Kosovo – if EULEX leaves, then what?

The Kosovo government has begun pressing its internationals - the five Western powers that supported its unilateral declaration of independence, the Quint - to get ready to leave by telling them this is the last year of "supervised independence."  This would entail the departure of the European Rule of Law Mission (EULEX) and the International Community Office (ICO).  EULEX, however, also exercises the UN's rule of law mandate under UN Security Council Resolution 1244.  If it leaves, who take that over?

Kosovo's prime minister, Hashim Thaci, started the debate over the future of the international missions at the turn of the year by suggesting it was time for "complete independence."  It may be that his comments were in hope of future electability but they have sparked further discussion against the backdrop of already announced ICO plans to wind down its mission this year, and the planned departure of US NATO forces in 2013.

The ICO has long been moribund and its departure would be hardly noticed by anyone.  The bigger question is EULEX.  The Kosovo government apparently sees its role being reduced to dealing with war crimes and international crime.  Pristina sees itself taking responsibility for justice and policing with little need for EULEX.

EULEX has responded to the current speculation by noting that while a "strategic review" is taking place on its future, "no decisions have been made regarding any future, potential re-shaping of the mission."  EULEX chief, Xavier de Marnhac, is quoted as saying that any decision would have to be approved by EU members.

A potential decision to withdraw international supervision of Kosovo raises various issues, including whether Kosovo can indeed stand on its own at this point, whether the existing elements of minority protections and participation south of the Ibar would be maintained without international supervision and how any changes could be squared with the continued existence of UNSCR 1244.  To be sure, some actors - certainly the Kosovo Albanians and the US - do not see the continued relevance of the UN mandate for Kosovo.  That mandate still exists, however, and has the force of international law (as confirmed by the ICJ in 2010).

The continued relevance of 1244 is most specific in the area of rule of law.  In November 2008, the UN Security Council allowed the Secretary General to transfer UNMIK's responsibility for rule of law in Kosovo to EULEX.  Under the accepted terms, EULEX was to take the place of UN police and justice and act in a status neutral fashion.  EULEX has not generally acted in a status neutral fashion but it does represent at present the sole international element linking the local justice and police functions exercised in northern Kosovo to a Kosovo-wide framework.

The EULEX statement on its "strategic review" makes no mention of the need to also consult with the UN.  If EULEX simply exits Kosovo, there would be a vacuum in the international framework for rule of law.  Pristina might wish to fill that space but without any agreement with Belgrade and local Kosovo Serbs, that probably would lead to conflict.  Without some agreed formula for the north, if no one took EULEX's place, that would be a form of partition.

Without modifying or replacing UNSCR 1244, the responsibility for rule of law in Kosovo - and most specifically in the north - would revert to the UN should EULEX leave.  This might mean the need to return UN police and judges to the north.  Many might view this situation as difficult to accept.  The Quint's unilateral decision to impose Kosovo independence in 2008, however, left a host of difficult and unsettled questions.  It would be unfortunate if the Five decided they didn't exist and simply departed.  It would be even worse should the Quint and its agents - KFOR and EULEX - seek again to try use of force after the winter snows clear.

Some in the Pristina media are speculating that Serbia's president, Boris, Tadic may seek to help the Quint meet Thaci's deadline by somehow removing the barricades and replacing the "illegal" municipal leaders.  Some are still wringing their hands over the "refendum" called for February.  However, there are also signs the UK and perhaps even the US are open to some "broader" Ahtisaari Plan for the north.  In any new compromise approach to the north, however, the UN may still have a role.