the way for the withdrawal of Yugoslav forces from Kosovo and the simultaneous deployment of KFOR and the UN administration. This pattern of collaboration continued after the war when the Kosovar side agreed to a swift DDR process for the KLA (UN 1999b), followed by the acceptance and proactive willingness to collaborate with UNMIK as the administrative authority in Kosovo.

Later, in 2008, following the internationally-sponsored talks with Serbia on Kosovo’s future status, the Kosovo government accepted the UN envoy Marti Ahtisaari’s proposal which recommended independence that would commence with a three-year period of international supervision (UN 2007). Striving to advance its international political and legal position, Kosovo government accepted an agreement on the normalization of relations with Serbia in 2012, followed by other agreements along the way. It is noteworthy to highlight the agreements of 2013 and 2015 respectively – agreed by PDK and LDK-led governments – which envisioned the establishment of an Association of municipalities for the Kosovo Serb minority community (EEAS 2022).

The only time when this pattern of alignment was really put to the test was in 2017. In the context of ongoing talks between Kosovo and Serbia, Kosovo’s President Thaçi and Serbia’s President Aleksandar Vučić seemed prepared to agree to a controversial land swap deal and in this way apparently settle ongoing disputes between their countries (Politico 2018). However, as the deal didn’t find consensus between the US and EU, Kosovo quickly fell back in line and abandoned the idea of a land swap.

3.2 The Disrupted Pattern

Politics in Kosovo experienced seismic tremors when in 2020 a relatively new political party called Vetëvendosje (VV, meaning Self-determination) came to power for the first time. VV’s rise came at a time when there was an intensification of peace talks between Kosovo and Serbia whose final aim is supposed to be a comprehensive normalization of relations between the two countries (EEAS 2022). However, the VV-led government’s barricaded approach towards these talks caused a rift in relations between Kosovo and the US/EU.

While in opposition, VV and its leader Albin Kurti had long been critics of the internationally-sponsored peacebuilding paradigm being imposed, as they viewed it, upon Kosovo. Their main political leitmotif was “no negotiations, self-determination”. They opposed the Ahtisaari-facilitated talks with Serbia, which they considered would only beleaguer Kosovo’s side further and force it to more compromises. Further, they viewed the UN administration and later the EU mission as neo-colonialist regimes that were stifling the citizens’ legitimate and democratic desire for self-determination (Visoka 2019). According to their reasoning, although Kosovo declared independence in 2008, the country would still be governed by “an unelected and unaccountable international administration” (quoted in Björdahl and Gusic 2015: 280). It follows that for them the mainstream parties – PDK, AAK, as well as LDK – were not only corrupt, but the concessions they made in negotiations with Serbia were tantamount to treason.

It is no surprise, then, that when VV and Kurti came to power, the pattern of alignment with the international community experienced a sudden disruption. During his first term in office as Prime Minister of a coalition government with LDK (February-June 2020), Kurti pushed back on the idea of an Association of Kosovo Serb Majority Municipalities – agreed in 2013 (see above) – despite the US and EU demanding its establishment. When his government fell in June of that year, Kurti publicly accused the US of orchestrating its collapse (RFE 2020).

In September 2020, under the auspices of US President Trump, the new government led by LDK signed the so-called “Washington Agreement” which was meant to incentivize a political rapprochement between Kosovo and Serbia through economic cooperation (CNN 2020). However, in snap elections of March 2021, VV won again (this time a landslide victory). Kurti as Prime Minister immediately resumed his policy of recalibrating the talks with Serbia – which he considered to be highly unfavourable towards Kosovo – and delaying, if not outright rejecting, the establishment of the Association.

In 2022, the US and EU signalled that Kosovo would gain prospects for membership in the Council of Europe (Euractiv 2022) if it constructively engaged in the normalization process. However, around the same time, the government started to enforce the removal of Serb license plates, which were still used illegally in Kosovo. Although these were illegal number plates, the international community urged caution and generally viewed the Kosovo government’s actions as too direct and untimely. Their advice was that such actions should first be hashed out within the framework of Brussels-facilitated talks. The government of Kosovo begged to differ (The Guardian 2022). In response, Kosovo Serbs resisted and withdrew from all Kosovo government and municipal institutions, including police and justice (RFE 2022). New local elections, which were held in the country’s northern, Serb-majority municipalities, were boycotted by the Serbs. Following the election of Albanian mayors there, the situation escalated and led to violent clashes between the local Serbs and KFOR.

Despite the precipitating security situation on the ground, Brussels continued to facilitate talks between Kosovo and Serbia. In February 2023 the EU mediated an agreement between them which, among other points, confirmed the establishment of the Association. Given his track record, it may have seemed surprising that Prime Minister Kurti was suddenly in favour of such an agreement. But in hindsight, it’s not as if there was a change of heart from his side. It was his government’s way of trying to correct mistakes of past agreements, as they viewed them, by underlining issues of sovereignty and territorial integrity as preceding the creation of any municipal association (Weller 2023). Moreover, soon after that his government still came under fire for refusing to de-escalate the situation in northern municipalities and to expedite new local elections. After the above agreement, it seemed even more obvious they were finding excuses to postpone the establishment of the Association. This eventually led to the US and EU imposing sanctions on Kosovo (Financial Times 2023).

The situation escalated in September 2023, when Serb paramilitary forces attacked the Kosovo Police in the north, killing one police officer and wounding another. It was a clear sign that the security situation had become very fragile and that a new armed conflict could not be excluded. There were clear indications that official authorities in Serbia were involved in the attack, and that Serbia was willing to escalate (RFE 2023). In response, Kosovo government’s actions in northern municipalities were seen to be taken without coordination with international actors. This again triggered reactions by the EU and the US, opposing such moves as counterproductive to achieving normalization through negotiations (RFE 2024).

Kurti’s government sees its actions in the north as an attempt to spread sovereignty in a territory which until recently had been beyond Prishtina’s reach. Its stance towards the talks with Serbia shows that it has serious reservations about the whole process, including the legitimacy of EU mediators who were often viewed as biased (Weller 2023). However, such a stance has been met with disapproval and condemnation by the US and EU. The premature termination of NATO’s “Defender Europe 2023” and the EU withholding projects worth millions of Euros allocated to Kosovo were clear signs that Kosovo and the US/EU were on a confrontation track (Koha Ditore 2023). In February 2024, the US and EU not only refused to lift the sanctions but also publicly threatened to stop supporting Kosovo internationally if the latter continued to act unilaterally and without coordination with them. In May 2024, Kosovo’s application for membership to the Council of Europe was removed from the agenda because of Kosovo’s unwillingness to establish the Association (AP News 2024). The deteriorating security situation in northern municipalities also led KFOR to switch to “combat readiness” mode and to increase its military presence in Kosovo. With this, any prospects of membership in the NATO Partnership for Peace have also diminished significantly.

4 Diktat by Court Decree? Discussion

VV’s rise to power coincided with the indictment and arrest of former senior leaders of the KLA – Hashim Thaçi, Kadri Veseli, Jakup Krasniqi, and Rexhep Selimi – by the Kosovo Specialist Chambers. Thaçi was President of Kosovo when the indictment was issued. He immediately resigned from the position and handed himself over to the Special Court authorities. Veseli was leader of the PDK at the time. Both of them, together with Krasniqi and Rexhepi, were immediately flown to the Hague to undergo trial, which is still ongoing (Balkan Insight No date).

The indictments were issued in 2020. In the general election of 2019 VV had already emerged as the biggest party with over 26 % of the vote, followed closely by the LDK and PDK (CEC 2019). Admittedly, these were indications of an upward trend in support for this party. However, the snap general election of 2021 – less than a year after the above indictments – produced a landslide victory for VV with just over 50 % of the vote, followed by PDK with 17 % (CEC 2021). Such a dramatic increase in VV’s popularity, coupled with the plummeting of support for the other parties (not least the “war-wing” parties) can be attributed to a number of factors: there was already an amassed malaise in the electorate with mainstream parties. They had been in power for two decades and, despite progress in peacebuilding, state-building and institution-building, cases of corruption and nepotism had taken its toll. At the same time, VV with its anti-establishment rhetoric was increasingly viewed as the better alternative.

Nevertheless, the immediate events leading to the indictments ought to be scrutinised more closely. In the latter part of 2018, President Thaçi had established good relations with President Trump’s special envoy for the Kosovo-Serbia dialogue, Richard Grenell. Ideas of a political settlement that would involve a possible land swap between Kosovo and Serbia were discussed (Delauney 2018). It seemed that Thaçi and Vučić were willing to consider this option, and that the Trump administration was backing it (Walker and MacDowall 2018). The idea was at least initially abandoned, however, primarily due to concerns raised by some EU countries that such a settlement could set a dangerous precedent for Bosnia and perhaps North Macedonia (Ibid.). The Trump administration continued efforts to reach a peace settlement, beginning with economic normalization, and which could then spill over to more politically sensitive issues. A meeting at the White House with Thaçi and Vučić, to be hosted by President Trump, was arranged by Grenell for June 2020, to finalize and sign the agreement on economic normalization (Muharremi 2021).

As Thaçi was on his way to Washington, Jack Smith, then chief prosecutor at the Kosovo Specialist Chambers, issued an extraordinary press release announcing that he had filed an indictment against Thaçi, even though the indictment was confidential and would not be confirmed by a pretrial judge for months (Walker and Borger 2020). This led some to speculate that Smith wanted to pre-empt a possible amnesty deriving from a deal in Washington (Pineles 2025).

Speculations notwithstanding, the timing of the indictment appeared not to be a coincidence. The Specialist Prosecutor controls the investigations and decides if criminal proceedings before the Special Court are initiated, continued or terminated (Muharremi 2019). Since there is no oversight and accountability mechanism in place, the Specialist Prosecutor has unconstrained power over who is indicted and when. This wide prosecutorial discretion without any democratic accountability gives the Specialist Prosecutor not only legal but also political power (Ibid.). 4

The Special Court indictments sent real shockwaves across Kosovo’s political spectrum, especially the war-wing parties, and particularly the PDK. Thaçi and Veseli were always viewed as axis of the PDK (regardless of the fact that Thaçi in his role as President was no longer formally associated with any party). Their indictment not only put the main KLA leaders on trial. It decapitated the leadership of the PDK, one of the main political parties which evolved from KLA’s demilitarization and political transformation, and a leading political force in Kosovo. This, compounded by the lack of unity between the parties which derived from the KLA, and the continuing rivalry between them and the LDK, accelerated the creation of a favourable environment for VV to come to power.

The Special Court trials against senior leaders of the KLA are prime examples of the implementation of criminal justice as part of transitional justice (Muharremi 2022), itself a constituent part of a wider liberal peace framework in a post-conflict environment They are meant, in that sense, to contribute to the “pacifying effect of international criminal justice” (Krzan 2016: 81). However, as much as justice may best be served “when it is isolated from politics and power”, there may be a misplaced “international idealism” in place here since “it neglects political prudence” and “consistency slights the value of democratic accountability” (Goldsmith and Krasner 2003: 48). In other words, as much as justice in the form of Kosovo Specialist Chambers and the Specialist Prosecutor’s Office (or Special Court) may be led by some idealist principles of the liberal peace framework, its actions are not, and cannot be, taken in a political cocoon. As seen above, the Specialist Prosecutor’s legal actions had a direct effect on an ongoing political agenda involving international peace talks. Its indictments helped to delegitimise the parties deriving from the KLA. They contributed to the beheading of a (“war-wing”) political party, and simultaneously accelerated a changeover of political class in Kosovo.

By consequence, the above changes have had a seismic effect upon the EU-facilitated talks between Kosovo and Serbia. As described above, it was primarily the PDK and LDK that were responsible for adopting a foreign and security policy which was coordinated with the US and the EU. It was this pattern of alignment between local and international partners that brought Kosovo to a position of independence. This pattern has now been disrupted because the Kurti government views with extreme criticism the legacy of more than ten years of talks conducted by his predecessors. His attempts at diverting or changing former agreements – coupled with an increasingly belligerent and hostile government in Belgrade – have led to the near collapse of talks, as well as despair and open criticism by the US and the EU – the godfathers of liberal peace framework in Kosovo. A possible window of opportunity to reach a peace settlement between Kosovo and Serbia may well have been missed in the name of pursuing international criminal justice. This situation lays bare the limits of liberal peace framework which has no one but itself to blame for its attempted overreach.

5 Conclusion

Liberal peacebuilding endorses measures to address root causes of the conflict. This is the underlying logic in the UN’s Agenda for Peace. The very concept of transitional justice is that it applies to post-conflict situations. The idea that there could be no sustainable peace without justice may be true for post-conflict situations which are resolved by a peace settlement. The situation is different when there is no armed violence between the conflicting parties but there is also no peace settlement in place, as in the case of Kosovo.

Two and a half decades of international presence and absence of armed conflict may have created the illusion that a final settlement agreement between Kosovo and Serbia is a mere technicality. It has also created the illusion that all actors have accepted the liberal peacebuilding / state-building approach and have renounced violence as a means to settle the conflict. The liberal peace framework has had no alternatives.

“War-wing” parties were crucial for a successful peace process since 1999: demobilization and disarmament of the KLA, integration into internationally supervised liberal-democratic institutions, and engagement in a peace process (2006-2008 negotiations, acceptance of the Ahtisaari Proposal, engagement in the EU facilitated dialogue, agreement on normalization with Serbia and other agreements). They adapted themselves into the newly-established liberal institutions and aligned their interests with them.

Criminal trials constitute an important element of this framework; in the case of Kosovo, the Special Court is a vehicle that is supposed to further its norms and values. However, the timing of indictments coincided with government change, a subsequent transplantation of political power, and a deterioration of talks with Serbia (ICG 2024). The pursuit of transitional justice as part of the liberal peace framework may have certain side-effects (inadvertent or otherwise) that impact a country’s internal political power balance. In Kosovo, they contributed to the delegitimization of one strand of mainstream politics – the “war-wing” parties. Furthermore, where there are ongoing international talks, an untimely pursuit of justice may influence those talks by disrupting their flow. In the process, the idea of liberal peace framework is undermined; its completion interrupted. Therefore, in its pursuit for transitional justice, the liberal peace framework may become a hindrance to its own success, underlined by the limits of its self-sanctioned overreach.

Acknowledgements

The authors wish to thank the journal editors and the three anonymous peer reviewers for their valuable and thought-provoking feedback.

1

Pillar 1 on humanitarian assistance, led by the UNHCR (phased out by mid-June 2000); Pillar 2 on civil administration, led by UNMIK; Pillar 3 on institution-building, led by the OSCE; and Pillar 4 on economic reconstruction, led by the EU (UN 2006).

2

It should be highlighted that since beginning to write this article, there have been national elections in Kosovo on 9 February 2025. VV won 42% of the vote (almost a 10% reduction from 2021), whereas PDK 21% and LDK 18%, both of them increasing their vote by around 5% each. See: www.kqz-ks.org/zgjedhjet-e-pergjithshme/zgjedhjet-per-kuvend-te-kosoves-2025.

3

For a detailed background on the formation of Kosovo’s Specialist Chambers, but also the preceding transitional justice missions and courts on former Yugoslavia and Kosovo, see Muharremi 2019.

4

It also appears that Thaçi’s indictment was influenced by intra-US political controversies, which were fought out through the Kosovo Specialist Chambers rather than driven by considerations of justice. Subsequent actions by the Specialist Prosecutor prove this: Smith was also the prosecutor who filed two federal indictments in 2023 against Trump and others after leaving the Kosovo Specialist Chambers to become special counsel at the US Department of Justice in November 2022 (Pineles 2025). He was responsible for investigating Trump’s alleged malfeasance during his first term, including Trump’s attempt to overturn the 2020 election which he lost, and his purported fomenting of the attempted insurrection at the US Capitol in January 2021. But the indictments were ultimately dismissed in controversial legal proceedings in 2024 (Ibid.). Smith resigned in January 2025, ten days before Trump’s inauguration. Trump then fired all of Smith’s many prosecutors and staff soon after taking office (Ibid.).

In February 2025, Trump signed a directive targeting lawyers in a prominent law firm who had been retained by Smith while he was still special counsel, in Smith’s private capacity (Ibid.). Trump’s directive revoked security clearances for any lawyers who had worked on Smith’s case, making it more difficult to provide representation, since much of Smith’s work involved classified information and documents (Ibid.). Meanwhile, Grenell mounted several verbal attacks against the Kosovo Specialist Chambers decrying it as a political court wrongfully imprisoning Thaçi and publicly calling to stop funding it (Isufi 2025).

References

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