Perspectives | Dialogue

‘Carrots’ and ‘Sticks’ for a Deal with Serbia

By - 27.12.2018

The relationship between Kosovo Army, Specialist Chambers and the Prime Minister’s draft agreement with Serbia.

Kosovo’s Army

On December 14, 2018, Kosovo’s Parliament passed legislation that enables the transformation of the Kosovo Security Force (KSF) into a regular army. The KSF’s mandate, which was limited to crisis response, civil protection and ordinance disposal, will now also include a military mandate.

NATO and some NATO member states are against such a move without prior constitutional amendments and the buy-in of all Kosovo communities, especially the Serbs. NATO Secretary-General, Jens Stoltenberg immediately reacted by stating that the plans are “ill-timed”, that they go against the advice of many NATO Allies, and that they may have serious repercussions for Kosovo’s future Euro-Atlantic integration.

Despite NATO’s harsh reaction, the U.S. supports the transformation. According to U.S. Ambassador Philip Kosnett, it would be “only natural for Kosovo as a sovereign and independent country to have its own defense capability.”

However, the U.S. made clear that the passing of the laws on the Kosovo army would not imply an “immediate change to the structure, mission, or operations of the force.” It would rather “represent the beginning of the practical, ongoing work of building a transparent, multi-ethnic, NATO-interoperable force that serves all of Kosovo’s communities, in accordance with the Government of Kosovo’s 10-year transition plan.”

The U.S. also urged Kosovo to coordinate with NATO and maintain existing arrangements with KFOR on the movement of forces and operations in Kosovo. What does this mean?

First, while Kosovo has passed legislation that will enable the KSF to have a military mandate, it will take at least a decade for that transformation to be implemented. While Kosovo was rightly celebrating the ‘creation’ of an army, it will still be a long way until the KSF is indeed an army.

Second, by saying that Kosovo has a sovereign right to have an army, the U.S. Ambassador just stated the obvious. As an independent state Kosovo, like any other state, has the right to defend itself and for that purpose to have its own army. If Kosovo’s declaration of independence was not in violation of international law, including UN resolution 1244 (1999) as confirmed by the International Court of Justice, how could then the creation of a Kosovo army be in violation of international law?

But the question about Kosovo having an army was never really about the ‘if’, it was about the ‘how’.

The U.S. support for the gradual transformation was important for Kosovo to assert its sovereign right, namely to have an army, and to change the narrative as expressed by NATO’s Secretary-General. Despite the green light to start with the transformation, the process will remain crucial. Kosovo would be foolish to implement the transformation process without the support of the U.S., which is NATO’s largest contributor and the real security provider.

The facts on the ground have not changed. There has been no fundamental shift in balance of power that could threaten the stability of the region.

 

Third, Serbia’s reaction, and that of some other countries that the passing of the legislation on the army would be a threat to peace and security in the region, is absurd. As said, it will take KSF at least the next 10 years to complete the transformation into an army. Apart from that, an army with a manpower of 5,000 active serviceperson and 3,000 reservists, and with a total Kosovo budget of around 2 billion euros, is hardly an offensive force that has the capacity to be a threat to peace and security in the region.

Fourth, NATO and KFOR will continue to be present in Kosovo and implement their mandate based on UN Resolution 1244 (1999). Their mandate might be adjusted, the same way as UNMIK adjusted its mandate following Kosovo’s declaration of independence, but they will still be present.

So, the passing of the legislation was a necessary political act that asserted Kosovo’s sovereign right to have an army, but the facts on the ground have not changed. There has been no fundamental shift in balance of power that could threaten the stability of the region, and the transformation process will still be controlled by those NATO countries that support the transformation process.

The Specialist Chambers

At the same time that Kosovo initiated the transformation of the KSF into an army, another development rocked Kosovo’s political landscape: the Specialist Chambers started summoning former Kosovo Liberation Army (KLA) commanders and members. The Specialist Chambers and the Specialist Prosecutor’s Office, which were established in 2015 and were functional as of June 2017, were silent so far.

The Specialist Chambers and the Specialist Prosecutor’s Office were established to address allegations of certain crimes, which were referred to in a Council of Europe report as “inhuman treatment of people and illicit trafficking in human organs in Kosovo” (hereafter referred to as the Report).

The Report contains allegations that during the war in Kosovo between 1997 and 1999 members of the KLA held Serbs and Albanians as prisoners in secret prisons in Northern Albania, that these prisoners were subjected to inhumane and degrading treatment, and that some of them had disappeared. There are also allegations that in some cases, at a clinic on the territory of Albania, organs were removed from prisoners and taken abroad for transplantation.

If the evidence for filing indictments was already available in 2014, why did it take the Specialist Prosecutor so long to issue the first summons in December 2018?

 

Although established under Kosovo law, the Specialist Chambers and the Specialist Prosecutor’s Office are a Kosovo institution only by name and legal form. All judges, prosecutors and other personnel are foreigners who are appointed by the European Union Mission in Kosovo (EULEX). The court and the prosecution operate in The Hague and are funded by the European Union (EU). The Specialist Prosecutor is nominated by the U.S. The Specialist Chambers and the Specialist Prosecutor’s Office have their own police and detention officers, separate arrangements with other states and organizations on judicial cooperation, and they are not accountable to the democratically elected Kosovo institutions.

The Report mentions the incumbent President of Kosovo and other high-ranking officials currently serving in Kosovo’s government institutions as being implicated in the alleged crimes. The establishment of the so-called Special Court was resisted by Kosovo’s political elite, and its establishment succeeded only after enormous political pressure and threats with sanctions by the U.S. and the EU.

The Chief Prosecutor of the Special Investigative Task Force (SITF), the predecessor of the Specialist Prosecutor, stated already in 2014 that as a “result of this investigation, we believe that the Task Force will be in a position to file an indictment against certain senior officials of the former KLA. These individuals bear responsibility for a campaign of persecution that was directed at the ethnic Serb, Roma and other minority populations of Kosovo and towards fellow Kosovo Albanians who they labelled either as collaborators with the Serbs or, more commonly, as having simply been political opponents of the KLA leadership.”

If the evidence for filing indictments was already available in 2014, why did it take the Specialist Prosecutor so long to issue the first summons in December 2018? And it is not even indictments. Why the KLA commanders who are mentioned explicitly in the Report were not summoned but rather some other individuals whose names do not appear in the Report? Would it not make sense to first of all summon those who are directly mentioned as suspects in the Report, and then extend the investigation to other individuals?

This might rise speculations that those who are mentioned explicitly in the Report are needed for another process; therefore, summoning them might turn them to spoilers, who might have the power to delay or even derail that process.

The Draft Comprehensive Agreement with Serbia

The other process, and perhaps the politically more important one, is the dialogue with Serbia. On December 13, 2018, the Prime Minister of Kosovo, Ramush Haradinaj, unexpectedly presented to the ‘Quint’ countries US, UK, Germany, France and Italy a draft Comprehensive Agreement between the Republic of Kosovo and the Republic of Serbia.

The draft provides for explicit recognition of Kosovo by Serbia as a “sovereign and lawfully constituted state.” In return, Kosovo acknowledges Serbia’s role to “advocate for the rights of the Serb community living in Kosovo.” The Serb community in Kosovo is guaranteed community rights as already reflected in the Kosovo Constitution and the Comprehensive Proposal for a Kosovo Status Settlement, theAhtissari Plan.’ The draft endorses the Association of Serb-Majority Municipalities, it incorporates the agreements concluded between Kosovo and Serbia as part of the Brussels technical and political dialogue, and it provides for dispute settlement before the Permanent Court of Arbitration.

The draft provides for a Joint Monitoring Commission composed of representatives of ‘guarantors’ of the agreement, which are the U.S., UK, Germany, France, Italy and the EU. The guarantors will monitor and report on the implementation of the agreement and have presences in Kosovo and Serbia. Advancement in the EU integration process is conditioned upon successful reports of the guarantors.

However, the draft agreement has significant weaknesses that can prove dangerous for Kosovo.

First, the draft does not explicitly determine Kosovo’s borders with Serbia and allows for territorial swaps disguised as a necessary subsequent border demarcation. Second, most of the obligations are incumbent on Kosovo, which gives Serbia politically and legally the upper hand.

The up-front concessions made to Serbia create the perception that Kosovo is apologizing for having declared independence.

Third, the draft neither provides for the repeal of UN Resolution 1244 (1999), which still considers Kosovo to be part of the Federal Republic of Yugoslavia, now Serbia, nor for Kosovo’s membership in the UN as a prerequisite for the entry into force of the agreement. Russia and China could still block Kosovo’s membership in the UN, even if Kosovo reaches an agreement with Serbia. The EU non-recognizers could also still claim that Kosovo is not a state as long it is not a member of the UN, and block Kosovo’s integration into the EU.

Fourth, as most of the obligations are incumbent on Kosovo, it means that the Joint Monitoring Commission will supervise primarily Kosovo and to a much lesser extent Serbia. It means that, as a matter of fact, Kosovo will be put, again, under international supervision an arrangement that Kosovo was thought to be over in 2012 when the International Steering Committee, which supervised the implementation of the Ahtisaari Plan, completed its mandate.

Fifth, Serbia, through its agents like Lista Srpska political party in Kosovo, will continue to indirectly influence Kosovo through arrangements under Kosovo’s constitution that give communities veto powers concerning vital legislation, through the Association of Serb-Majority Municipalities, and directly through legal action against Kosovo before the Permanent Court of Arbitration.

The up-front concessions made to Serbia create the perception that Kosovo is apologizing for having declared independence and for being the victim of the decade-long systematic human rights violations by Serbia, followed by war crimes and ethnic cleansing.

For an agreement between Kosovo and Serbia to work out, certainly both sides have to make concessions. But why would Kosovo propose such terms, which dilute Kosovo’s sovereignty, in an initial draft?

It is true that a peace agreement must balance the interests of Kosovo and Serbia and much of what is included in the Prime Minister’s draft agreement points in the right direction. Still, there must be guarantees that Kosovo will get what it wants if it makes such concessions to Serbia.

For that to happen, Kosovo needs, first of all, to clearly define its national interest and have a negotiation strategy, which is not in sight because of the divisions between Kosovo Albanian political parties. It is dangerous to present a draft agreement without having defined negotiation objectives and a strategy in advance, and without having considered all political and legal consequences of a draft agreement.

Serbia might now hold Kosovo’s own draft against it and insist in keeping concessions already made and demand additional ones. Kosovo might be in the awkward position to have to ask for amendments to its own draft after realizing that some of its provisions, and some omissions, will harm Kosovo.

The U.S. green light for the army now appears as a ‘carrot’ — that is, to give Kosovars the much needed feeling of finally being a real state but also to be ready to make painful concessions to Serbia.

U.S. President Trump’s letter of December 18, 2018 to President Thaçi, just a few days after the Prime Minister presented the draft agreement to the Quint, underlines the need for an agreement that balances the interests of both Kosovo and Serbia and that such an agreement would be within reach. The last part of the sentence, namely that such an agreement is within reach, indicates that the draft reflects what the U.S. believes to be a balancing of interests of both Kosovo and Serbia, taking into account that the draft agreement was prepared with the assistance of U.S. consultants and given to the Prime Minister before he delivered it to the Quint.

The U.S., which wants to settle the problem between Kosovo and Serbia, cannot be blamed for shortcomings in the draft given that the Kosovar leadership is unable to define Kosovo’s strategic interests and objectives, and have a common position.

Connecting the dots

Is it just a coincidence that all these developments are happening at the same time? The U.S. giving the green light for transforming the KSF into an army; the Specialist Prosecutor beginning to summon some KLA members not referred to in the Report; the Prime Minister suddenly presenting a draft agreement that already makes extensive concessions to Serbia; and U.S. President Trump’s letter that an agreement that balances the interests of both Kosovo and Serbia is in reach.

It is evident that the U.S. is driving and controlling these processes and that EU member states are completely sidelined. If Kosovo and Serbia reach an agreement, it will be a U.S. diplomatic success and not a European one. This is not a surprise given the EU’s failure to properly manage the dialogue between Kosovo and Serbia so far. In fact, the EU’s failure made U.S. engagement necessary, which wants to make sure that this part of the Western Balkans is finally pacified.

It also shows that it is the U.S. that has the real leverage over Kosovo, perhaps even over Serbia, and not the EU. The U.S. green light for the army now appears as a ‘carrot’ — that is, to give Kosovars the much needed feeling of finally being a real state but also to be ready to make painful concessions to Serbia, as reflected in the Prime Minister’s draft.

There is also the perception that the Specialist Prosecutor is sending the first signs that the time of impunity is over without really hitting the true suspects. This may motivate Kosovo’s political leadership, almost entirely in the hands of former KLA commanders, to play by the script.

Some former KLA commanders, now political leaders, might hope that playing by the script they might induce the Specialist Prosecutor to a lenient exercise of prosecutorial discretion, especially since the Specialist Prosecutor is not really accountable to anyone. It may be this combination of ‘carrots’ and ‘sticks’ that explains why Kosovo’s leadership is willing to proceed with a draft agreement, which surprises with its generosity in terms of up-front concessions to Serbia.

If everything goes well, Kosovo and Serbia will fairly soon have an agreement, and Kosovo might even be able to join the UN and perhaps get visa liberalization as a reward by the EU.

But what if, after this agreement is signed, things go wrong? What if, after signing this agreement, Kosovo does not get into the UN and Resolution 1244 (1999) will not be repealed? What if this agreement accelerates Serbia’s membership into the EU, but the EU non-recognizers continue not to recognize Kosovo and block its integration into the EU?

What if the Specialist Prosecutor is not lenient in the exercise of his prosecutorial discretion and summons also those named in the Report? Will Kosovo’s current political leadership feel betrayed if they are summoned and Kosovo does not get what it expects? Will they go voluntarily? What will be the consequences for political stability in Kosovo?

Things can go wrong, as they went wrong when Kosovo declared independence in 2008. The Ahtisaari Plan failed to get approval in the Security Council, and despite the support of the U.S. and other countries Kosovo failed to get recognitions and membership in international organizations as expected. Kosovo was also promised visa liberalization if it ratified the border agreement with Montenegro and improved its track record in fighting corruption and organized crime. 

Failure is therefore a realistic scenario, but the difference is that this time failure will be very painful for Kosovo.K

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  • 27 Dec 2018 - 17:57 Robert: Serbia is neither identical nor the successor of the Socialist Federal Republic of Yugoslavia (SFRY). No doubt about that. But Serbia is identical with the Federal Republic of Yugoslavia (FRY) which emerged from the dismemberment of the SFRY and which later was renamed to Union of Serbia and Montenegro. When Montenegro separated from this Union, Montenegro accepted that it was a secession and that Serbia continues with rights and obligations of the FRY. This is confirmed by the International Court of Justice. Resolution 1244 refers to the FRY and not to the SFRY and that is the reason why Serbia continues under this resolution.
  • 27 Dec 2018 - 12:59 Anonymous: Author failed to recognize that Serbia didn't inherit the legal responsibilities of the Yugoslav Republic, hence, Republic of Kosovo doesn't need to address the article in Resolution 1244 - stating that Kosovo is part of the Yugoslav Republic. Just to remind the author, Serbia and Montenegro have formed Federal Republic of Yugoslavia and for the first several years of its existence, the state aspired to be recognized as the sole legal successor to Yugoslavia, but those claims were opposed by other former constituent republics. Additionally, the United Nations also denied its request to take up Yugoslavia's membership. The claim that Serbia inherited the role of Yugoslavia (in legal terms) is completely wrong. Otherwise, well written.
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