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The Kosovo-Serbia Agreement: Why Less Is More
The Kosovo-Serbia Agreement: Why Less Is More
Report 218 / Europe & Central Asia

Setting Kosovo Free: Remaining Challenges

Kosovo deserves to celebrate today as the international community converts the “supervised independence” it achieved four years ago to full independence, but it must also do more to guarantee full protection of minority rights, especially those of the country’s Serb population.

Executive Summary

Kosovo has implemented much of the Ahtisaari plan – the blueprint for its democracy, providing substantial rights for Serbs and other minorities – and deserves to be fully independent, but there should be no slippage, and remaining parts of the plan should be honoured. The Pristina government mostly abides by it, and many Serbs south of the Ibar River now accept its authority, obey its laws and take part in political life in a way unimaginable four years ago. These achievements are threatened, however, by the tense Kosovo-Serbia relationship, declining Serb numbers and Pristina’s frustration at its inability to extend its sovereignty to the Serb-majority northern areas and to achieve full international recognition. A surge in ethnically-motivated attacks shows peace is fragile. The government should remain committed to the Ahtisaari requirement for minorities. But the plan was not meant to work in isolation and cannot be separated from the overall Kosovo-Serbia relationship. Belgrade needs to earn Pristina’s trust and acquiescence for its continued involvement on Kosovo territory, especially the south.

The early years of Kosovo’s independence were supervised by an International Civilian Office (ICO) created by the Ahtisaari plan. On 10 September 2012, the ICO and international “supervision” end, leaving the Pristina government with full responsibility for the young country. This is a crucial time for Kosovo’s relations with its Serb population and Serbia; the Ahtisaari plan still provides the best model to guarantee peaceful co-existence.

Many Serbs in Kosovo cooperate with state institutions in order to protect their rights and interests, but those in the North remain intransigent. The government has written most of the Ahtisaari plan into its constitution and laws, with generous provisions for Kosovo Serbs, though implementation is sometimes unsatisfactory. It has devolved powers to municipalities, allowing not only Serbs but also the majority Albanians greater say in how they run local affairs. Nevertheless, many in Pristina are starting to question what they see as the preferential treatment given to Serbs. Communication is getting harder, as few young people speak the other’s language. After years with only a small number of inter-ethnic incidents, attacks on Serbs are becoming more frequent.

Serbia does not feel bound by the Ahtisaari plan and thus maintains a significant presence in Kosovo that increased after independence in 2008, when Belgrade was intent on showing that it retained some control over its co-nation­als. In northern Kosovo, Belgrade’s control over local administration is almost complete. In the south, it mainly pays many Serbs’ salaries and pensions and runs education and health systems without informing Pristina. The Kosovo government tolerates this but could attempt to close the Belgrade-based institutions in the south. Such a crackdown would probably cause many Serbs to leave quickly. When it agreed to the Ahtisaari plan, Kosovo accepted that Serbia would stay involved on its territory, though in a cooperative and transparent way. Belgrade has rejected this cooperation, however, and Kosovo is showing signs of impatience. If it will not accept the letter of the Ahtisaari plan, Belgrade needs to act in its spirit or risk losing what influence it still has in the south.

A decade ago, two thirds of Kosovo’s Serbs lived south of the Ibar, scattered among an overwhelmingly Albanian population, one third in the heavily Serb North. That north-south Serb balance has shifted toward parity, and the southern Serb population is rural, aging and politically passive. Its pool of educated, politically savvy individuals is tiny and out of proportion to the large role assigned the community in the Ahtisaari plan, especially as the Serbs in northern municipalities refuse to participate. They and other minorities depend wholly on privileges, including quotas; they do not have enough votes to win legislative seats in open competition. Their minority delegates in the Assembly seldom resist Albanian policy preferences. Serb delegates allowed the government to gut the Ahtisaari promise of an “independent Serbian language television channel”, for example, replacing it with a Serbian channel controlled by the state broadcaster.

The creation of six Serb-majority municipalities south of the Ibar has, nevertheless, largely succeeded; they have taken over most of the governing role from parallel structures financed by Serbia, even though education and health care remains under Belgrade’s control. The bigger municipalities like Gračanica and Štrpce have active assemblies, are implementing infrastructure development projects with foreign and Kosovo government funding and are taking on responsibilities in a wide range of areas. Other new municipalities are small, lack competent staff and struggle to raise the resources they need. But all municipalities in Kosovo are competing for limited public and private funds. Central authorities have a tendency to micromanage their spending and deprive them of means to raise money. Few municipal governments, Serb and Albanian alike, have the trained staff needed to exercise their devolved powers effectively, and they seldom cooperate with each other even in areas of mutual interest.

Pristina and its international partners have failed almost completely to overcome still strong resistance to the return of refugees and internally displaced persons (IDPs). Many of these are content to sell their property and resettle elsewhere, but stymied by corruption, intimidation and courts without Serbian language facilities cannot achieve even that modest goal. Even the Serbian Orthodox Church struggles to realise the property rights it has under the Ahtisaari plan. Serbs living in enclaves within Albanian-majority municipalities are increasingly vulnerable and in need of protection. Some villages in Serb-majority municipalities are also exposed to attacks from larger neighbouring Albanian settlements, usually motivated by conflict over land. Their security is Pristina’s responsibility, and the government must take effective measures to protect vulnerable minorities and their return.

The greatest obstacle facing the Serb community, and the serious threat to the Ahtisaari plan, may be the sheer difficulty of making a safe and sustainable living in minority areas. Mistrust, lack of proper registration and outright hostility all make it hard for minority-owned businesses to market goods and services to the majority. As there is little to do beyond farming in most Serb-majority municipalities, many Serbs depend on salaries from Belgrade. If these end, many educated Serbs will be tempted to leave. Education is another sensitive area, and parents who do not trust the local schools will not stay. The Serbian schools and hospitals should be allowed to continue, but Belgrade and Pristina need to negotiate a mechanism for their registration and oversight.

Pristina and Belgrade have an interest to cooperate and avoid an exodus of Kosovo’s Serbs that would leave Kosovo with a multi-ethnic constitution ill-matched to a mono-ethnic reality, creating fresh tensions for the region and undermining its image among its international supporters. Serbia could ill afford another wave of migrants in a difficult economic environment. Pristina faces a hard struggle extending its authority north of the Ibar and must show that Serbs can have a good life in independent Kosovo if it is to do so. If Pristina and Belgrade wish, as they should – even out of different motivations – that Kosovo be genuinely multi-ethnic, they must cooperate in support of its Serb community.

Pristina/Istanbul/Brussels, 10 September 2012

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.