FORUM FOR INTERNATIONAL NEGOTIATIONS - NINETH SIMULATION

Tuesday, 10 June 2008

Museum für Völkerkunde - Seminarraum DG39

A-1010  WIEN, Neue Hofburg

"Towards the Final Status of Kosovo"

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I. Scenario

Notes

Some parts of this scenario are hypothetical but however resemble the actual situation and possible worst-case incidents.

Present situation

After Kosovo’s unilateral declaration of Independence the Serbian coalition government collapsed due to internal disputes on its policy stand towards this declaration and the European Union which acts as a strong supporter of the independence. Although the parliament re-election resulted in a gain in votes for pro-western parties, the building of a new coalition remains more than difficult. Nationalist parties in Serbia use that political turmoil to further polarize the Serbian society and especially call on the inhabitants of the Serbian populated northern part of Kosovo to revolt and boycott UNMIK and Kosovo’s Provisional Government rule. Especially in the town of Mitrovica, de-facto separated into an Albanian and Serbian part, ethnical tension increased and riots broke out, triggered and fuelled by protestors, rumoured to be sponsored and supported by Serbian secret service. Violent clashes leave around 16 people including international police and KFOR personal dead and more than 100 wounded. Since then only increased KFOR military presences and the imposition of temporary curfews guarantees a situation of relative security. Obviously the security situation on the ground can be ascribed to the unclear situation concerning Kosovo’s status question and the political strategy of neighbouring and other countries of how to deal with the situation.

Representatives of involved countries therefore decide to meet for an urgent regional security conference to discuss all questions of relevance and hope for a widely accepted agreement on the status of Kosovo in light of the current explosiveness of the situation in Kosovo which could accentuate the need to overcome the past stalemate on a common understanding on the crisis and a future proceeding

Background: Kosovo

On February 17, 2008 Kosovo’s Parliament declared independence from Serbia. Several countries formally recognized this new European state – first of all USA and states such as Turkey and Germany. There are however also European countries which deny a formal recognition of Kosovo as a state, mainly due to their own domestic situation, such as Spain. Although the number of supporting states rose to 42 by now, Kosovo still lacks formal UN recognition, which also seems to be improbably to come not only due Russia’s notion to make use of its veto in the UN Security Council.

Serbia along with other states such as Russia sees the proclamation of independence as a illegal act by an illegitimate government of Kosovo and the break-up as a breach of international law and the UN Charta. The country therefore aims at bringing this case in front of the UN International Court of Justice. Although most Serbian politicians do not want to publicly accept a loss of Kosovo, differences in pragmatism exist and especially emerge in their stands towards the relationship with the European Union, splitting Serbia’s political landscape in rather pro-European and nationalist fractions. On April 29, pro European political forces including Serbian President Boris Tadic signed a Stabilization and Association Agreement with the EU in Luxemburg, which however only comes into effect if Serbia fully cooperates with the ICTY. Besides, the EU eased immigration policy and educational cooperation to Serbia – previous to the parliamentary elections. A move considered helpful to the outcome for the pro-European political forces which strengthened their position. Although the party coalition of president Tadic won the overall best result of 38.8 % of votes, it failed to receive the relevant majority together with aligned parties to form government.

Since 1999 Kosovo is administered by the UN on ground of UNSC Resolution 1244 (1999) which gives a mandate for a civil administration of Kosovo to UNMIK (United Nations Interim Administrative Mission in Kosovo), headed by German diplomat Joachim Rücker. This resolution stays in force till its alteration or abandonment by the UNSC. UNMIK consists of 4 pillars, a police and judiciary services pillar managed by the UN, a self-administrative pillar by the UN, a democratization and institution rebuilt pillar run by the OSCE and a reconstruction and economic development pillar managed by the EU. A wide array of relevant political competences is left with the function head of UNMIK.

Resolution 1244 also serves as the legal grounding for KFOR (Kosovo Force) which is a multinational force under NATO command with its headquarters in Pristina and meant to guarantee for security in Kosovo.

Currently in starting position stands the EULEX mission, which aims at taking over responsibility from the UNMIK as the head of a civil administration to stabilize Kosovo and includes the deployment of around 1800 police and legal staff from EU member states to assist the institutional built-up of Kosovo, especially in the field of rule of law. Besides that the mission includes some executive tasks such as the prosecution of organized crime, war crimes, corruption, inter-ethnic crime and the maintenance of public order. EULEX comprises the biggest civil mission of the European Security and Defence Policy (ESDP). A planning team is already working on a smooth transfer from UNMIK to EULEX.

In its recent council conclusion on Kosovo, the foreign ministers of the EU decided to leave it up to every single member state whether, how and when to accept Kosovo as an independent state. Their common view is that “Kosovo constitutes a sui generic case, which does not call into question” the principles of sovereignity and territorial integrity, the UN Charter, the Helsinki Final Act and all UN SC resolutions.

Originally, the date of (from international law perspective controversial) transfer from UN to EU mandate and herewith the start of EULEX was scheduled on June 15 - the day of entry into force of Kosovo’s new constitution. With that date, also the exact balance of sharing of competences between Kosovo’s and international institutions, mainly EULEX was meant to be organized and fixed. By now it is however expected that the resolution of the matter will not be settled in time. Already in the past more and more functions were however transferred from UNMIK to PISG, the provisional institutions of self-governing of Kosovo, including Kosovo’s parliament which grants a fixed number of seats to the Serbian and other minorities, leaving aside the fact that around 99% of the Serb Kosovo population did boycott parliamentary election.

Past attempts to solve the status question

From 1999 to 2005 official international policy towards Kosovo was under subsumed under the principle “standards before status”, the question of Kosovo’s status was untouched, focusing instead on indicators on democracy, rule of law and economic development. In October 2005, due to a report by UN special envoy Eide, stating that current problems in Kosovo were to a large extent linked to the ambiguous status question, the UNSC gave green light for a start on talks on the future status of Kosovo in the framework of the so called Balkan Contact Group, made up of Germany, France, UK, Italy, Russia and the US. A first consent by this group made clear that every possible solution of the status must adhere to certain principles such the furthering of regional security and stability (therewith excluding the options of going back to a pre-1999 state, also excluding a division or annexation / unification with a third country) and the protection of minorities.

Since 2006, UN special envoy Martti Ahtisaari started direct talks including Belgrade and Pristina to come to a commonly accepted solution of the status of Kosovo. Several rounds of talks did not produce a solution and in consequence Ahtisaari handed over his report of recommendations and possible solutions, inscribed in his plan of a “supervised independence” of Kosovo to the UNSG who recommended it for approval to the UNSC. In the UNSC however, no solution could be found.

Another attempt to solve the status question through negotiations by a Troika consisting of EU, Russia and the US which underwent talks with Pristina and Belgrade ended without a solution on November 2007. The self-proclaimed independence of Kosovo was the answer to this absence of an internationally found solution.

Kosovo’s Critical Problems

Besides the question of a contested legal status – according to international law – of Kosovo as a state, some further problems aggravate the current situation. First of all the ethnic dimension and de-facto division of Kosovo. Although Kosovo not only comprises Serbs and Albanians but a whole variety of other ethnicities, which are especially recently facing a worsening of their situation and increased vulnerability in regard to their human rights, the first two groups depict the main conflict line in the Kosovo question. In terms of their mandate, UNMIK is responsible for safe conditions of return of displaced Serbs in Kosovo. Progress in this field however shockingly lags behind and ethnic tension is on a high, leaving to the fact that Kosovo is mostly divided in a mainly Albanian Kosovars populated centre and a Serbian Kosovars populated north including some territories in the south. Especially in the Serbian Kosovars in the north – supported by the Serbian Government – do not accept Kosovo’s new central institutions and Pristina’s authority in these parts of Kosovo is therefore virtually non-existent. Belgrade’s sway over communities with ethnic-Serbian majorities in Kosovo’s north means that even after independence, ethnic-Albanian leaders will lack true control over all of their territory. Serbia has opened a government office in Mitrovica in northern Kosovo to oversee public services. Kosovo Serbs are planning to establish their own “assembly” in the northern Mitrovica region. Also in the North of Kosovo, some 200 Serb members of the Kosovo police have resigned, refusing to take orders from the majority ethnic Albanians rather than the UN. Additionally the Serbian railway retook control of a 30-mile train line in northern Kosovo. Even EU special envoy for Kosovo, diplomat Pieter Feith had to admit, that some moves in that direction are coming very close to a bid for Serb-Albanian partition, a bid which was ruled out in the Contact Group – including an accession with third other states, mainly Albania. Also the EU Mission is facing heavy problems in the north of Kosovo, the EU planning team, working on the transfer of UN to EU lead had to be pulled out from Serb dominated north amid violence. UNMIK also decided to partly re-deploy Albanian police and custom personal from the north of Kosovo.

Another problem is the economic situation of Kosovo. Some commentators assume that Kosovo will have a hardship on autonomously securing its economic survival and that especially the hostility Kosovo is facing in its own backyard means it will be overwhelmingly dependent on outside assistance and protection. Here, also the unresolved status and crucial security situation are decisive obstacles for foreign investment or sustainable economic development. A significant portion of the fast growing population in Kosovo already lives in poverty, a fact which does not facilitate a general political solution of the whole crisis. Both Kosovo and Serbia have ignored economic realities so far, focusing instead on achieving independence or preventing it.

Other problems exit. Criticism by human rights organizations such as Human Rights Watch or Amnesty International e.g. bring on the agenda problems of slow pace of prosecution of war criminals and allegations of double standards concerning Serbian or Albanian victims or perpetrator in the work of UNMIK. Also investigations of cases of enforced disappearances are hardly moving forward, further complicating the process of building trust between different ethnicities and clans in a social field already characterized by mistrust and antagonism and distrust in state institutions. Much of the newly filled Kosovo institution’s structures are said to be pertained by corruption. Also the yet-to-be-done disclosure of government and administrative personals role in the past war activities makes it difficult to create trust beyond Albanian Kosovars or people directly profiting from the new government.

II. Description of the position of participating parties

UN Secretary General

He presides over the conference.

He calls upon all parties to cooperate with his Special Representatives by facilitating the fulfillment of the latter’s mission and respecting his mandated authority, especially in the function of Minister for Foreign Affairs and Defense. Concerning the Status of Kosovo, the UN continues to consider resolution 1244 (1999) as the legal framework for its mandate and continue to implement its mandate, and calls upon all parties to do likewise. The resolution states that Kosovo is an integral part Serbia.

The ultimate aim of the UNSG is to ensure that any decision made on the final status of Kosovo would not destabilize the political and security situation, that the population of Kosovo shall agree with the process and the result, and that the rights of minority are sufficiently and adequately protected. In this regard, the partition of Kosovo and the union of Kosovo with any other country are not conducive to stability in the region, and he urges all parties to act with responsibility for the region.

UNMIK

Its actions are bound to the resolution 1244, has not yet expressed any formal or informal recognition on the UDI of Kosovo, and opposes any steps incompatible with the provisions in that resolution. The UNMIK regards Kosovo as an indivisible territory under UN administration. The main task of the UNMIK outlined in the resolution is to work civil administrator in cooperation with the people of Kosovo particularly in the area of police, justice and human rights, democratization and institution building, reconstruction and economic development.

Given the complication following the UDI, the UNMIK is likely to remain in Kosovo and doubts the handover of its competence to the EULEX, especially because the EULEX might lack a mandate.

As the representative of the UNMIK, the negotiator should understand the role of the mission defined in the resolution 1244, the role of the Special Representative of the UN Secretary General in order to be able to judge the proposal made by other parties. In doing so, he or she shall take into account the opinion of both Serbian minority and the Kosovo Government. He or she, however, has no role in the determination of the final status of Kosovo.

KFOR

After the UDI, KFOR reaffirms its obligation under the resolution 1244, and continue to carry out the tasks provided for in the Ahtisaari Plan in accordance with the resolution. The main task of the KFOR is to establish and maintain security in Kosovo, that includes the facilitation for UNMIK to carry out the mission, the demilitarization of Kosovo and the guarding of public order. In response to the pop-up crisis foreseen in the scenario, the representative of the KFOR should also be able to present the conference with operation plan compatible with its missions, bearing in mind that although the KFOR itself does not have rights to determine the final status of Kosovo, it activities have implication on the further proceedings in the matter.

Serbia

Serbia considers the UDI a unilateral act that denounces all the principles of international justice, sovereignty and territorial integrity of states. Serbia continuously calls upon international community to annul the UDI, which, it believes, does endanger peace and security in the region. Serbia strongly adheres itself to the UN secretary Council resolution 1244, the Helsinki Final Act and the UN Charter, which all guarantee the territorial integrity and sovereignty of Serbia and confirm Kosovo as integral part of the country. Serbia does not accept the Ahtisaari Plan, and doubts the role of KFOR as whether the latter has act beyond its given mandate and it obligation under the Military-Technical Agreement with Serbia.

Any decision with regards to the final status cannot be valid without the participation of the Serbs in Kosovo. And the process towards the final status is exclusively the matter of Serbia. The international community should help finding solution in this process and not complicate the situation, taking into account the fact that more than quarter million ethnic Serbs have fled the country after the war, and that those people, too, has rights to enjoy fundamental human and humanitarian rights. For Serbia, the recognition of Kosovo’s independence legalizes the expulsion of the Serbians from Kosovo. Serbia also questions the protection of the minority rights of the Serbs in Kosovo.

Russian Federation

The Russian Federation aligns itself with the position of Serbia in most of the points, especially with regards to the illegality of the UDI, the opposition to the Ahtisaari Plan and EULEX and the upholding of fundamental principle of international law. For Russia, the issue is to be dealt with only by Belgrade and Pristina and any decision should be made in consent of the Serbian minority in Kosovo. Together with China and India, and supported by Brazil, Russia has called for an official negotiation on the final status of Kosovo to be resumed. Russia also reiterates that the partition of Kosovo is not possible, but given the de-facto absence of Serbian authority in Kosovo, a de-facto and de-jure partition of Kosovo and the reattachment of the Serbian populated territories would be the most acceptable result while putting the responsibility for the partition to the west. This solution would also serve as model for the separation of Russian populated territories from many former Soviet republics. Furthermore, a gross violation of the Security Council resolutions might enable Russia to consider UNSC resolutions as optional rather than strictly binding, especially in the issue of Iranian nuclear conflict.

Nevertheless, Serbian government being a pro-European one, Russia is also afraid that having the conflict solved would free Serbia from necessary Russian political support, thus leading to a diminution of the influence of the NATO-encircled Russia. Kosovo and Serbia are of significant strategic and geo-political importance for Russia.

EU High Representative of the CFSP

Despite the fact that not all European countries officially have officially recognized the UDI of Kosovo, the European Union represented by the High Representative has a clear stance on the future development of Kosovo. It has decided to send a potential police and justice mission (EULEX) to Kosovo to assume the tasks to be transferred from UNMIK. The EU believes to pursue its policy under the obligation under the resolution 1244 and as set out in the Ahtisaari Plan, which aims at a democratic, independent, unified and multi-ethnic Kosovo in which the minorities are protected, An independent Kosovo constitutes an integral part of the stabilization and the long-term ascension to the EU of all West-Balkan countries, including Serbia.

The EU regards the emergence of an independent Kosovo as unique sui generis circumstances, which creates no precedent. It also believes that the emergence is an inevitable consequence of the resolution 1244, which is taken as depriving Serbia of the rights to exercise its authority in Kosovo. The current and future actions of the EU are and will be guided by the understanding that the UNMIK and the KFOR missions have been being adapted to new circumstances. The EU, as being an integral part of these missions, is therefore committed to the future of Kosovo from the beginning and is legally permitted to adapt its policy in accordance with the resolution. The EU is committed also to determine Kosovo’s future status and invites the Kosovo Serbs to work with the government in Pristina. International presence is according to the EU very necessary.

United States

The US regards the independence of Kosovo as a result of a long and unique process justified by the initial Serbia human rights violation prior to the war in 1999. The administration and political and economic system of Kosovo have been cut off from any Serbian involvement since the resolution 1244, and the UDI has become the only logical consequence. The United States calls upon the international community to recognize Kosovo’s independence, as this would be the only possibility to secure peace and stability in the region, and to work together to implement the Ahtisaari Plan to create a democratic and unified Kosovo. The US also supports the EULEX. In spite of a steadfast stance on the issue and its rejection to the proposal of the BRIC to negotiate the final status of Kosovo, the US action is constrained by other key foreign policy priorities, such as in the Middle East or in Iranian atomic issue. In both issues, the US may need the support of the Russian Federation, which feels that it has the rights to be selective with the mandates prescribed in Security Council Resolutions.

While welcoming the integration of the West-Balkan countries into the EU and eventually NATO, the United States is also interested in a long-term good relationship with Serbia. It also wishes to maintain its military presence on the Balkan both for geo-strategic reasons, as well as to guard several trans-Balkan oil pipelines.

Kosovo Serbs

Although there is a small fraction of Kosovo Serbs who accepts cooperation and authority by Kosovo’s new institutions, the bigger share does not and considers Kosovo’s attempt to split up from Serbia as an illegal act. Irrespective of past atrocities, the Serb minority in Kosovo today still faces regular violent assaults by Kosovo Albanians and feels unfair treated by the current political process which inofficially builds on the Athassari plan. Currently parts of the Serb minority however faces a double problem. On the one side, they are not integrated in the new institutions, on the other side, they are only half-heartedly supported by the Serbian Government which called on them to boycott Kosovo’s parliamentary elections and political process. According to recent surveys the Serb minorities major concern is security, with unemployment only ranging on the third place.

Kosovo Albanians

Kosovo Albanians see themselves in the triumphant situation of after years of foreign rule and oppression they finally got their own state. Their loyalty goes with the US as the main force behind NATO bombardment which drove Serbian forces under command of Milosevic out of Kosovo and halted his policy of ethnic cleansing and displacement. Most Kosovo Albanians see their future in the European Union, while already used to the Euro as their standard currency and a huge amount of Kosovo Albanians now returning back from Western and Central European countries where they fled to during the war in Kosovo, such as Austria or Switzerland. Most of them are optimistic about the status question but do have to cope with economic problems such as unemployment. Also crime and corruption rate is high, further hindering sustainable economic development.