The legal labyrinth of Kosovo

Ahead of the international court of justice's ruling on the legality of Kosovo's unilateral declaration of independence, which is expected in the coming months, tensions continue to mount as both domestic and international actors reassert their stances. A much-vaunted new strategy for integrating the north into Kosovo's institutions has further distanced Kosovo Serbs, narrowed Belgrade's scope for manoeuvre and re-ignited Kosovo Albanian calls for a tougher stance towards the territory currently beyond its control.

Eulex (the European rule of law mission) increasingly finds itself in a twist; employed to serve the ends of others and yet unable to uphold its commitment to status neutrality. Developed in conjunction with the Kosovo government, the new strategy has provoked strong reactions from Belgrade. Serbia's president, Boris Tadic, described it as an "unnecessary and dangerous provocation" that "is a flagrant violation of security council resolution 1244".

The strategy aims to marginalise "parallel institutions" by, for instance, creating a new municipality (Mitrovica North) and organising elections in Leposavic, Zubin Potok and Zvecan - in accordance with the Ahtisaari plan - under Kosovo's legal framework. Serbs in the north of Kosovo, however, continue to oppose such decentralisation plans, describing them as "illegal and unacceptable". Meanwhile, Yves de Kermabon, the head of Eulex, has criticised the Serbian parliament's decision to appoint judges to parallel Serb courts, stating that "there can be only one judicial system in Kosovo" and that "Eulex is determined to help to reinforce the Kosovo institutions in the rule of law area ... [to] make the so-called parallel structures irrelevant".

These varying interpretations as to what actually constitutes an act of "illegality" or a "parallel institution" - the Kosovo Albanian institutions that unilaterally declared independence or the Kosovo Serb institutions opposed to secession - demonstrate the paradoxes created by attempts to unilaterally resolve Kosovo's status.

Despite confirming that the mission was consulted about the initial draft, Eulex has since tried to distance itself from the strategy; a futile gesture given the key role and enhanced presence assigned to it, particularly with respect to the three most contentious issues facing the north - policing, customs and the courts. Indeed, the new strategy purposefully ignores the six-point plan of UN secretary-general Ban Ki-moon, which provides status neutral and practical solutions to these very challenges.

With respect to customs arrangements, for example, while Ban Ki-moon proposes that the distribution of revenues collected at gates 1 and 31 should "benefit the development of local communities", the new strategy insists that when "revenue collection does begin, revenue should go to the central government". Having warned that peace remains "tenuous", Lamberto Zannier, the secretary-general's special representative for Kosovo, emphasised that "over the years we have learned that dealing with the situation in northern Kosovo requires sustained effort, constant engagement with the communities on the ground, and continuing consultation and coordination with all relevant actors".

The new strategy for the north eschews this advice and in fact aims at bypassing the UN entirely, despite the fact that Eulex's own deployment is permitted and governed by UN security council resolution 1244. Nor are such tensions confined solely to the north. In January, Serbia's minister for Kosovo and Metohija, Goran Bogdanovic, was prevented by the Kosovo police from visiting the Serb enclave of Štrpce, in the south of Kosovo, and was instead escorted to the administrative boundary line. The incident prompted Serbia's prime minister, Mirko Cvetkovic, to summon the ambassadors of Germany, Britain, France, Italy and the USA and to declare that such a violation of human rights and freedom of movement was unacceptable. Serbia's deputy minister for Kosovo and Metohija, Branislav Ristic, meanwhile, was recently detained by Kosovo police when meeting Serb returnees in the municipality of Klina.

Though Serbia has to date largely acted pragmatically towards Eulex, the latter's failure to remain status-neutral has severely compromised its mission. The latest strategy for the north has already become a source of considerable instability. Vehemently opposed by Belgrade and Kosovo Serbs, with Kosovo Albanians remaining adamant about its rapid and resolute imposition, the strategy is bound to further strain Eulex's capacity to act coherently.

Efforts to impose a final status, meanwhile, will only lead to a further escalation of tensions - both within and between Kosovo's Albanians and Serbs - that Eulex and the international community more broadly will struggle to contain, particularly as Nato continues to withdraw its soldiers. Despite being down-sized and reconfigured, The UN interim administration in Kosovo (UNMIK) may yet have a key role to play in facilitating constructive and status-neutral engagement in the north.

http://www.guardian.co.uk/commentisfree/2010/feb/02/kosovo-independence-icj-ruling