Kosovo – talks need not remain stalled over courts and police

Despite EU and US pressure, the latest round of talks between Belgrade and Pristina failed to produce agreement on the north and an "association" of Serb municipalities. The EU says the gap between the two is "narrow but deep." EU foreign policy chief, Catherine Ashton, will not call for another meeting unless the two sides consult among themselves and get back to her with something new to say. As of now, the lack of progress means Serbia probably won't get a date this month (this year?) for EU accession talks. The US ambassador in Pristina reportedly urged the two sides not to miss this "final chance" to make peace. The main issues dividing the two sides were reportedly the police and courts.

It's not clear what the US might mean by suggesting the current talks are a "final chance." Might some see this as a veiled threat of an ominous Plan B? It's clear that the EU and US thought that making Serbia choose between the EU and Kosovo would ultimately cause Belgrade to surrender the north. The US State Department reportedly said in Washington that it's Belgrade's job to deliver the northern Serbs to an agreement with Pristina. The Quint apparently continues to overlook that Belgrade cannot simply order the northern Kosovo Serbs to accept Pristina control - euphemistically called "sovereignty" -as they see it as threatening their continued existence.

The issue between the two sides has been presented as one over granting an association "executive powers." This is a false issue. As previously noted, the Ahtisaari Plan provides for municipal partnerships to have decision-making assemblies to deal with most municipal responsibilities. The Ahtisaari Plan also provides a framework for handling the courts and police that could be utilized for closing the gap between the two sides. The key problem for the northerners is that any role allowed Pristina, in choosing local police commanders and judges, would be used to put in place those who they believe would carry out an agenda of gaining control in the north in order to engineer a shift in the ethnic balance there in favor of Albanians. Bridging this gap would require two things from the Quint: taking a truly status neutral approach and being willing to play a direct role for a perhaps extended period. The Quint would like everyone to see Kosovo as a multi-ethnic democracy. In truth, however, both sides see central authority - and especially the police and courts - as tools to impose authority on the other side. Finding a way to allow Serbs their own local courts and police would be essential to gain Serb support for any agreement.

The Ahtisaari Plan provides a framework for the courts requiring (to be implemented) practical compromises in three crucial areas: which law to apply, choosing judges and prosecutors and accommodating a northern district court within a Kosovo-wide justice system. Possible solutions include establishment of a separate district court for the north and allowing local courts and the northern district court to follow a mix of Serbian law, UNMIK regulations, the former Yugoslav code and law used south of the Ibar River. A court of appeals consisting of an equal mix of judges from north and south and/or internationals might 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, operate with a rotating presiding judge and 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 might be referred to a 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) could be nominated under procedures contained in Annex IV, Article 4.4 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 would be chosen 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. Courts south of the Ibar would operate as already outlined in the Ahtisaari Plan.

Annex VIII (Art. 2) governing the security sector provides for 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 local 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 a procedural breakdown if the Ministry refuses to finally choose a candidate from the second list, after 15 days final choice would revert to the municipality. Or final choice could be left to an international regional commander.

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 could report to a northern regional 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 could have a deputy commander drawn from the non-majority community on that side of the Ibar River. Alternatively, both regions might be commanded by an international police officer.

None of these elaborations of the Ahtisaari Plan would create new "executive" powers for any association. They would simply be practical approaches to handling local issues that won't go away no matter what the US and EU wish. Is there any other Plan B?

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.