Kosovo – EULEX And Status Neutral Customs – Analysis
With KFOR clearly acting in violation of its UN Security Council mandate in supporting Pristina’s ban on Serbian imports, Kosovo Serbs are within their rights to expect EULEX to follow status neutral procedures should it insist on doing customs in the north.
By Gerard Gallucci
There can be no doubt that KFOR acted outside its UN Security Council mandate in supporting Pristina’s ban on Serbian imports. It did so by preventing commercial traffic through the northern crossing points into Kosovo. No doubt, really, as UNSCR 1244 gives NATO no political role as peacekeepers – the political role belongs to UNMIK. KFOR is also acting politically, and therefore illegally, in transporting Pristina’s police and customs officers to the Gates. Everyone knows this directly implies that NATO accepts Kosovo’s claim of sovereignty and independence. This is not status neutrality.
The case is a bit less clear with EULEX. EULEX is playing political favorites and, like KFOR, acting outside its status neutral peacekeeping role by having Pristina’s officers at the Gates as even “observers.” If EULEX were acting neutrally, there would be Serbian government “observers” there too.
But EULEX was passed the UN’s responsibility for rule of law in November 2008. And customs does fall under that. EULEX is also correct in asserting that under UNMIK, Kosovo was treated as one customs area. So, if EULEX is performing status neutral customs controls anywhere in Kosovo, that would be legal under 1244. EULEX also claims that this is not only its mandate but follows from the September 2 agreements between Belgrade and Pristina on customs stamps.
However, Belgrade denies the imposition of customs controls in the north was discussed or agreed in Brussels. It is also not clear that EULEX is doing status neutral customs control. An EULEX spokesperson reportedly indicated that EULEX would be collecting customs fees. This might be consistent with status neutrality if the mechanism and use of such fees had been agreed by the two parties or if the funds were put into escrow until there is an agreement. But Belgrade again denies there was any discussion or agreement on this topic.
We don’t know the details of what exactly EULEX will be doing at the Gates. It could be status neutral if no fees are collected or if such fees stayed in the north or went into escrow. Or if any information collected is shared with both Pristina and Belgrade. And if all legal commercial goods are allowed through and if Pristina officials present have no role in – or access to – actual customs/policing functions. Kosovo Serbs are within their rights to expect such status neutral procedures should EULEX insist on doing customs on the north. The same Serbs may be excused for having their doubts given KFOR and EULEX’s clearly provocative actions to support and appease Pristina’s efforts to inject its unwanted official presence into the north.
Gerard M. Gallucci is a retired US diplomat and UN peacekeeper. He worked as part of US efforts to resolve the conflicts in Angola, South Africa and Sudan and as Director for Inter-American Affairs at the National Security Council. He served as UN Regional Representative in Mitrovica, Kosovo from July 2005 until October 2008 and as Chief of Staff for the UN mission in East Timor from November 2008 until June 2010. Gerard is also a member of TransConflict’s advisory board. The views expressed in this piece are his own and do not represent the position of any organization.