Kosovo - what is to be done?

The inability of the UN Security Council to agree on a replacement for UNSCR 1244, plus Pristina's unilateral declaration of independence, has left Kosovo in a jumble since February 2008. Serbia rejects independence but is trying to pursue a pragmatic policy of rapprochement with Brussels, offering cooperation even at some cost to Kosovo Serbs. Kosovo Serbs are split between north and south - with the latter having little choice but to try to co-exist with the Albanian reality surrounding them - but both wishing for more outside help in preserving their communal existence than they get from either Belgrade or the internationals. The Kosovo Albanians are pushing for more international recognition while also using all means to press the Serbs - north and south - into accepting their subordinate place under the Pristina institutions. The countries supporting Kosovo's independence - led by the EU and US - are seeking to help the Albanians by replacing the UN and adding to the pressures on the Serbs. The Russians continue to support Belgrade and to insist on the UN's lead role.

With all the major actors going off in competing directions on Kosovo, the International Court of Justice will begin hearing in December submissions per Serbia's request for an advisory opinion on the legality of the declaration. The Court is unlikely to find clearly for or against either side. It cannot rule Kosovo independence outright illegal as the fact of independence cannot be undone by such a decision. It cannot rule the declaration legal as it clearly is not within the framework established by the UN in 1999. Also, any such ruling would set a precedent for every other secessionist movement. A judgment in favor of a unilateral succession from an internationally recognized state and member in good standing of the UN - such as Serbia in 2008 - would be a precedent in all other such cases, despite any arguments about Kosovo's "uniqueness". This might have been different within the context of a new UNSC resolution, but so far there is none.

So the Court will probably issue an advisory opinion somewhere in the middle but tilting somehow to Serbia as it is the existing sovereign state. Then what next?

Logically, there can be only three outcomes: Kosovo's status is settled through force, if not outright war then perhaps through targeted provocations or violence to further "clean-up" the ethnic map of Kosovo (and possibly southern Serbia); status is settled through new negotiations; or the current status quo becomes more or less entrenched for some indeterminate period (perhaps until the whole region merges into the EU). Of course in reality, the actual result may include all three, either at once or ad seriatum. But possible elements of a negotiation scenario can be discerned.

First are the elements that could go into a deal. I have noted before the contribution that might come from an Ahtisaari-plus approach. Essential would be finding ways to relate local Kosovo Serb institutions both to Serbia and to Kosovo. For example, Serb-majority municipalities might be allowed access to block grants from Pristina and/or funding for local services directly from Belgrade. The Ahtisaari Plan requires that funding from Belgrade go through Pristina but it could instead be through - or be verified and audited by - a third party acceptable to both Belgrade and Pristina. Education - including the university in north Mitrovica - is a local competency in Ahtisaari but the curriculum remains unsettled. Both sides would press for curriculum conforming to their "national" system. This might be resolved through mandating use of some neutral - perhaps European - standard. Courts might be re-opened by allowing existing local Serbian courts to operate with Yugoslav or UNMIK law, with cases involving appeal or differing jurisdiction going to international (EULEX) courts. Disputes over telecoms and electricity could be handled through expediting liberalization and grandfathering licenses to the existing Kosovo companies - north and south - to compete across the whole territory. The guiding principle would be to work out practical solutions to practical issues.

Or, it may be that after a Court ruling, the issue could be framed as one of defining Kosovo's borders. The legality of these borders cannot be justified on the basis of an UDI. Pristina and friends cannot have their cake and eat it too. They cannot on one hand claim that Kosovo's current borders are legal because they were established under Yugoslavia while also unilaterally declaring independence from the legal successor state.

The other element for a possible negotiation is "who" might facilitate and play the role of honest broker. As it now stands, the two candidates seem to be the Contact Group - again uniting the Quint and Russia - or the UN. Both have a legitimate mandate and the political responsibility to finish resolving Kosovo's status. The EU currently is not well-placed to fill this role. It seems lately to be tacking in its approach to the north, appointing a new envoy (the Italian ambassador to Pristina) and getting ready to open a new office. But the EU currently has no credibility with Kosovo Serbs. It has done nothing to intervene in Albanian efforts to press the southern Serbs to surrender and has supported Albanian efforts to take territory in north Mitrovica and to push Pristina institutions - customs, courts, KEK - into the north whilst squeezing Serbs everywhere to participate in the November local elections called by Pristina. The EU has repeatedly made clear that it is not neutral, with its role being instead to help spread Pristina institutions everywhere.

Finding ways to resolve Kosovo's status through dialogue and diplomacy would not be the hardest part. That would be to gather the political will to renew negotiations and, this time, achieve a mutually acceptable and implementable package or divorce. Maybe after the Court fails to settle the issue.

Gerard M. Gallucci is a retired US diplomat. He served as UN Regional Representative in Mitrovica, Kosovo from July 2005 until October 2008. The views expressed in this piece are his own and do not represent the position of any organization.

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