163 CDS 07 E rev 2

Original: English

 

NATO Parliamentary Assembly

 

 

 

 

 

 

 

 

 

 

 

Special Report

 

 

 

 

Vitalino CANAS (Portugal)

Special Rapporteur

 

 

 

 

 

 

 

 

 

International Secretariat                                                                                                 6 October 2007

 

TABLE OF CONTENTS

 

 

 

I.         Introduction.. 1

 

II.         Kosovo, a territory in transition.. 2

A.      A short chronology of Kosovo’s recent history. 2

B.      Kosovo under international administration.. 2

C.      Achievements and challenges of Kosovo’s transition.. 3

1.      Measuring progress in Kosovo: the issue of standards.. 3

2.      Institutional and political achievements.. 3

3.      Economic development. 4

4.      Building a multiethnic society. 5

5.      Security Sector Reform.. 6

 

III.        The Kosovo Status Process.. 7

A.      Status vs. standards.. 7

B.      The Ahtisaari process.. 8

C.      The UN process.. 9

D.      The Troika process.. 10

E.      Position of the key players.. 10

 

IV.       Scenarios for the future.. 12

A.      Will current negotiations lead to a negotiated settlement?. 12

B.      What are the prospects for a UNSC resolution?. 13

          C.      What would be the consequences of a unilateral declaration of independence?. 14

1.      For Kosovo and Serbia. 14

2.      For the International Community. 15

 

 

 

 

I.               Introduction

 

1.       The year 2007 was predicted by many to be the year of Kosovo. Eight years after the end of the conflict there and 15 years after the beginning of the break-up of the former Yugoslavia, the last unresolved issue in the Balkans was finally going to be settled. Yet, as the end of the year approaches, prospects for a resolution of the status issue appear uncertain. Meanwhile, the situation on the ground remains tense.

 

2.       A lot has been achieved in Kosovo since 1999 through the unprecedented engagement of the international community and the strong commitment of Kosovo’s provisional institutions to the reconstruction effort. Nevertheless, many issues and problems remain unresolved. The uncertainty linked to the unresolved status of the province appears to have undermined reconstruction efforts and prevented full reconciliation between Kosovo’s communities. Kosovo Serbs and Albanians live side-by-side without real integration, in an atmosphere still marked by mistrust. Realising that decisive progress would only be achieved once the status question is clarified, the United Nations decided at the end of 2005 to initiate talks with Belgrade and Pristina with a view to a final settlement.   

 

3.       Unfortunately, the two parties have so far been unable to reach an agreement.  One complete cycle of negotiations under the auspices of UN Special Envoy Martti Ahtisaari has been exhausted without even partial rapprochement between the two sides. Ensuing discussions in the UN Security Council (UNSC) have also faltered. A second cycle of negotiations started in August 2007, led by a troika of negotiators, who are expected to report back to the United Nations on 10 December 2007.

 

4.       In the meantime, the status process has created high expectations. While UN Security Council Resolution 1244 (UNSCR 1244) of 10 June 1999, which marked the end of the conflict in Kosovo, sealed a compromise which was deemed satisfactory by all parties at the time, the 8 years since have created a situation which most have come to consider as unsustainable. In the course of recent negotiations, the many promises and statements made on all sides have created a momentum that is now difficult to stop. This momentum seems to be leading towards the independence of Kosovo, with or without Belgrade’s consent, and with or without a decision by the Security Council. This prospect raises a number of extremely difficult issues, not only for Pristina and Belgrade, but also for the region, and for NATO and EU allies. It is also a reminder that the stability of the Western Balkans is a vital component of Euro-Atlantic and European security.

 

5.       The international community’s record in Kosovo is nuanced. While the Kosovo Albanians’ aspirations had already become clear by the mid 1990s, the international community failed to address their concerns as part of the Dayton Accords which put an end to the Yugoslav wars. In 1998-1999, it reacted promptly to indications of ethnic cleansing in Kosovo, but NATO’s military campaign, conducted without an explicit mandate from the Security Council, was not exempt of controversy and criticism. UNSCR 1244 marked the beginning of a new phase in the international community’s involvement in Kosovo. It organised one of the most ambitious international post‑conflict operations in recent history. Everything should be done to complete this effort through a peaceful resolution of the status issue, otherwise the international community would be betraying its commitment and would risk ruining its 12 year long effort to bring stability and prosperity to the Western Balkans.

 

6.       With this in mind, this report attempts to provide a picture of the current state of the status process. It starts with an overview of the current situation on the ground and an assessment of the achievements of reconstruction efforts engaged in since 1999. It then describes the different stages of the status talks, before presenting possible scenarios for the coming months. This report is a preliminary draft, which will be updated in the course of 2008.

 

II.             Kosovo, a territory in transition

 

A.            A short chronology of Kosovo’s recent history

 

7.       Kosovo’s history is a complex one. As the rest of the Balkans, Kosovo has been at the centre of struggles for power and territorial supremacy, and come under multiple sovereignties. Its history, as far back as the sixth century, features prominently in today’s arguments about the future status of Kosovo. 

 

8.       The recent history of the province is characterised by a major shift in demographics (whereas before World War II, Serbs constituted nearly 50% of the population of Kosovo, this population is today over 90% Albanian), and by a growing aspiration by the Kosovo Albanian population to self-government.

 

9.       In the early 1990s, the revocation of Kosovo’s status as an autonomous province, and the break-up of former Yugoslavia, prompted new calls for independence among Kosovo’s Albanian population. The initial period of non-violent action was followed by the constitution of the Kosovo Liberation Army (KLA), which started armed resistance against the Belgrade regime. Tensions rose in 1998, as Belgrade’s repression of Kosovo’s Albanian population intensified, prompting a reaction from the international community with a first wave of diplomatic pressure on Belgrade. By the beginning of 1999, the situation had further deteriorated. 

 

10.     In January 1999, the Contact Group (consisting of representatives of the United States, Russia, the United Kingdom, Germany, and France) demanded that Belgrade and Kosovo Albanian leaders accept a detailed “Interim Agreement for Peace and Self-Government in Kosovo” (the “Rambouillet Agreement”). Belgrade rejected the peace plan and instead intensified its military and paramilitary activities in Kosovo. In response, NATO decided to launch an intensive bombing campaign, which lasted 78 days until Belgrade agreed to a cessation of hostilities.

 

11.     On 10 June 1999, the Security Council adopted UNSCR 1244, based on Chapter VII of the UN Charter, which continues to serve as the blueprint for Kosovo’s future. The main objective of UNSCR 1244 was to lay the ground for the stabilisation and reconstruction of Kosovo under international supervision. The resolution authorized the deployment of the NATO-led Kosovo Force (KFOR) to implement the ceasefire and provide for security in the province. It also authorized a transitional civil administration, the United Nations Interim Administration Mission in Kosovo (UNMIK). UNSCR 1244 did not, however, include any decision on Kosovo’s status. While reaffirming “the commitment of all member states to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia”, it also mandated UNMIK to facilitate “a political process designed to determine Kosovo’s future status”.

 

B.           Kosovo under international administration

 

12.     At the end of the conflict, Kosovo was left with a ruined infrastructure and a large and rapidly returning refugee population. The UN High Commissioner for Refugees (UNHCR) estimates that 860,000 ethnic Albanian Kosovars fled or were deported to neighbouring states in the period 1998‑1999, many of whom returned quickly by the end of 1999. This movement of population was followed by a second mass departure of some 230,000 Serbs and Roma, who left Kosovo for fear of reprisals.

 

13.     The international community responded to the enormous challenge of reconstruction in Kosovo with an exceptional engagement and put an institutional architecture in place, which is in many ways unprecedented. In 2006, more than 6,000 staff were employed by UNMIK, whose running costs from 1999-2006 have been estimated at around €2.6 billion. The Security Council vested all legislative and executive powers in UNMIK as well as the administration of the judiciary. UNMIK is headed by the Special Representative of the UN Secretary General, who remains the ultimate source of authority in Kosovo. Nevertheless, UNMIK was also tasked with “organizing and overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement” and eventually with “overseeing the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement”.

 

14.     UNMIK could be best described as a joint venture of many different international organisations. The stabilisation and reconstruction effort led by UNMIK in Kosovo has been built on four ‘Pillars’. Pillar I deals with the Police and Justice. Pillar II oversees all aspects of administration in the region, including ministerial and municipal bureaucracy. Both Pillars I and II are under the direct leadership of the UN and UN agencies, such as the UNHCR. Pillar III of UNMIK’s administration is led by the OSCE and deals with institution-building and democratisation issues. Finally, the European Union is in charge of Pillar IV, which is tasked with “Economic recovery” as well as the supervision of Kosovo’s monetary authorities.

 

15.     The international civil presence is complemented by an international military presence led by NATO’s KFOR. KFOR, one of NATO’s largest military operations, was initially composed of some 50,000 personnel from NATO member countries, Partner countries – including, until 2003, Russia – and non-NATO countries. As the security situation improved, KFOR was progressively reduced to its current level, at around 16,000 troops. It was also reorganised into five regional task forces, which all fall under a unified chain of command under the authority of Commander KFOR.

 

C.           Achievements and challenges of Kosovo’s transition

 

1.             Measuring progress in Kosovo: the issue of standards

 

16.     While UNSCR 1244 provided the basic framework for reconstruction and institution-building in Kosovo, it did not include many guidelines about how to attain its goals. To fill this gap, UNMIK established a series of benchmarks to measure progress achieved by Kosovo’s institutions. These were systematized at the end of 2003, in a document entitled “Standards for Kosovo”, which included a list of 109 objectives to be completed in 8 areas: functioning democratic institutions; rule of law; freedom of movement; returns and reintegration; economy; property rights; dialogue with Belgrade; and the Kosovo Protection Corps. The “Standards for Kosovo” document was complemented by an Implementation Plan, which contained a detailed list of actions with set deadlines. This was further perfected in 2004, as standards were prioritised and mechanisms for review and assessment were put in place. These documents remain the main reference when assessing progress achieved in terms of institution-building and reconstruction in Kosovo.

 

17.     In May 2005, UN Special Envoy Kai Eide was given the task of conducting a comprehensive assessment of standards implementation. His report, presented to the UN Security Council in October 2005, concluded that progress had been achieved in several areas, but many challenges remained. This conclusion holds true today. The following sections will examine progress achieved in the following areas: institution-building, the economy, establishment of a multiethnic society, and security sector reform.

 

2.             Institutional and political achievements

 

18.     At the end of the conflict Kosovo was left in an institutional vacuum. One of UNMIK’s first priorities was thus the establishment of provisional institutions, as prescribed by UNSCR 1244. It is generally recognized that good progress has been achieved in terms of institution-building in a relatively short period of time.

 

19.     UNMIK worked with political factions to develop the Constitutional Framework for the Provisional Institutions of Self-Government (PISG), which was adopted in May 2001. The Constitutional Framework delineated the powers of UNMIK and of the future Kosovar institutions. These were established progressively during the course of 2002. They include an elected parliament; a government, headed by a Prime Minister; a President; a judicial system including four levels of jurisdiction; and 30 municipalities.

 

20.     A process of transfer of competencies from UNMIK to the PISG started in 2003. Most issues now fall within the mandate of the PISG. Reserved powers of the Special Representative include: law and order, appointing the judiciary, ensuring and protecting the rights of minorities, running the UNMIK Customs Service, monetary policy, external relations, administering public, state and socially owned property, adjudicating disputed residential property and administering abandoned residential property, and supervising the Kosovo Protection Corps. Additionally, UNMIK retains ultimate authority and is able to veto government and parliament initiatives.

 

21.     Good progress has also been made in building a public administration and a civil service, as well as governing institutions at the local level. As a matter of fact, public institutions are today overgrown and employ a disproportionate share of the population – some 10% of the local workforce.

 

22.     Four elections have already been held in Kosovo since 1999, two at the municipal level and two at the central level. These were generally assessed as free and fair. UNMIK recently announced that new local and parliamentary elections would take place on 17 November 2007. These should be the first elections to be fully administered by the PISG.

 

23.     The work of central institutions is said to have improved a lot. However, these still lack administrative capacity, resources and qualified support staff. This is true in particular of the Assembly of Kosovo, whose oversight of the government is imperfect. Implementation of legislation is also a major weak point. The justice system in particular is considered as the weakest institution, and in need of major reform.

 

3.             Economic development

 

24.     Economic developments in Kosovo offer a nuanced picture. While some indicators are favourable and indicate a positive long-term potential, others point to persistent weaknesses. Kosovo’s GDP is estimated at around €2.2 billion. While GDP declined by 0,2% in 2005, there were some signs of recovery in 2006 with an estimated growth of 3-4%. Nevertheless, the overall economic situation remains bleak. The World Bank estimates that around 37% of the population live in poverty, and 15% in extreme poverty. Unemployment estimates range between 35 and 50%. Meanwhile, the informal economy remains very developed.

 

25.     Kosovo’s budget for 2006 totalled approximately €714 million. A large share of this – some 70% - relies on customs revenues, which are collected and administered by UNMIK. However, other tax revenues also increased in 2006, which should allow for a reduction of the previous year’s budget deficit. This trend now needs to be further consolidated in a context of decreasing donour support. 

 

26.     Positive long-term trends include monetary stability (Kosovo’s main currency is the euro), low inflation, and a well-developed banking sector. A process of privatisation has also been initiated and good progress has been made. The Kai Eide report also saw great potential in Kosovo’s energy sector and natural resources, but pointed out that both would require major investments.

 

27.     Corruption remains an acute problem for Kosovo. According to Kai Eide’s report, corruption and organized crime are the biggest threats not only to Kosovo’s economy but also to its stability and to the sustainability of its institutions. For the past two years, the Kosovo Assembly promulgated many laws aimed at fighting corruption; nonetheless, the process is slow and lacks convincing commitment from the political class.

 

4.             Building a multiethnic society

 

28.     This is certainly Kosovo’s greatest challenge and the area where least progress has been achieved since 1999. The statistical office of Kosovo estimates its population at about 2 million, with 92% of Albanians, 5.3% of Serbs, and 2.7% of other ethnic groups.

 

29.     Kai Eide’s report referred to the interethnic situation, and to relations between the Albanian and Serb communities in particular, as “grim”. Most of the 150,000 Serbs living in Kosovo are completely isolated from the Albanian majority. About 60% live in enclaves in the southern part of the province, while 40% are concentrated in three municipalities in the North - Zubin Potok, Leposavic and Zvecan, as well as in North Mitrovica, which, following the mass departure of ethnic Albanians, has become the only urban centre of Kosovo Serbs. 

 

30.     Relations between the Albanian majority and the Serb minority are characterised by mistrust, and Serbs still exhibit a strong sense of insecurity. Although the security situation is generally stabilised, the March 2004 riots showed that interethnic violence can escalate rapidly. Then, some 50,000 Kosovo Albanian rioters across Kosovo engaged in two days of violence against Kosovo Serbs and other minorities, as well as against KFOR and UNMIK personnel trying to defend them. Although the actual trigger of these incidents remains unclear, it is generally recognised that this wave of violence was a result of the Kosovo Albanians’ frustration with the socio-economic situation in Kosovo, the development of parallel institutions in Serb municipalities and the failure of the international community to address their concerns. It is estimated that twenty people died and 5,000 Serbs were displaced as a result of this violence. UNMIK and KFOR were highly criticised for their failure to predict and react adequately to these incidents.             

 

31.     Nevertheless, rather than such highly publicised incidents, the feeling of unease among Kosovo’s Serb minority seems to be fed mostly by cases of low-level, interethnic violence and incidents – harassment, intimidation, looting, arson, illegal occupancy of property, etc. – as well as the impression that the authors of this violence have too often enjoyed impunity.

 

32.     One major challenge lies in the limited participation of Kosovo Serbs to the PISG.  The Constitutional Framework organises several mechanisms for the representation of ethnic minorities. In the executive branch, at least one Serb and one other minority must be included in ministerial positions. The Constitutional Framework also reserved 20 seats in the 120-member Assembly for minorities, of which 10 are assigned to Serb representatives. Additionally, Serb and minority representatives must be represented in the seven-member presidency of the Assembly.

 

33.     However, in practice, a majority of Serb parliamentarians have refused to participate fully in the Assembly work; while they take part in Committee meetings, they boycott plenary sessions. The Serb community also boycotted the 2004 parliamentary elections. Nevertheless, there are recent indications of the emergence within the Kosovo Serb political class of more pragmatic factions, which recognise that, whatever the outcome of the status process, Kosovo Serbs should remain in Kosovo and engage in the future institutions.  

 

34.     Representation of minorities in the administration also remains below the official target of 16.6%, at around 11%. However, limited participation of the Serb community is also a consequence of the non-recognition by their leaders of the PISG, a corollary of which is their refusal to receive salaries paid by Pristina. At the local level, Serb municipalities have established their own parallel systems of administration with strong links to Belgrade. These provide services to the local population in the fields of justice, education, health care, post, property registration, delivery of identity and travel documents, etc.

 

35.     Following the March 2004 riots, efforts to blend these parallel structures into the PISG were re-directed as part of a new initiative in favour of decentralisation. Implementation of this initiative, however, has not been entirely smooth. Five decentralisation pilot projects have been approved, but only three of these municipal units – Hani i Elezit / Ðeneral Jankovic, Junik and Mamushë / Mamuša – are operational. Transfers of responsibility to municipal institutions and capacity-building efforts have continued in 2006-2007. The two Kosovo Serb majority pilot municipalities of Gracanica and Partesh, however, have not been implemented and further decentralisation plans are now discussed in the framework of status negotiations.

 

36.     Little progress has been made on the issue of refugee return. Of the 230.000 people – mostly Serbs – estimated by the UNHCR to be displaced at the end of the Kosovo conflict in 1999, only about 16,000 have returned so far, of which 7,000 are Serbs. With lack of security and respect for property rights, added to uncertainty about future status, refugee return has virtually come to a standstill.

 

5.             Security Sector Reform

 

37.     As mentioned above, the security situation is generally stabilised. Corruption and organised crime are today considered as the main security threats in Kosovo. Progress has been made in building security institutions to address these threats. 

 

38.     The Kosovo Police Service (KPS) is a relatively successful institution, enjoying a good level of trust within the population. The EU Commission’s Progress Report for 2006 thus concludes that, in the reporting period, “the Kosovo police service has continued to make good progress towards becoming a credible and professional police force”. Responsibilities for police operations, including riot control have been transferred to it, with the international police in a monitoring role. The KPS is now in command of all 33 police stations and five out of six police regional headquarters across Kosovo – the Mitrovica HQ remains under international control. The war crimes and witness protection units also remain under the responsibility of UNMIK. The KPS is also one of the most multiethnic institutions; minorities represent 16% of the 7,215-strong force, with Serbs representing 10%. Mixed patrols are organised in areas with an ethnically mixed population.

 

39.     The Kosovo Protection Corps (KPC) has also undergone a major transformation, though its status remains somewhat ambiguous and its future role uncertain. The KPC was created as a by‑product of the demobilisation of the KLA and still includes today a large share of former fighters. It was meant to become a civil protection or civil emergency force. Its mandate included assisting in rebuilding the infrastructure; responding to disaster; conducting search and rescue operations; providing a capacity for humanitarian assistance in isolated areas; and providing assistance to UNMIK and KFOR if required. The KPC was not allowed to perform any defence, riot control or law enforcement tasks.

 

40.     Despite a difficult start, the KPC has slowly developed into a professional, efficient and disciplined organisation with 3,000 active personnel across six territorial zone commands, and a reserve of 2,000. Nevertheless, the KPC is still widely perceived as the KLA’s successor, which translates into a high popularity among Kosovo Albanians and wide mistrust among Kosovo Serbs. Additionally, it still suffers from the lack of clarity as to its future role and evolution. Many KPC officers and Kosovo Albanians expected it to form the base of a future army of Kosovo. Instead, the Ahtisaari proposal calls for the dissolution of the KPC and the establishment of a separate Kosovo Security Force. The future evolution of the KPC thus depends, perhaps more than that of any other institutions, on the outcome of status talks.

 

41.     This quick overview of the progress achieved since 1999 shows that significant steps have been taken towards institution-building, establishment of the rule of law and economic development in Kosovo. However, it also points to the fact that a lot still remains to be done. As explained further in this report, the shortcomings of Kosovo’s transition have been utilised by Belgrade and Moscow to delay a decision on the future status of Kosovo. The issue of standards implementation has thus become highly controversial.

 

42.     This controversy notwithstanding, it is widely recognised that the uncertainty connected with Kosovo’s final status has undermined political and economic reconstruction and societal reconciliation in Kosovo. The unresolved status question has encouraged each side to view the situation in zero-sum terms. Recent political developments in the province clearly show that each side continues to see the other as a threat and manoeuvre accordingly with final status in mind. This uncertainty has also negatively affected the international community’s achievements in Kosovo. For instance, with no clear idea of what the completed legal structure should look like, even fundamental rule of law reforms have stalled, as UNMIK has been wary of suggesting that Kosovo’s legal system should be wholly divorced from that of the rest of Serbia.

 

43.     Nevertheless, the unresolved status issue cannot be blamed for all the deficiencies of Kosovo’s transition process. Part of the blame lies with local institutions. The other part certainly lies with the international community itself. The heterogeneity of the international agencies and multiplicity of institutions have caused serious co-ordination problems. The articulation between UNMIK and KFOR has also added another layer of complexity. Hesitations regarding the issue of standards and how to assess progress towards standards implementation are also indicative of certain deficiencies in the planning phase and a failure to ensure the continuity of the international effort. The events of March 2004 were also widely interpreted as a failure by the international community to prevent and respond to interethnic violence. These and other problems have tarnished the international community’s record and its credibility with the local population. The launch of status talks should also be understood in this context.

 

 

III.          The Kosovo Status Process

 

A.            Status vs. standards

 

44.     UNSCR 1244 did not take any position on Kosovo’s future status. However, it provided that the international civil presence in Kosovo should “facilitat[e] a political process designed to determine Kosovo’s future status”. The start of such a process was initially conditioned by progress made by Kosovo authorities towards self-administration – what became known as the “standards before status” approach. Starting in 2004, it became clear that requesting the full implementation of all standards as a prerequisite for talks on the final status of Kosovo would be unrealistic. Progress on the ground was undermined by the situation of uncertainty created by Kosovo’s unresolved status. The “standards before status” approach came to be interpreted by locals as a way to postpone a decision on the final status indefinitely.

 

45.     Recognising this reality, the United Nations adapted their approach to the standards vs. status dilemma. Achievement of all standards was no longer the condition for the opening of negotiations on future status, but rather realistic and visible progress on the ground. Then, in its October 2005 report reviewing the implementation of standards, Ambassador Kai Eide recommended launching the status process.

 

 

 

B.           The Ahtisaari process

 

46.     In November 2005, the UN Secretary General appointed the former Finnish President, Martti Ahtisaari, as his Special Envoy, with a mandate to develop a plan for the resolution of Kosovo’s final status. The UN-led process followed a set of “guiding principles” agreed upon by the Contact Group countries (France, Germany, Italy, the United Kingdom, the United States, and Russia). These principles include notably the requirement that there should be no return to the pre-1999 situation, no partition of Kosovo and no redrawing of international borders in the region.

 

47.     A series of direct talks that took place from February-September 2006 and February‑March 2007 between representatives of Kosovo and Serbia failed to record any progress as both sides showed no inclination to abandon their irreconcilable positions. Serbia continued to insist that the territory remain its province. Kosovo Albanians, for their part, made it clear they would accept nothing less than independence.

 

48.     Other events contributed to complicate the process even further. In June 2006, Montenegro declared independence from Serbia following a referendum on self-determination. As a result, Serbian authorities engaged in the process of adoption of a new Constitution and called for new elections. The new Constitution was adopted by referendum on 28-29 October 2006, following a campaign which was dominated by the issue of Kosovo. The final document includes a controversial provision stating that Kosovo is an integral part of Serbia.

 

49.     Serbia’s referendum was also quickly followed by parliamentary elections, organised on 21 January 2007 and which led to the victory of the ultra-nationalist Radical Party with 28.5% of the votes, followed by the Democratic Party (DS) of President Tadic and the Democratic Party of Serbia (DSS) of Mr Kostunica. Kosovo was also a major topic in the campaign. The government was formed almost four months later, on 12 May 2007, after the DS and DSS finally agreed on the terms of a coalition. These events contributed to slow down the negotiations process. The electoral context also tended to radicalise positions in Serbia, thereby rendering a negotiated compromise even less likely.

 

50.     After months of fruitless negotiations, Mr Ahtisaari presented his plan, comprising a four‑page Report and the 63-page comprehensive Proposal, to the UN Secretary General Ban Ki‑moon. The Ahtisaari plan, forwarded to the Security Council on 26 March 2007, provides the foundations for the creation of an independent state of Kosovo with its own constitution, state symbols, security forces, and the right to become a member of international organisations. Settlement implementation is to be supervised through international bodies. After the end of a 120‑day transition period, UNMIK’s mandate is to expire and all legislative and executive powers are to be transferred to Kosovo’s governing authorities. Strong international presence is to be maintained on the ground. The Plan foresees the establishment of an International Civilian Office (ICO), structured along the lines of the Office of the High Representative in Bosnia and Herzegovina. The ICO is to be headed by an International Civilian Representative (ICR) – a post occupied by the EU Special Representative – and is to exercise important executive powers, such as dismissing ministers, overturning laws, etc., in order to ensure Kosovo’s implementation of its international obligations.

 

51.     The Ahtisaari Proposal itself does not mention independence but envisages Kosovo as a “multiethnic society, which shall govern itself democratically, and with full respect for the rule of law, through its legislative, executive and judicial institutions”. Decentralisation is meant to serve as the main tool guaranteeing Kosovo’s multiethnicity. Enhanced municipal powers and the creation of Serb-majority municipalities, proposed by Ahtisaari, aims to address “the legitimate concerns” of Kosovo’s Serbs and other minorities and to “strengthen good governance and the effectiveness and efficiency of public services throughout Kosovo”. It has been noted that minority rights, suggested by the Proposal, go far beyond European standards. According to the Ahtisaari plan, Serb-majority municipalities would be free to decide their resource allocation priorities, would have the right to benefit from assistance from the Serbian government, would exercise enhanced powers in the fields of education and healthcare, as well as a monopoly over cultural policy. The Proposal also provides for the creation of protection zones and privileges for the Serbian Orthodox Church. More importantly, extra seats in the national parliament and double-majority rules are suggested as a mechanism to prevent the outvoting of Serbs on questions pertinent to the scope of their vital interests. It is worth noting that Kosovo’s Albanian majority has readily accepted these extensive minority rights, although they believe, perhaps not without reason, that they might prove obstructive to achieving state “functionality” in practice.

 

C.           The UN process

 

52.     The presentation of Ahtisaari’s report initiated an intensive phase of negotiations in the UN Security Council. The Ahtisaari plan has been endorsed by Kosovo Albanians, by NATO, the European Union and their member states individually. In contrast, Kosovo Serbs, supported by Serbia and Russia, strongly oppose the plan. In this context, finding a consensus in the Security Council, where each one of the permanent members has a veto right, has proved impossible. Five unofficial draft resolutions were circulated to UNSC members. Each represented a greater departure from the Ahtisaari plan. Concessions were envisaged on the issue of minority rights, autonomy of the Serb-populated areas, on the timeline of the implementation of the status decision, etc.

 

53.     In April 2007, following a Russian proposal, the UNSC decided to send a fact-finding mission to the region to enlighten its members about the situation on the ground and give them additional elements to make an informed decision. The visit took place on 25-28 April, and the report of the mission was presented to the Security Council in May. On the implementation of standards, the report concluded that Kosovo’s provisional institutions had managed to make serious progress, but that more needed to be done, particularly to improve the living conditions of Kosovo’s non-Albanian communities and the return of internally displaced persons (IDPs). On the status issue, the report concluded that the sides remained far apart, although all agreed that the current status quo was not sustainable.

 

54.     Around the time of the G8 summit in Heiligendamm, Germany, in June 2007, a new consensus emerged in favour of a new round of negotiations and of postponing a final status decision. This solution satisfied Belgrade, which argued that previous negotiations had failed in part because they had a pre-conceived outcome. In its view, a new round of real and open-ended negotiations might lead to a compromise solution. It would also give the ruling coalition time to consolidate its position, start implementing its reform agenda and thereby erode the influence of radical views in Serbia to the benefit of the government’s pro-European agenda. This view, however, was rejected by Kosovo Albanians, who insisted that the status process had already suffered too many delays and warned that further postponement would only exacerbate impatience among Kosovo’s population.

 

55.     The latest draft resolutions circulated to UNSC members reflected this shift in the international community’s approach. They put aside a decision on the final status, and the automatic implementation of the Ahtisaari proposal, and called for a new round of negotiations. However, none of these proposals managed to gather support from all UNSC members. As a result, on 20 July, the co-sponsors of the final draft resolution (the United States and European members of the Security Council) issued a statement, in which they expressed their regrets that no agreement could be found in the Security Council and calling for discussions there to be put on hold. In a statement on 1 August 2007, the UN Secretary General welcomed this initiative, as well as the new arrangements agreed to by the Contact Group for pursuing negotiations between the parties. He announced that the Contact Group would report back to him by 10 December 2007.

 

D.           The Troika process

 

56.     The new arrangements agreed to by the Contact Group include the appointment of a troika of negotiators: Frank Wisner representing the United States, Wolfgang Ischinger representing the EU, and Alexander Botsan-Kharchenko representing the Russian Federation. The first two rounds of negotiations were held at the beginning and at the end of August with each party separately. While the co-sponsors’ statement affirmed that “we continue to believe that the Ahtisaari Plan is the best way forward”, the troika negotiators have indicated on several instances that they would approve any arrangement that both parties agree to. This has been widely interpreted as meaning that the Contact Group is now willing to consider the partition of Kosovo as an option – which it had previously excluded.

 

57.     Initial indications from these negotiations offer little encouragement. However, the fact that both parties have accepted the principle of new talks and committed to negotiate in good faith is widely seen as a positive development.

 

58.     A complicating factor might be the prospect of municipal and parliamentary elections in Kosovo, which the United Nations announced would take place on 17 November 2007. Many fear that elections organised in a context of growing uncertainty and ongoing negotiations risk encouraging radical rhetoric and accentuate interethnic tensions in Kosovo. With this in view, the Head of UNMIK announced that elections could be postponed if they appear to threaten the progress of status talks.

 

E.            Position of the key players

 

59.     Kosovo Albanians consider the status quo as untenable and demand independence as soon as possible. They insist that they are committed to a multiethnic Kosovo and would guarantee the protection of minority rights in accordance with international standards. Kosovo Albanians further argue that any additional delay would be extremely detrimental. Kosovo and its population need a clear future trajectory. The current limbo precludes any further progress in the implementation of the standards and poses serious constraints on the country’s economic development. Kosovo Albanians also feel that they have already made major concessions during previous rounds of negotiations. Kosovo authorities regularly make their impatience with the international community’s hesitations clear. The latest sign of this impatience came with a statement by Kosovo’s Prime Minister that independence would be declared on 28 November 2007 no matter what. This statement was later nuanced and brought in line with earlier statements by Kosovo officials, which insist that, although a unilateral declaration of independence cannot be excluded, no hasty decision would be taken without consultation with Kosovo’s allies.  

 

60.     Belgrade, as well as Kosovo Serbs, firmly reject independence on the grounds that key clauses in UNSCR 1244 and key standards have not been implemented. These include, among others, the creation of a multiethnic society in Kosovo and the return of IDPs – primarily Serbs. Additionally, Belgrade argues that the security of the Serb population of Kosovo is not ensured; many continue to live in the fear of attacks and do not enjoy full freedom of movement. Many issues also remain concerning the protection of their property and cultural sites.

 

61.     Belgrade further argues that independence would contradict UNSCR 1244 and principles of international law by threatening the sovereignty of Serbia. Instead, Serbian authorities insist that, because Kosovo is a unique case, the international community should be more creative and propose a unique institutional set-up, moving away from models used in the past. In their view, the proposal made by the UN Special Envoy Martti Ahtisaari failed this test. Belgrade’s alternative is “supervised autonomy”. In this model, Kosovo authorities would rule over most issues relating to economic, social and cultural matters, while Serbia would retain control over foreign policy, defence, border control, monetary and customs policy, and the protection of Serbian religious and cultural heritage and human rights. Kosovo would also be in charge of some aspects of international relations, including regional co-operation and relations with international financial institutions. Such autonomy would be renegotiable after a certain period. Kosovo could also chose a special representation in Serbia’s institutions, or participate fully in the political institutions at the central level. Statements by Serbian officials also indicate that Belgrade would be open to international supervision over the return of displaced Serbs to Kosovo, the protection of cultural and religious monuments, and over security.

 

62.     Serbian authorities have repeatedly insisted that Belgrade’s positive track record of the past few years, its democratic credentials and contribution to regional co-operation and stability, should reassure the international community about Serbia’s intentions and its ability to administer Kosovo in full respect of international standards and bring the province into Euro-Atlantic institutions as part of Serbia.

 

63.     It should be noted however that certain Kosovo Serb officials have distanced themselves from Belgrade and, for various reasons, indicated that the independence of Kosovo would not necessarily be the worst option, and stated their readiness to engage with the future institutions.

 

64.     Moscow supports Belgrade’s arguments that key provisions of UNSCR 1244 and key standards have not been fulfilled. It further argues that the implementation of the Ahtisaari plan would undermine the legal principle of state sovereignty, as a Security Council resolution would impose its decision on a UN member – Serbia – without its consent. Russian diplomats also raise concerns about a precedent the case of Kosovo may set for other territorial disputes.

 

65.     Moscow’s arguments translated into a firm rejection of all draft resolutions presented by other UNSC members and a persistent insistence on the need for a negotiated solution. These disagreements come in the context of other tensions between Moscow and Western capitals – over missile defence, the CFE Treaty, NATO enlargement, energy security, etc. These add another layer of complexity to Kosovo negotiations, with some arguing that Kosovo is not a distinct issue for Moscow, but rather one element in a broader agenda of reassertion of Russia’s role and standing in the international arena.  

 

66.     US officials have been very supportive of the Kosovo Albanians’ desire for a quick settlement, which should lead to the independence of the province. They have also backed the Ahtisaari proposal, while repeatedly warning that a failure to reach a compromise solution might compel Kosovars to declare independence. In this event, US representatives at the highest level have indicated that the United States would be ready to recognise Kosovo’s statehood.

 

67.     The European Union has also officially endorsed the Ahtisaari proposal. However, some of its member states – Slovakia, Greece, Cyprus, Romania and Spain – are known to be cautious, due to traditional ties with Belgrade or fears of potential repercussions of Kosovo’s independence in their domestic affairs. Many of these countries would find it difficult to recognise the independence of Kosovo in the absence of endorsement by the UNSC. The EU’s diplomacy has focused on encouraging both parties to negotiate, mainly through the use of the carrot of EU enlargement. However, the EU seems to lack powerful “sticks” to influence the position of either sides, or that of Russia.

 

68.     In the meantime, the EU is also preparing to take over the leadership of the international presence in Kosovo from UNMIK. It has planned to deploy a 72-member delegation, supported by about 200 local staff to oversee the implementation of the Ahtisaari plan. Moreover, the EU is planning a European Security and Defence Policy (ESDP) Mission, headed by the ICR’s Deputy and comprising as many as 1,500 police officers, judges, prosecutors and customs officials with a mandate to monitor, mentor and advise local authorities on all areas related to the rule of law, order and security. However, no concrete step can be made until an official decision is made to start the transition from UNMIK to the EU mission.

 

69.     NATO’s situation and position are very similar. The Alliance also officially supports the Ahtisaari proposal, according to which it would remain the main military presence on the ground. However, NATO’s deployment in Kosovo relies on UNSCR 1244, and lack of agreement on a new UNSC resolution would raise serious questions as to the future of NATO’s presence.

 

 

IV.         Scenarios for the future

 

A.            Will current negotiations lead to a negotiated settlement?

 

70.     A negotiated settlement, although clearly the most desirable scenario, is generally considered as highly unlikely. The positions of the sides on the status issue are radically opposed, with Kosovo demanding nothing short of independence and Serbia rejecting any solution that would challenge its territorial integrity. Alternative, third-way solutions have sometimes been suggested. For instance, Kosovo could have a hybrid status, whereby it would be granted extensive powers of self-administration, including in matters of international relations – it could even be admitted as observer to the United Nations, but Serbia would retain some authority over the Serb-populated areas. However, it is hard to imagine that, after almost two years of negotiations, many unexplored scenarios remain.

 

71.     In this context, bilateral negotiations have focused so far on specific issues, rather than on the outcome itself. In particular, great attention has been given to the issues of decentralisation, protection of minority rights, and the status of Serb municipalities in the North and in the enclaves. It is believed that additional concessions on these issues could convince Belgrade to lift its objections, even if no one seriously expects it to agree positively to Kosovo’s independence. Thus, 13 out of 15 rounds of negotiations during the Ahtisaari process have dealt with these three issues. This is also reflected in the Proposal, in which they occupy a central place. Nevertheless, it is also widely recognised that the mechanisms that have been agreed to by Kosovo Albanians already go very far in terms of protection of minority rights – some say far beyond what is normally required by international or European law – and that they might prove inapplicable in practice.

 

72.     In terms of decentralisation and the status of Serb municipalities, however, all options have not yet been exhausted. Greater autonomy still could be given to these municipalities, and horizontal links could be established between them. However, Kosovo Albanians argue that they have already reached their “red lines” and that further concessions would put into question the ability of the new state to rule over its entire territory. They fear in particular the creation of a Serb entity in Kosovo on the model of Republika Srpska in Bosnia and Herzegovina, which would be able to veto any decisions taken at the central level.

 

73.     A more radical option still would be the partition of the northern part of Kosovo, where some 40% of the Kosovo Serb population is concentrated, and which enjoys close financial, infrastructural and administrative ties with Belgrade. This option has until recently been officially excluded by the international community and both sides have refrained from putting it on the table. Kosovo Albanians would find it difficult to accept independence on a territory that would be amputated from the start, and officials have vehemently rejected this scenario. Belgrade has also so far been cautious, fearing to incur the political costs of what could be seen as de facto recognition of independence for the rest of Kosovo. Nonetheless, there are some proponents of partition in Serbia, who argue that the northern parts of Kosovo should be seen as a natural extension of Serbia.

 

74.     Recent statements by officials involved in the negotiations seem to indicate a willingness to consider the partition of Kosovo as a possible option. Yet, although partition has sometimes been presented as the only way out of the current deadlock, it also raises a number of serious problems. First, partition would not solve all issues relating to the status of minority populations, as the majority of the Serb population of Kosovo lives in the enclaves in the southern part of Kosovo. An immediate risk is that dividing Kosovo would result in their exodus – a process that, according to some sources, has already started. Large-scale population displacements could cause instability in Serbia, not least because radical parties could use these groups’ frustration to recruit support. It would also have a detrimental impact on the safety and well-being of Serbs who would choose to remain in Kosovo.

 

75.     It is also unlikely that, following partition, the Ahtisaari plan, which places great emphasis on community rights and decentralisation, would be acceptable to the majority population who has perceived its provisions as a sacrifice necessary for the attainment of Kosovo’s independence in its present borders. In particular, the projected municipality of North Mitrovica, which Kosovo Albanians have accepted only in the context of a unified independent Kosovo, could turn into a zone of major interethnic tensions.

 

76.     Partition would mean not only the end of multiethnicity in Serbia and Kosovo, but it might also trigger a wider trend in the sub-region as a whole. For instance, observers have warned that ethnic Albanian populations of Serbia’s Presevo and Bujanovic regions see their future as dependent on the future status of Serbs of the Northern Kosovo. Partition might also undermine the fragile arrangements in the neighbouring former Yugoslav Republic of Macedonia* as well as in Bosnia and Herzegovina. Thus, an attempt to redraw borders along ethnic lines might encourage the resurgence of nationalist ideologies. Finally, partition would be a repudiation of the principles underlying the international community’s actions in the Balkans since the end of the Yugoslav wars.    

 

77.     Whether partition or any other concession could provide sufficient incentive to push the sides into a compromise solution is a hard guess. It is also unclear to what extent the international community can influence the position of the parties, for instance by guaranteeing the protection of cultural or religious sites, or through promises of integration. The prospect of EU and NATO enlargement are indeed clearly the most important and efficient lever. Although EU officials publicly insist that the issues of Kosovo and EU integration are separate and there is no conditionality between the resolution of Kosovo’s status and the EU integration process, the issue of EU enlargement is undeniably an element of the Kosovo equation. It has played a part in moderating the Kosovo Albanians’ demands and impatience. It is also an incentive in relations with Belgrade, although Serbian authorities have regularly dismissed any deal which would imply trading Kosovo for the EU. 

 

B.           What are the prospects for a UNSC resolution?

 

78.     A UNSC resolution endorsing Kosovo’s final status also remains the best possible scenario. However, in the absence of a formal agreement between the two sides, it seems unlikely that UNSC members would agree on a resolution based – in whole or in part – on the Ahtisaari plan. Options to this end seem to have been exhausted in the first round of UN discussions. It is difficult to imagine why Moscow would depart from its current position, unless it receives signals from Belgrade to this effect. Some have suggested that Russia could be convinced to shift its position as part of a “grand bargain” with the West. However, the stakes are too high for Kosovo to be treated as just one element in the disputes between Russia and the West.

 

79.     In another scenario, the UNSC could adopt a resolution to regulate the future international presence in Kosovo, even without a consensus on the status issue. There is indeed general agreement that the UNMIK framework is no longer able to perform its function properly and has lost credibility locally. Additionally, no one seriously challenges the format suggested in the Ahtisaari plan, which provides for a transition from UNMIK to the EU-led ICO. The final draft resolution presented to the UNSC in July aimed precisely at providing the legal basis for this transition. However, it was rejected by Moscow, which claimed that such a resolution should unambiguously be put under the aegis of UNSCR 1244. Such a requirement means that any new resolution could only be agreed to by Moscow if, at the same time as it provides for the new international presence in Kosovo, it also reaffirms the territorial status quo organised by UNSCR 1244. If Western UNSC members cannot agree to such a condition, they will need to organise the transition from UNMIK to the EU mission without new UNSC resolution, which would pose serious problems in terms of the legality and legitimacy of the new mission.

 

C.           What would be the consequences of a unilateral declaration of independence?

 

80.     So what would happen if the sides did not reach an agreement and the UNSC was unable to act? The current status quo has been recognised by all sides as untenable. Kosovo Albanians in particular have on several occasions expressed their impatience with the numerous delays in the status process. Additionally, several members of the international community have indicated they would back Kosovo in the event of a unilateral declaration of independence. Therefore, it is likely that in the absence of a negotiated settlement or agreement in the UNSC, Kosovo would be led to declare independence unilaterally. Such a scenario raises a number of very serious questions:   

 

1.             For Kosovo and Serbia

 

81.     A lot would depend on Belgrade’s reaction to Kosovo’s declaration of independence. Observers generally agree that fears of a new armed conflict are largely unfounded. No one seriously expects Belgrade to intervene militarily in Kosovo. Nevertheless, there are serious fears that a unilateral declaration of independence by Kosovo under present circumstances would favour radicalism in Serbia. Recent statements by Serbian officials indicate that Belgrade would most likely continue to claim sovereignty over the territory of Kosovo. This would create a situation of competing territorial claims, the implications of which would depend heavily on how both sides, as well as the international community, react. Some have suggested that, if granted adequate concessions, Belgrade could be convinced to adopt a non-obstructive posture, i.e. while officially maintaining its territorial claim over Kosovo, it would not act on this claim. NATO and the EU in particular would then need to decide how to deal with the issue of further integration of both entities within their structure.

 

82.     Whatever the scenario, the reaction of the Serb population of Kosovo is a major uncertainty. Observers usually predict that populations from the enclaves are more likely to seek to leave Kosovo, whether independence comes with partition or not. On the contrary, Kosovo Serbs from the northern regions are not expected to leave en masse. Rather, observers fear these northern regions might become a permanent zone of tension, where Pristina’s authority would be regularly undermined by calls for partition.

 

83.     All this illustrates why arrangements regarding the protection of minorities in Kosovo are crucial. Mechanisms need to be put in place that not only organise the coexistence of Kosovo’s ethnic communities, but also promote their integration and participation to a common project. The international community also has an important role to play in convincing Kosovo Serbs that Kosovo can be stable and provide the necessary protection for them to stay. Regrettably, the violent incidents of 2004 have seriously undermined the Kosovo Serbs’ confidence in the international community’s ability and willingness to protect them.

 

84.     Finally, it is also important not to forget that Serbs are not the only minority community in Kosovo and other communities equally deserve protection. This includes also Albanian populations in Serb-populated areas.

 

2.             For the International Community

 

85.     A unilateral declaration of independence would first and foremost put countries of the region in a difficult position. They would be faced with a hard decision whether to recognise Kosovo or not. There is no common position of Belgrade, but some Serbian officials have already warned that those countries which would recognise Kosovo should expect serious consequences in their relations with Belgrade.

 

86.     Other states outside the region would also have to decide whether to recognise the independence of Kosovo. This would seriously put the unity of NATO and the EU to the test. Whereas some EU and NATO members have made it clear that they would recognise an independent Kosovo with or without UNSC resolution, others are much more reluctant. In the absence of a co-ordinated decision, the process of integration of Serbia and Kosovo into Euro-Atlantic institutions would also be put on hold indefinitely.

 

87.     Another concern is the future international presence in Kosovo. Without an agreement in the UNSC, the transition from UNMIK to an EU-led mission would be put in great difficulty, especially if EU member states were unable to agree on a common course of action. The same is true of NATO’s current operations in Kosovo.

 

88.     As mentioned above, the issue of precedent also matters for many of the states involved in the negotiations. The ambiguity of international law on the relationship between territorial integrity and self-determination only reinforces these concerns. However, the prevailing opinion among international law specialists is that each case should be decided based on its own specificities and through ad-hoc arrangements. Western diplomats argue that the uniqueness of the Kosovo case has been recognised in UNSCR 1244, authorising “a political process designed to determine Kosovo’s future status”. Given its paramount role in maintaining the international order, the UN Security Council would have the legal authority to re-ascertain the inimitability of the Kosovo case, and the inapplicability of its solution to other territorial disputes, in a new resolution. However, in the absence a new UNSC resolution, it would be much more difficult to argue the no-precedent case.

 

89.     Legal issues notwithstanding, a unilateral declaration of independence by Kosovo is likely to encourage nationalistic claims elsewhere in the region or beyond, in territories such as Transdnistria, Nagorno-Karabakh, South Ossetia and Abkhazia. It would be in the interest of the international community as a whole to speak with a common voice to prevent or defuse further tensions in those regions. There are no gains to be had from adding to an already complex situation there.