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The Kosovo-Serbia Agreement: Why Less Is More
The Kosovo-Serbia Agreement: Why Less Is More
Op-Ed / Europe & Central Asia

Setting Kosovo Free

Originally published in Today's Zaman

Kosovo has been set free. The 90-plus states that recognize it lifted the Balkan state’s unique form of “supervised” independence on Monday, making it a fully sovereign entity.

The new country has accomplished much since declaring independence from Serbia in February 2008, but, despite this week’s welcome and deserved step, this is no time for its partners to walk away thinking the job is done.

Kosovo’s progress towards peace and democracy was not a guaranteed outcome four years ago, even for the countries that recognized it quickly, including the United States, France, the United Kingdom and Turkey. There were fears that hardliners from Serbia would try to force Kosovo back into their country, from which it split de facto after a war with Belgrade in 1999. For several days, Serbian nationalists rallied in Belgrade against independence, attacking foreign embassies and businesses, causing at least one death. The then-Prime Minister Vojislav Kostunica proclaimed: “As long as we live, Kosovo is Serbia. Kosovo belongs to the Serbian people.”

But Kosovo has since shown that, though it has a clear ethnic Albanian majority, it can be a country for all its people: Serbs, as well as Turks, Roma and others. In 2008, Kosovo accepted the Comprehensive Settlement Proposal brokered by former Finnish President and Nobel Peace Prize laureate Martti Ahtisaari, even though Belgrade refused to, and ever since, “the Ahtisaari plan” has formed the blueprint for Kosovo’s development. In over 60 pages it provided recommendations to Pristina on how to address human rights, decentralization, religious and cultural heritage, economic and property issues, security and justice and the international presence. The international community was invited to supervise, monitor and have all necessary powers to ensure the plan’s effective and efficient implementation.

Ultimately, Kosovo took most of the burden of incorporating the plan into its new constitution, passing laws, and taking concrete steps, particularly on minority rights. State-level elections, whose results were recognized by all participating parties, were held in 2010 and a coalition government, including a Serb party, has held together since. It was helped along the way by the European Union, United States and Turkey, especially. The European Union mission, EULEX, helped strengthen the rule of law, especially the functioning of the police and the courts. Turkey provided much political and economic support, and tried to build confidence with Belgrade to encourage Serbian leaders to see Kosovo independence as less threatening than they did in 2008. In July, Kosovo’s international supporters in the International Steering Board, where Turkey plays an active role, determined that the government had implemented Ahtisaari’s terms and could take the necessary measures to end supervision in September.

Kosovo demonstrates how even after a short but vicious war, a managed transition to independence is possible. It received a big boost in July 2010 when the International Court of Justice issued the opinion that its declaration of independence was not against international law. But the big challenges that remain show how difficult it is to establish the bases of a democratic multi-ethnic state. Most importantly, it is not recognized by Serbia, which retains an important presence in Kosovo’s Serb majority municipalities north of the Ibar River, where Pristina institutions are not accepted by local Serbs and cannot operate. Kosovo does not have full control over its northern border. It is not allowed to join many international organizations, to have its own phone code, or even to participate in the Olympics. Its development will be stunted unless these challenges can be overcome.

After much pushing and prodding, Kosovo and Serbia sat down to an EU-mediated technical dialogue to make agreements on how to share cadastral records, recognize diplomas, ensure that Kosovo could participate in regional forums and manage their shared border. While the agreements exist on paper, few steps have been taken to implement them. The political will, especially in Belgrade, is not there. And the election this spring in Serbia of a more nationalist government, which has promoted the partition of Kosovo in the past, is likely to make further agreements more difficult.

After the festivities and congratulatory speeches, the Kosovo government will need to continue the hard work of honoring the Ahtisaari plan. It should do more to encourage its Serb citizens to feel like full members of society and political life. The return of displaced Serbs is one area where Kosovo has failed miserably and done much worse than its neighbor Bosnia and Herzegovina. These Serbs require more help from the government to stop the rash of violent incidents that have targeted them in the past months. They deserve better access to official services in their native language and their own fully independent TV channel. A mechanism needs to be put in place to ensure that their numbers in parliament are not cut. Kosovo’s biggest challenge -- to gradually engage with its Serb citizens living in the north to normalize its presence there, in cooperation with Belgrade -- is still ahead of it.

Managing the Serbia-Kosovo relationship, and the protection of Serb rights in Kosovo and minorities in Serbia, is key to maintaining stability in the Western Balkans. Tensions can still quickly boil over, as they did in July 2011, when an officer was killed during a Kosovo police operation in northern Kosovo, or if murders, like the one of two elderly Serbs in July 2012, are repeated. Kosovo should stay the course but so should its international supporters. Kosovo still needs extensive monitoring and support, especially from the European Union, in which it seeks eventual membership, and from its strongest regional ally, Turkey. There can be much congratulatory back-slapping now, but it’s still too early to say that the Kosovo conflict is finally resolved.
 

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.