By Gerard M. Gallucci
The current stalemate in northern Kosovo remains the main stumbling block preventing the commencement of a genuine process of mutual accommodation between Serbia and Kosovo. The two may continue to differ on the fundamental issue of Kosovo’s status – with Serbia withholding recognition of Kosovo’s independence – for some time.
Regularising relations on a practical level in order to lower tensions and improve the daily lives of people, however, is achievable even without agreement on status. For this to move forward in earnest, a political framework must be found to accommodate the essential interests of both sides vis-à-vis the area north of the Ibar River. The Ahtisaari Plan (Comprehensive Proposal for the Kosovo Status Settlement) remains the best approach to accomplishing this objective, and agreement on its implementation would avoid both the attempt to settle the “problem of the north” through the use of force and the full separation of the north from Kosovo.
1) Background to the Ahtisaari Plan
After the March 2004 violence in Kosovo, the international powers supervising implementation of UN Security Council Resolution 1244 – the Contact Group of Great Britain, France, Germany, Italy, Russia and the United States – began moving apart over the question of what to do next. The Western five countries – the Quint – came to the conclusion that waiting for Kosovo to fulfill “standards before status” would not work. Kosovo Albanians were clearly growing impatience with the delay in moving toward independence, the outcome they had come to expect from the NATO intervention. As the Quint saw it, the process had to move forward.
In November 2005, the Contact Group – in what was essentially its last gasp of consensus – announced guiding principles for resolving status. At the same time, the UN Secretary General asked former Finnish President, Martti Ahtisaari, to lead the process of arriving at a status agreement. Ahtisaari faced a daunting task because of differing positions on the question of Kosovo’s final status; positions that reflected the opposing views of Belgrade and Pristina. In joint sessions and other meetings, he focused on trying to draw out from the two sides elements of a possible compromise arrangement. He managed to derive from these talks the elements for what came to be known as the Ahtisaari Plan.
By 2007, however, it was clear that there would not be a new UN Security Council resolution on Kosovo. There were substantive issues between the Quint and Russia, with Moscow rejecting granting Kosovo independence as a precedent for other disputed regions. There were also factors in the bilateral relationship between Russia and the US that affected the dynamics. With Quint support guaranteed, Kosovo declared independence in February 2008. The Ahtisaari Plan served as a basis for this declaration and for a continuing international role; to be carried out by the International Civilian Office (ICO) of the European Union Special Representative and the EU Rule of Law Mission (EULEX). During the course of events, the Ahtisaari Plan was implemented in south Kosovo, including in several municipalities with non-Albanian majorities. The north, however, remained outside Kosovo institutions and the ICO, and the Ahtisaari Plan was not implemented there.
The Ahtisaari Plan derived a formula that would allow Kosovo Serbs to have their own local institutions and communal life with continued linkages to Serbia, but within the framework of a multi-ethnic Kosovo. The Plan called for new Serb-majority municipalities – including North Mitrovica – with important elements of self-rule in health, education and social issues, plus a role in choosing the local police chief. These municipalities would have the right to their own funding, block grants from central government and funding from Belgrade. They could form associations with other municipalities, including those in Serbia. The intent was clear – to allow Serbs in these municipalities to live in two worlds at once, in both Kosovo and Serbia. However, there were issues left to be defined by further agreement or in practice. Important details centered on exactly what role the central government would play in the linkages to Belgrade, and on setting policy in areas such as education.
The Ahtisaari Plan remains a good framework for resolving the conflict over the north and maintaining the territorial and political integrity of Kosovo while status remains disputed. It provides for minority rights and participation in government, local self-rule and linkages between local municipalities (with Serb majorities) and Belgrade. Together with the six-point plan of UN Secretary General, Ban Ki-moon, the Ahtisaari Plan offers a number of pragmatic measures relating to policing, customs, the courts and infrastructure, plus local autonomy in education and culture, and special features for Mitrovica (the University and Hospital). The Plan also provides mechanisms for ensuring transparency in Belgrade’s support to Serb municipalities in Kosovo and for connecting the northern Serbs and their local institutions with Pristina. The northern Serbs will need to look beyond simple rejection of the Ahtisaari Plan – as linked to Kosovo independence – and re-examine it closely to see how it may address their concerns. The Kosovo Albanians will have to consider how implementation of the Plan can be done in such a way as to allay Serb concerns, whilst still providing political unity within a decentralized context. In a transitional period, the international community – the UN and/or the EU – may need to play a supporting role so that both sides can feel assured of mutual adherence to the Plan. This paper will suggest a possible approach to implementing the Ahtisaari Plan that all parties might consider as a starting point for further discussion.
2) Assumptions and Conditions
It is assumed that all parties wish to resolve the issue of the north without further violence, and eschew all efforts to seek to impose political outcomes unilaterally through the use of force. It is also assumed that any workable approach to resolving the issue of north Kosovo, without violence and in a manner acceptable to both Kosovo Serbs and Kosovo Albanians, would have to meet certain conditions; namely that:
- 1. Questions regarding the overall political status of Kosovo remain separate from any practical arrangements made for regularizing life in the north and across the boundary lines between Serbia and Kosovo, and between the north and south of Kosovo;
- 2. North Kosovo remains part of Kosovo, and that Kosovo’s territorial and political integrity be maintained;
- 3. The Serb-majority population north of the Ibar River maintains their own local administrations in the existing four municipalities – including North Mitrovica – without unilateral influence from Kosovo institutions south of the Ibar River;
- 4. The local institutions north of the Ibar River continue to be allowed to function in practical ways as municipalities in Serbia;
- 5. Core rule of law institutions – the courts and the police – function in a manner consistent with both local self-rule and overall coherence within a Kosovo-wide framework;
- 6. Kosovo Serbs in the north accept the responsibilities of participating in the central institutions of Kosovo, and align their political practices as much as possible with those south of the Ibar River;
- 7. Issues not directly part of the Ahtisaari Plan – including customs and the operation of telecoms and energy companies in the north – would also have to be resolved in a manner consistent with the overall approach to the north and these other conditions;
- 8. An international role vis-a-vis the implementation of the Ahtisaari Plan in northern Kosovo may be necessary until it can stand on its own – i.e. in the hands of the two sides – i.e. or until an overall political solution is achieved.
3) Essentials of the Ahtisaari Plan
The Ahtisaari Plan commits Kosovo to maintaining multi-ethnic, non-religious democracy – with Albanian and Serbian as official languages – with an open market economy with free competition. It provides essential elements for minority and property rights, for a strong form of decentralized local government and for linkages between municipalities and with Belgrade. Article 3.2 requires the “protection of the national or ethnic, cultural, linguistic and religious identity of all Communities and their members.” Article 4 provides for the right of return and to reclaim property. Article 6 provides for local self-government and that municipalities “shall have the right to inter-municipal and cross-border cooperation on matters of mutual interest in the exercise of their responsibilities.” The Plan’s Annexes expand on these – Annex I (Article 8.3) gives municipalities the right to local sources of revenue and (8.4) to “inter-municipal and cross-border cooperation in the areas of their own and enhanced competencies.” Annex II (Article 4) provides communities the right to express, maintain and develop their language and culture; receive pre-school, primary and secondary public education in their own language; establish and maintain their own private schools (with public financing); display community symbols; and have their own media (including TV). Annex I (Article 1.6) provides for the ability to maintain dual citizenship.
Annex III defines local government, decentralization and linkages to Belgrade. Article 3 of the Annex gives municipalities full and exclusive powers for local economic development, land use, urban regulation, public services and utilities, education, health care and social services, public housing, licensing local services and naming of streets. Article 4 gives Serb-majority municipalities “enhanced participatory rights in the appointment of Police Station Commander” and provides North Mitrovica with “extended” competencies for university education and a hospital. Article 5 requires that the central government delegate to municipalities responsibility for cadastral and civil registries, voter registration, business registration and licensing, distribution of social assistance payments (excluding pensions) and forestry protection. Annex III also allows for municipalities to cooperate with (Art. 10) and receive funding from (Art. 11) Belgrade and to use educational material from Serbia in local schools (Art. 7). Annex IV provides that municipalities will have their own local courts and (Art. 2.2) mandates that “Kosovo judicial institutions shall … reflect the ethnic composition of their area of jurisdiction.”
At the national level, the Ahtisaari Plan provides for reserved and protected minority participation in the central government. Annex I provides quotas for “non-majority” participation in the national government. Article 3.3 requires a minimum of ten seats (out of 120) reserved for Kosovo Serbs in the National Assembly, as well as minimum numbers for other national minorities. Article 3.7-9 provides for protected participation and voting majorities in the Assembly for issues affecting the “non-majority” communities without reference to simple majority vote or referendum. Article 5 requires a minimum number of Serb and other non-majority community representatives as ministers and deputy ministers and mandates that the civil service “reflect the diversity of the people of Kosovo.” Annex I also gives the non-majority representatives an enhanced role in choosing members of the Constitutional Court (Article 6) and in the process of amending the constitution (Article 10).
4) The Ahtisaari Plan – Areas to be Further Defined for Implementation
The elements above provide for a special status for Serb communities in Kosovo. However, the Ahtisaari Plan placed these into a context where the role of the central government had been accepted by all parties. The central government it envisions is multi-ethnic in participation and functioning. Local non-majority municipalities would operate in a de-centralized fashion but under legislation passed in Pristina (Annex III, Article 4.2), and with central government (Article 6) retaining administrative oversight of local competencies. In the current circumstances, the level of trust between northern Serbs and Kosovo institutions seems insufficient to assume that the mechanisms envisioned in the Plan – as they are currently defined – would function smoothly and without engendering further conflict. Also, continued political differences over the status issue remain that seem to require recognition of the eight conditions cited above. In this context, various aspects of the Ahtisaari Plan may require further elaboration – the courts and police, education and health, finance and the mechanisms for involvement Serbia and of central government in local affairs.
a) The Courts
President Ahtisaari designed the Kosovo judicial system as unitary and multi-ethnic. In Kosovo, however, both sides see the justice system – courts and prosecutors – as a tool to impose authority on the other side. Finding a way to allow Serbs their own local courts within a district for the Serb-majority north, will probably be essential to gaining Serb support for any agreement. This requires implementation guidelines in three crucial areas – which law would be applied, who can become judges and prosecutors and how they are chosen? It would also be necessary to accommodate a northern district court within a Kosovo-wide justice system.
A possible solution to the issue of law and establishment of a separate district court for the north would be to allow the local courts and the northern district court to follow Serbian law, assuming it to be largely consistent with UNMIK regulations, the former Yugoslav code and the law used south of the Ibar River. A court of appeals would exist to settle disputes that arise due to substantive differences between codes, and for cases crossing jurisdictions between north and south. This court could be treated as a Kosovo court with equal membership drawn from the district court in the north and its equivalent from the south. It would operate with a rotating presiding judge and would reach decisions by consensus. Its decisions would be accepted as valid and binding throughout Kosovo (i.e., become part of common law). Where consensus decisions cannot be reached, the case would be referred to the panel of three international judges chosen according to Annex I, Article 6.1.3.
Judges and prosecutors in the four northern municipalities – at the basic and district court level – would be nominated under procedures contained in Annex IV, Article 4.4 – after, and only after, indication by the assemblies of the relevant municipalities and certification of qualification by the existing body of the district court in north Mitrovica. Candidates would not be ineligible because of service in the justice system of Serbia. At least one judge in each basic court and in the district court should be indicated from the non-majority community. Appointment and service would otherwise be according to the provisions of Article 3 and Article 4.5 except that dismissal would need the concurrence of the northern Kosovo district court president.
b) The Police
Annex VIII governing the security sector provides for (Art. 2) a “unified chain of command” for the Kosovo Police Service (KPS) but also that police districts should coincide with municipal boundaries. The ethnicity of the local police should also reflect the municipality’s ethnic composition. The procedures for choosing the local commander (Art. 2.6) are somewhat complex and require give and take between the municipality and central authorities:
“In Kosovo Serb majority municipalities, the local Station Commanders shall be selected according to the following procedure: The Municipal Assembly shall propose at least two names for Station Commander fulfilling all minimum professional requirements as set forth by Kosovo legislation. The Ministry of Internal affairs may then appoint one candidate from this list within 15 days upon receipt of the list. In the event none of the candidates are acceptable to the Ministry, the Municipal Assembly shall provide a second list of at least two different candidates for consideration by the Ministry, stemming from the existing Kosovo Police Service staff and fulfilling all minimum professional requirements as set forth by Kosovo legislation. The Ministry is then obliged to appoint one of the candidates from the second list within 15 days of its receipt.”
To avoid the procedure breaking down if the Ministry refuses to finally choose a candidate from the second list provided by the municipality, it would be mandated to make a choice within 15 days or the final choice would revert to the municipality.
The KPS in the north would function as an element of the Kosovo Police with the same uniform and with full logistical, supply and communications support from the central police command. The four northern stations would report to a northern district commander based in north Mitrovica and chosen from the Kosovo Serb officers serving in the north and agreeable – through process of consultation – to the northern municipal presidents. Both the northern and southern Kosovo Police districts would have a deputy commander drawn from the non-majority community on that side of the Ibar River.
c) Municipal Competences
Annex III puts its extensive list of competencies to be reserved for municipalities and the extended features for North Mitrovica into the context (Art. 4.2) of Kosovo legislation that would set standards to be met. Participation of the northern Serbs in Kosovo’s legislative process, through participation in elections and serving in the National Assembly, would help set those standards. Annex III (Article. 6) provides for administrative review of municipal actions by central government. If the central government and municipality disagreed, the matter would be decided by the Kosovo courts. In the case of delegated competencies, the central government could suspend, change or revoke the municipality’s action. This raises the prospect of a dispute between municipal authorities refusing to accept intervention by central authorities in local competences. To avoid this, Article 6.2 would be amended to provide that in cases where municipal decisions do not violate European standards, and where the decisions do not directly have affect beyond the municipal boundaries, decision by the municipal assembly is final. Where these conditions are believed not to be met, the President of Kosovo would be able to submit the issue to the panel of three international judges chosen according to Annex I, Article 6.1.3 to bring the municipal actions into accord with European standards or to limit their effect to municipal boundaries.
Annex III, Article 8 provides that municipalities “shall establish their own budgets covering tasks falling within their competencies” and that “central legislation shall set forth the basic public financial management and accountability requirements applicable to all municipalities, in accordance with international standards.” Municipalities are entitled to “financial resources of their own, which shall include the authority to levy and collect local taxes, charges and fees.” Municipalities are also to receive “primarily earmarked central grants” though a “fair and transparent block grant system, ensuring greater municipal autonomy in the allocation and expenditure of central funds.” Municipalities with “extended” competencies (including north Mitrovica) would be entitled to extra funds from central government for those services. In return, municipalities would submit to yearly “independent and objective internal audits” and “random, independent, external audits performed by an autonomous authority.”
Under Article 11, municipalities are also entitled to receive “financial donations” from Serbia. Such funds would be limited to what is required for a municipality to carry out its own competencies and must be “transparent” and made public through inclusion in the published municipal budget. These funds would be transferred through “accounts in commercial banks, certified by the Central Banking Authority of Kosovo” and notified to Kosovo’s Treasury. Receipt of funds from Serbia would not offset grants from the central government, nor be subject to taxes, fees or surcharges of “any kind imposed.” Also, pensions and other “individualized transfers” may be made by Serbia.
Annex III thus seems to allow Serbian-majority municipalities to retain full access to funding from Serbia. To ensure clarity, however, it might be specified that the only role of the Central Banking Authority of Kosovo would be to initially certify commercial banks, without being involved in actual transfers.
e) Inter-Municipal Cooperation
Annex III, Article 9 allows municipalities to cooperate and form “partnerships” with other Kosovo municipalities to carry out functions of “mutual interest.” “Municipal responsibilities in the areas of their own and extended own competencies may be exercised through municipal partnerships, with the exception of the exercise of fundamental municipal authorities, such as election of municipal organs and appointment of municipal officials, municipal budgeting, and the adoption of regulatory acts enforceable on citizens in general.” These partnerships can form “a decision making body comprised of representatives appointed by the assemblies of the participating municipalities” and provide for an administrative apparatus for carrying out its functions. “Partnership decisions and activities shall be subject to reporting requirements to the competent central authority and administrative review for compliance with legislation.” This would allow the four Serbian-majority municipalities in the north to form a “partnership” and would, of course, allow a similar body to be formed including all Serb-majority Kosovo communities. In cases where differences related to central government’s “administrative review” cannot be resolved by the two sides, the President of Kosovo would be able to submit the issue to the panel of three international judges chosen according to Annex I, Article 6.1.3 for adjudication.
f) Cooperation with Serbia
Annex III, Article 10 allows municipalities cooperation with Serbian municipalities and institutions “within the areas of their own competencies.” “Such cooperation may take the form of the provision by Serbian institutions of financial and technical assistance in the implementation of municipal competencies.” Municipalities would be required to “notify” central authorities “in advance” of any cooperation through presentation of a “draft cooperation agreement” laying out “the areas of the envisaged cooperation, the provision of staff and equipment, the level of funding and its processing mechanisms, and other relevant procedural arrangements, in accordance with public financial management requirements applicable to all municipalities.” The Kosovo Ministry of Local Government would review the draft agreement and might require amendments or suspend the planned cooperation. “The municipality may challenge such Ministry-action in the District Court competent for the territory of the municipality.” These provisions – plus those under Article 11 – would seem to allow, in practice, the full range of normal cooperation and support from Serbia.
g) Extended Competences for North Mitrovica
Annex III, Article 4 provided “extended” competences for North Mitrovica in the areas of higher education (“including registration and licensing of educational institutions, recruitment, payment of salaries and training of education instructors and administrators”) and secondary health care (“including registration and licensing of health care institutions, recruitment, payment of salaries and training of health care personnel and administrators”). The net effect of this provision plus others in Annex III would leave the north Mitrovica hospital and university as Kosovo Serb institutions under either municipal authority or as part of a northern or Kosovo-wide “partnership” with continued support from Serbia.
The central government (Annex III, Article 7) may object to the curricula or books used in local Serbian-language schools or by the Serbian language university in North Mitrovica. Disputes would be settled by “independent” commissions including equal numbers of Kosovo Serbs and those chosen by central government and an international by majority vote. The international would have been chosen by the International Community Representative (ICR). However, it might be best to alter this section to substitute the ICR nominee with an agreed international education expert and require decisions be made by consensus.
Article 13 of Annex III contains special provisions for the formally undivided municipality of Mitrovica. It splits the municipality into “Mitrovice/Mitrovica North and Mitrovice/Mitrovica South” with boundaries contained in a map drawn up by the Ahtisaari team. It provides for a “Joint Board” of the two municipalities “to carry out functional cooperation in the areas of their own competencies as agreed by the municipalities.” This Board would be made up of five members appointed by each municipality plus an international chair chosen by the ICR. Article 13 also gives the ICR a role in overseeing North Mitrovica until an election could be held.
The boundary drawn by the Ahtisaari team does not correspond to the Ibar River in the western part of north Mitrovica. Rather, it seeks to include Albanian-majority areas northwest of the Ibar River in the southern municipality. It also includes in that area a Serb-majority village. Not included is an area in north Mitrovica that has been the scene of uncoordinated returns by Kosovo Albanians. Whether this line makes sense or it would be better to draw the municipal boundary at the Ibar itself would have to be decided. No line can be easily drawn to separate the two communities. Some mixing is inevitable and may be desirable as providing both north and south opportunities for multi-ethnic reconciliation and mutual accommodation.
A joint board to allow a forum on cooperation between north and south Mitrovica – and across the Ibar in general – makes sense as many of the problems and opportunities in the region are shared. It might be best configured, however, as a completely voluntary mechanism made up entirely of equal numbers of representatives drawn from both sides of the Ibar River – and including representatives of the non-Albanian and non-Serbian communities – without any international involvement. As north Mitrovica has a functioning local administration, there need be no international role there either.
5) Elements not Explicit in the Ahtisaari Plan
The Ahtisaari Plan does not cover issues that are nevertheless important to settle in order to provide a supportive framework for implementing the plan in the north. Chief among these are customs, telecoms, energy (including the functioning of Gazivoda Reservoir and Hydro) and Trepca. It must also be clearly noted that the implementation of the Ahtisaari Plan might be expected to include: 1. participation of the northern Kosovo Serbs in Kosovo central institutions; 2. synchronization of local elections in the north with those in the rest of Kosovo; and 3. some functional presence and linkages of Kosovo institutions and municipal institutions in the north.
a) Customs, Energy, Telecoms and Trepca
Customs, energy and telecoms are all issues on the agenda for the talks between Pristina and Belgrade being facilitated by the EU. To support achieving agreement on implementing the Ahtisaari Plan, a way should be found to deal with these issues in a manner both status-neutral and practical.
Beyond rejecting the symbolism of allowing a Kosovo customs presence on the boundary, the northern Kosovo Serbs would probably resist any collection of Kosovo customs fees in the north on good beings used in the north. This leaves open the possibility of an agreement to allow Kosovo customs to record information at the northern boundary in support of EULEX while carrying out actual control and collection of fees in south Mitrovica for goods passing over the Ibar River. Longer term, however, an agreement on collection of fees in the north – for goods staying in the north (or channeled directly back to the north) that might be offset by abolition of Serbian VAT and a proportionate reduction in the Kosovo central government’s block grant due north municipalities – might be possible and desirable.
Leaving aside the issue of property claims by Serbian enterprises and an eventual liberalization in the telecoms and energy sectors allowing Serbian companies to operate openly and legally in Kosovo, it will probably be necessary to allow Serbian telecom and energy providers to operate freely in the north until these larger issues are resolved. A way should also be found to allow Trepca North to function within the context of any agreement between Serbia and Kosovo on customs. These measures would allow the Serbian community in the north to feel more secure in accepting the implementation of the Ahtisaari Plan.
b) The North as Part of Kosovo-wide
For the Ahtisaari Plan to be implemented in a way that preserves Kosovo’s territorial and political integrity and in a manner that makes it also acceptable to Kosovo Albanians, the north must relate organically to Kosovo institutions. The northern municipalities would act as municipalities of Kosovo according to the provisions agreed, including receiving the funding determined by the Plan and maintaining functional linkages to central institutions. Municipal elections in the north would be synchronized with those held Kosovo-wide. (These elections would, however, be run by the municipalities themselves with monitoring and assistance from the OSCE until other agreed mechanisms can function.) Northern Serbs would vote in and be open to service in central institutions – including the Assembly – without necessary reference to the status of those institutions. Individual Kosovo Serbs serving in the central government would forego any salary from Belgrade.
Funding from central government would be used, at least in part, to provide services for non-majority communities in the north and to fund the operations of an office of deputy mayor for non-majority affairs. This office would be headed by a deputy mayor to be elected in the regular elections. This deputy mayor and his/her office could also be designated – formally or informally – as liaison with central institutions. Officials of municipal administrations would meet regularly with officials of central government to discuss appropriate matters.
No mere document can deliver reconciliation, cooperation and progress. The Ahtisaari Plan, however, could provide a framework to allow the current tense stalemate over the north to give way to a process of normalization of life in the north and across ethnic lines. No document, however detailed, can guarantee smooth implementation and clarity on all points. Some aspects would have to be worked out in practice. However, providing mechanisms for all sides to begin acting and interacting in ways that do not challenge basic interests or raise unnecessary concerns would provide a good start; so long as both sides approach implementation with an understanding that continued conflict does not serve their interests.
About the Author
Gerard M. Gallucci retired from the U.S. Senior Foreign Service in June 2005 after a 25-year career in African and Latin American affairs, including service as Charge’d’Affaires in Brasilia (1999-2000) and Khartoum (2003-04) and at the National Security Council as Director for Inter-American Affairs (1998-99). He served subsequently as UN Regional Representative in Mitrovica (2005-08) and Chief of Staff for the UN Mission in East Timor (2008-10). He taught peacekeeping as an Adjunct Professor in the Graduate School for Public and International Affairs, University of Pittsburgh (2011). Prior to government service, Gallucci was Assistant Professor of Political Science, West Virginia Wesleyan College (1979) and Assistant Professor of Political Science, University of Arkansas at Little Rock (1979). He was born in 1951 in Jersey City, New Jersey and received a Ph.D. from the University of Pittsburgh in Political Science in 1978 and a BA at Rutgers University in 1973.
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