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The Kosovo-Serbia Agreement: Why Less Is More
The Kosovo-Serbia Agreement: Why Less Is More
Report 196 / Europe & Central Asia

Kosovo’s Fragile Transition

Kosovo has taken first state-building steps, but the inter­national community has not met its commitments to provide adequate support.

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Executive Summary

Kosovo has taken first state-building steps, but the inter­national community has not met its commitments to provide adequate support. A rule-of-law mission (EULEX), the EU’s biggest ever European security and defence policy (ESDP) operation, was agreed in February 2008 but has only started to deploy. The International Civilian Office (ICO), projected to supervise independence, is a shell. The UN still functions in part as an interim administration, negotiating arrangements for Kosovo Serbs with Belgrade. The Ahtisaari plan, on the basis of which 47 states have recognised Kosovo, has been undermined by the international organisations meant to help implement it. The EU and U.S. are struggling to come to terms with Russia’s attempts to portray its support for breakaway regions in Georgia as a mirror image of what they did in Kosovo. Most urgent now is for the EU to make EULEX fully operational before year’s end and use its leverage with a Belgrade government that wants membership to begin to make pragmatic accommodations to Kosovo’s new status.

Major violence has been avoided, €1.2 billion in aid pledged and the first tentative measures to produce effective statehood taken. But the calm surface is deceptive. Divisions between Albanian and Serb areas have widened, and prospects for a unitary state are evaporating. If a de facto partition hardens, the future of the two thirds of Kosovo’s Serbs who live south of the River Ibar division line will be problematic, pressure to redraw borders on ethnic lines throughout the former Yugoslavia will mount, and perspectives for EU membership for countries in the region will further dim.

Serb defiance has entrenched north of the Ibar, where Kosovo courts, border and customs posts do not operate, and Kosovo Serbs continue to refuse to cooperate with Kosovo institutions or the EU. On 11 May Serbia held elections in Kosovo that introduced new municipal authorities in Serb areas, against the explicit instructions of the UN Special Representative. Pristina reacted with restraint, expecting the EU to roll back the developments, but its expectations are too high.

EULEX has only a quarter of its planned 2,000 international staffers on the ground. Unwilling to face hostility in Serb areas, it has kept a low profile throughout Kosovo to avoid contributing to a geographic division of international operations. The EU and UN may have greater success brokering compromises with Belgrade’s new, more EU-friendly government, but Kosovo Serb leaders are close to Serbia’s now opposition DSS and Radical parties, and President Tadic has limited room for manoeuvre.

After months of indecision, Secretary-General Ban Ki-moon announced in June the start of the UN Mission in Kosovo’s (UNMIK) reconfiguration, opening the way for a handover of UN assets and premises. On 23 July discussions began between UNMIK and Belgrade on six areas of governance in Serb areas of Kosovo, including police, courts and customs. The UN is somewhat optimistic about the talks, but there has already been too much delay. Now that UN/EU reconfiguration technicalities were agreed on 18 August, the EU needs to deploy fully into Kosovo and become operational by 1 December, start working in the north under the UN umbrella, and make Peter Feith, its special representative (EUSR), the authoritative international figure as ICO head.

The most sensitive area is north of the Ibar, where all sides should agree on transitional arrangements which would be reviewed no later than early 2010 when the International Civilian Representative’s (ICR) powers are up for evaluation. This would amount in effect to temporary suspension of the constitution in part of Kosovo’s territory, while EULEX works under a UN umbrella as an intermediary between Kosovo Serbs and Pristina; supports re-opening courts which would temporarily apply UNMIK law; continues UNMIK’s policing model there; and oversees administration of customs without Kosovo symbols under a revenue-sharing arrangement between Pristina and the four northern municipalities that gives the latter an incentive to uphold the arrangements.

Since July Serbia has had a new government with conflicting priorities. President Tadic wishes to build upon the Stabilisation and Association Agreement (SAA) that the EU signed with him two weeks before the May election to make quick progress towards membership candidacy status and visa liberalisation. But his government, while softer in tone and more inclined to diplomatic methods than its predecessor, may be equally determined not to lose Kosovo. It wants a UN rather than an EU presence in Serb areas of Kosovo, and has not adequately accepted, defined or controlled its southern border. It is pressing the UN General Assembly to request an advisory opinion from the International Court of Justice on the legality of Pristina’s independence declaration. The contradictions are ultimately untenable. Belgrade and Brussels must address Kosovo soon if they are serious about Serbia’s EU prospects. In those talks, the EU should make strategic use of Serbia’s accession process to secure deployment of its field missions Kosovo-wide and prepare Serbia to accommodate itself to, if not formally recognise, its former territory’s new status.

Kosovo is proving to be a difficult test for EU security and defence policy. The political will mustered before the February joint decision on the deployment of EULEX and a EUSR is dissipating. At a time when the EU is engaged in tough talks with Russia about the deployment of a new ESDP mission to Georgia, it would be dangerous to show lack of resolve so close to home.

The effects are not yet clear on Kosovo of recent events in Georgia, where Russia has cited western actions in Kosovo as part of its justification for unilaterally recognising the breakaway territories of South Ossetia and Abkhazia as independent. Moscow may be more ready than ever to demonstrate its blocking capacities in the UN and tempted to encourage territorial fragmentation in the EU’s backyard; or it may be more ready to show its cooperative side after having demonstrated its new and troubling self-confidence. There is more need than ever for the EU to muster a strong foreign and security policy in its immediate neighbourhood.

Pristina/Brussels, 25 September 2008

The Kosovo-Serbia Agreement: Why Less Is More

The 19 April agreement between Kosovo and Serbia is an earthquake in Balkan politics: the ground lurched, familiar landmarks toppled, the aftershocks are still rumbling and the new contours are only slowly emerging.

The two prime ministers initialed a “First Agreement of Principles Governing the Normalisation of Relations” in Brussels. The brief, fifteen-point text is the first bilateral agreement between Serbia and its former province; as the title suggests, it’s unlikely to be the last. Curiously neither government has published it, though a reportedly authentic version leaked quickly in the Pristina press.

The spinning has been furious among advocates (the EU and both governments), opponents and commentators on both sides of the Atlantic. It is too soon to try to say what it all means. For now clarity comes from focusing on the few patches of firm ground.

There are only two sure things about the agreement, both are very important, and neither is spelled out anywhere in its text. The first is that the Serbian government has given up on keeping northern Kosovo in its system and has ceded its authority to Pristina. The second is that Belgrade has implicitly recognised that Kosovo is a state. These are tectonic shifts, whose effects will be felt no matter what happens with the early attempts to implement the deal.

The New Normalising 

The agreement’s title itself is misleading: ostensibly about “normalisation of relations”, the first twelve of the agreement’s fifteen points cover instead the governance of Kosovo’s Serb-controlled northern region. Only one point is explicitly about bilateral relations, and all it says is that neither party will block the other’s progress toward the EU.

The agreement specifies creation of an “Association/Community of Serb majority municipalities”.[fn]See Crisis Group Report Serbia and Kosovo: The Path to Normalistion.Hide Footnote The dual name is another sign of trouble ahead: for Serbia, it is a Zajednica (union or community) of municipalities, a governing entity newly established by the agreement, while for Kosovo, it is merely an inter-municipal association like one that already exists to help local governments coordinate and share expertise.

What Belgrade and Pristina have initialed is not so much an agreement as a set of principles that must be elaborated before they can be implemented, and the elaboration can be as hard-fought as the agreement itself. Consider the second point:

The Community/Association will be created by statute. Its dissolution shall only take place by a decision of the participating municipalities. Legal guarantees will be provided by applicable law and constitutional law (including the 2/3 majority rule).

The first sentence is silent as to who shall legislate the statute: the Kosovo Assembly (as Pristina prefers), the municipalities in question (which operate under Serbian law) or newly elected municipal bodies (under Kosovo law). The second implies the entity cannot be dissolved by a court decision, which suggests it is to have some kind of constitutional status. The third mentions a “constitutional law”, something that does not exist in the Kosovo system (but does in the Serbian one), and a “2/3 majority rule” of which Kosovo has at least two. It also mentions “legal guarantees”, but not what they are to protect. Most of the other points are as diaphanous as this one, amenable to different readings and needing a lot of follow-up work to give them life.

The Brussels House Style - And Its Limits

Followers of the history of EU mediation between Belgrade and Pristina will recognise this ambiguity as the Brussels house style: get the parties to commit publicly to an agreement whose content is to be filled in later, often by EU officials, out of the spotlight. The advantage of this approach lies in making possible agreements that would be politically deadly if spelled out in black and white. The cost, however, is steep. Both sides can feel cheated, and Belgrade especially tends to squeal when implementation begins on terms that were only implied in the text itself.

Much of the agreement depends on the cooperation of the northern Kosovo Serbs and their leaders, all of whom reject the deal and promise to resist.  This community has a bad reputation these days; they are portrayed as extremists, criminals, or at best simply too few in number to matter. That portrait is unfair: as those who spend time in the North know, its people are little different from their neighbors across the Balkans. Rejection of the Belgrade-Pristina deal comes from a bedrock patriotism that is common to most populations who see state borders shift against their will. Given the near-total absence of law enforcement, the area is surprisingly peaceful; since Kosovo declared independence in 2008 there have been only four fatalities in the North linked to the dispute. During tense times, improvised bombs explode and pot shots ring out, but are meant to warn or intimidate and seldom injure anyone. The only serious confrontations have pitted locals against NATO’s peacekeepers when the latter tried to remove barricades in 2011 and 2012.

While the two governments can, and should, implement a few measures right away, it’s impossible to guess the shape that northern Kosovo government will finally take. The two governments should coordinate the transfer of all security sector staff in Kosovo from Belgrade payroll and jurisdiction to Pristina, which entails: taking existing Kosovo Police (KP) off the Serbian payroll (many have been drawing two salaries, one from each state) and otherwise leaving them alone, and transferring the several hundred (reputed) undercover Serbian officers over to Kosovo payroll. This is less provocative than it sounds, because the “Kosovo Police” brand is widely accepted in northern Kosovo and seen as essentially local, regardless of who pays. It is important the two capitals work together to ensure no interruption in payment and no interregnum during which displaced cops can be recruited by organised crime.

Too much focus on the agreement’s specifics is likely to mislead; many of its provisions will be modified in practice and some may be simply forgotten over time.

Implementing the agreement will require both countries to amend the relevant legislation. One or both may have to amend their constitutions. The issues will have to be aired in public, members of parliament will have to take stands. Early signs are not encouraging. Kosovo’s Assembly approved the deal after a raucous late-night session featuring angry denunciations by the opposition Vetëvendosje (Self-Determination) party, whose supporters rallied outside the legislature. The Serbian parliament refused to vote on the agreement itself, claiming that to do so would constitute recognition of Kosovo; instead, it approved the government’s report on the negotiations. Earlier technical agreements between the two are held up on appeal to Serbia’s constitutional court on grounds that the government impermissibly changed by decree issues that must be regulated by law.

Northern leaders are still stunned by Belgrade’s move, which took them by complete surprise. They have yet to digest its implications, and early reactions bear a distinct resemblance to the five stages of grief: denial, anger, bargaining, and a few signs of depression and acceptance. They seem to hope the deal will die without their cooperation, but have no real plan. Some day soon, should Belgrade start to squeeze them in earnest, the residents of northern Kosovo will face stark choices. Their preference – the status quo, ignoring Pristina and largely integrated into the Serbian system – is no longer possible. There are many things Belgrade can do, starting with money (reducing or eliminating bonuses, cutting positions), and going on to dissolving municipal governments on a pretext and replacing them with more pliant staff, arresting key local leaders on real or trumped-up charges, closing various offices, and even the “nuclear option” of closing the two main employers, the university and medical centre. The limiting factors are legal (as in many ex-communist states, workers have many rights and are hard to fire) and political (they do not want to provoke a televised exodus, even a small one). One ironic component of this story is that Serbia will probably be tacitly encouraged to violate its own laws by the EU to make all this work, as doing it properly – amending all the relevant legislation and regulation – would take much longer than Brussels prefers.

A Self-Governing North, and the De Facto Recognition of Kosovo

The big irony here is that Belgrade’s preferences on implementing the deal are more threatening to the northern Kosovo Serbs than are those advocated by Pristina or the EU, because it is much easier to resist the latter. Serbia wants to form the Community quickly, out of the existing municipal governments; name a senior Serb police officer to take charge of integrating the illegal Serbian security presence into Kosovo institutions; and transfer the existing Serbian court to Kosovo jurisdiction. These steps would bundle the local population and their leaders into a loose Kosovo jacket that could be tightened over time as tempers cool. Kosovo wants to defer forming the Association until the OSCE organises local elections; supervise the transfer of security officials; and dissolve the Serbian court and staff a new Kosovo court. Northerners can easily boycott or sabotage all of those measures and probably remain confident that Pristina would stick to its positions.

The North has fourteen years of experience resisting pressure from Kosovo,[fn]See Crisis Group report North Kosovo: Dual Sovereignty in Practice.Hide Footnote with a large arsenal ranging from community pressure and civil disobedience to organised boycotts, intimidation and occasional pitched battles. But they do not know how to fight Belgrade. In the near term, the stronger Serbia’s influence over northern Kosovo is, the more that territory will integrate with Pristina; and the more Serbia pulls back, the more the North will maintain its independence from Kosovo. The clearest example of this paradox is Serbia’s plan to pass a constitutional law transferring its governing authority over Serbian municipalities to what it calls the “provisional institutions” in its “autonomous province” of Kosovo. Pristina would surely reject such a law and see it as an insult; yet it would leave the North no legal avenue to keep rejecting integration into the Kosovo system.

With or without a Serbian constitutional amendment, there is no way for northern Kosovo to keep saying it rejects the Belgrade-Pristina agreement but is otherwise a normal part of the Serbian legal and administrative system, because Belgrade is transferring it to Pristina’s authority. The North is thinking of three options. It can submit to integration into the Kosovo system, and work to expand the space of autonomy it offers them. It can declare independence, with an aim of negotiating a better deal with one or both of the states that claim it. Or it can strike out on its own without any formal declarations, subverting and obstructing the agreement where it can and hoping for a re-negotiation.

Curiously, all three courses lead toward the same place: a largely self-governing region, with some ties to a Kosovo whose independence it rejects, and with other ties to Serbia. The differences are in emphasis and symbolism, emotionally powerful but with modest practical implications. Pristina and Belgrade should refrain from sudden or provocative moves. So far there has been no surge in violence against Kosovo institutions in the North but that is a risk in the near future, with the North Mitrovica Administrative Office and its staff being the most obvious targets. These should be protected.

There is no point holding elections without significant local support. If the North is firmly opposed, there is a risk of violence against the organisers, and polls that require hefty KFOR protection would be of little use. Belgrade and Pristina need to explain, in detail, what the agreement means for northern Kosovo. They should take the time necessary to prepare the ground.

All previous accords were packaged as deals between Serbia and some external player – the UN or the EU – acting as Kosovo’s proxy. This is the first high level agreement between the two states, and shows that Serbia can deal with Kosovo as an equal. It is a kind of de facto recognition of Kosovo and that may be its greatest long-term significance. Whatever else happens, it is easier today to imagine that Serbia may one day formally recognise the independence of its former province. Yet the thaw in Belgrade-Pristina relations is still fragile and easy to reverse. Both capitals should make improving their bilateral ties the priority, and should not allow lingering disagreements over northern Kosovo to impede them. Better state-to-state relations are much more important than administrative details governing the North.