Kosovo: Myth Busting – Analysis

A number of myths about the north of Kosovo – including that there is a military/police solution to its refusal to accept rule by Pristina and that EULEX is acting legally in seeking to impose Kosovo customs in the north – continue to jeopardize peace and security.

By Gerard Gallucci

The situation in north Kosovo may have stabilized; not quite back to July 25th, but substantially much the same. It can be said that the Quint/Thaci effort to change the situation on the ground in the north by bringing the Serbs to accept rule from Pristina has failed. While the local Serbs have certainly been affected by the moves by KFOR and EULEX to isolate them from Serbia proper and impose Kosovo customs at the northern Gates, their resistance in the form of peaceful protest and barricades has stalled the Quint effort to make them accept the Kosovo state. EULEX has not backed away from its plan to impose Kosovo customs at the northern crossings. But as the locals have blocked these, there is nothing for customs officials to do. The Serbs appear able to find ways to cross the boundary quicker than KFOR can close them. KFOR may be tiring of chasing down trucks and providing helicopter service for Gate workers. The new – perhaps more sensible – KFOR commander is reportedly urging a political approach to resolving the current crisis rather than looking for military solutions.

Thus, the first myth that apparently still needs busting – that there is a military/police solution to the northerners refusal to accept rule by Pristina. In March 2008 this failed and it has failed again. Not even placing a large occupying force on every road and town center can compel people to give up institutions they view as their own, and to accept those they find illegitimate. NATO never had the stomach for this, but let itself be used by the US to back up Thaci’s politically-motivated effort to steal the north. KFOR’s support for Pristina’s trade embargo was, and remains, illegal under its UNSCR 1244 mandate. And it has not worked; there remains no solution to the north through use of force.

Next, the myth that criminals are forcing the northerners to refuse the benefits of being ruled by the majority-Albanian government in Pristina. The Serbs have been holding weddings, classes and parties on the barricades. They have been peaceful but insistent. They blocked the northern Gates while building a new boundary along the Ibar on main roads crossing the line to the majority-Albanian south. But the “hoodlum” myth remains dangerous as even now Thaci is using it to justify his call to impose a Kosovo court in north Mitrovica. Hopefully, KFOR and EULEX will not rise to this provocation.

The next busted myth is that EULEX is acting legally in seeking to impose Kosovo customs in the north. It claims that treating Kosovo as one customs zone, plus the agreement on customs stamps agreed to early this month, means that it can support the establishment of Kosovo customs in the north and the collection of fees to be sent to Pristina. Some argue that EULEX’s mandate includes helping develop the Kosovo state. But the UN passed EULEX responsibility for rule of law in November 2008 with the condition that it be status neutral. Whatever customs regime might be established, it would have to meet that condition. Imposing Kosovo customs and officials and collecting funds for Pristina clearly would not. And any agreement on customs stamps between Belgrade and Pristina does not, ipso facto, allow EULEX to apply it where Belgrade and the local Serbs refuse to accept it. Finally, while EULEX does also have the mandate to help develop Kosovo institutions, this does not extend to acting in a one-sided manner to impose them where there is no agreement to do so. EULEX’s UN mandate for status neutral peacekeeping trumps that. (EULEX should act speedily to release the 13 truck drivers arrested by Pristina for illegal entry. Crossing from Serbia to Kosovo in the north has never required a Kosovo visa or entry stamp. To allow the arrest to stand would be a violation of status neutrality.

The final lingering myths are that the Quint/Pristina effort to seize the north is legal as it enforces a Kosovo state and constitution that the ICJ found legal and that Serbian “parallel” institutions are illegal under UNSCR 1244. The ICJ never said that the Kosovo declaration of independence or state were “legal.” It said that there was nothing in international law on the subject and noted that the Pristina UDI was made outside the ambit of UNMIK. The ICJ did reaffirm the continued legality of UNMIK. One could argue that Kosovo independence and institutions are a fact – they are – but not that they were found legal by the ICJ. Under international law, UNMIK remains the official administrative authority for Kosovo. Any other institutions are therefore parallel to it. But in the north, the local institutions fly under the UN flag, south of the Ibar they don’t. Some are therefore more “parallel” than others.

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.