PILPG Advisory Board Member Morton Abramowitz and PILPG Managing Director James Hooper’s commentary regardingthe Balkans appeared in the National Interest. The article provides an insightful look at the upcoming advisory opinion of the International Court of Justice regarding the legality of Kosovo’s independence in 2008, which is expected to be announced later this summer. Ambassador Abramowitz, a senior fellow at the Century Foundation, served as Assistant Secretary of State for Intelligence and Research from 1985–1989. James Hooper is a managing director of the Public International Law & Policy Group.
The full article is included below and is also available at:
http://www.nationalinterest.org/Article.aspx?id=23676
Settling the Balkans
by Morton Abramowitz and James Hooper
07.08.2010
The curtain is about to rise on the next act of Balkan diplomacy: the fallout from the advisory opinion of the International Court of Justice (ICJ) on the legality of Kosovo’s independence in 2008, expected to be announced later this summer. The resort to the ICJ was a shrewd diplomatic stroke by Belgrade, buying over two years for Serbia to slow international momentum toward recognition of Kosovo and put the country’s UN candidacy into deep freeze.
No one knows what the court will do, but:
If the opinion favors Kosovo, that will bring the new state more recognitions to the significant but still underwhelming sixty-nine they have received to date. But they will not win recognition from Serbia nor admission to the UN because of a Russian veto. Nor will Serbia give up its demand for the northern part of Kosovo inhabited mostly by Serbs. Kosovo will have an improved limbo status.
If the opinion is against Kosovo, the fledgling state will keep its independence but lose some recognitions and the hope of getting into the UN or EU. It will be left in a more dangerous limbo and some serious popular violence against Serbs in Kosovo is quite possible.
If, as many expect, the court, understandingly fearful of the consequences of its decision, comes down on neither side, many states that have sat on the sidelines of the recognition debate will be more open to recognition, which Serbia well understands. Facing declining international leverage from their resolute opposition, Belgrade will likely seek to open negotiations with Pristina over their future relations. Kosovo, like it or not, will have to engage because its Western patrons will insist. This scenario has both risk and promise and serious ramifications not only for Kosovo and Serbia but also for neighboring Macedonia and Bosnia.
A Serbian Initiative to Square the Circle
Anticipating less than resounding support from the court, Serbia has begun laying the groundwork for a new diplomatic initiative. While they may initially attempt another round of “internationalizing” the problem at the UN, senior Belgrade officials have been whispering to Western officials and visitors that they want a deal on Kosovo. This in itself is a novelty, after years of cloaking their Kosovo demands in inflexible, emotional language.
The West is paying attention. But it is unclear to Western diplomats whether Belgrade is willing to compromise on terms that will make a stabilizing outcome possible. Serbian intermediaries insist on three things: a territorial adjustment returning the Serb inhabited districts of north Kosovo to Serbia, special treatment for several Orthodox monasteries in Kosovo, and an implicit understanding that the West will not let the Kosovars demand too much in return. Some officials indicate Serbia would be prepared to drop the campaign against further international recognitions of Kosovo independence and perhaps allow Kosovo into the UN but not recognize Kosovo. How firm a position this is remains to be tested. Serbian motivation is clear: to settle on borders that enable them to advance their EU accession agenda and keep the European assistance spigot flowing, while protecting their domestic political flanks
Some in Europe assert that it would be irresponsible to pass up an opportunity to explore Serbia’s flexibility on a new relationship with Kosovo. An indefinite frozen conflict in the Balkans needs to be avoided; the recent flare-up of violence in north Mitrovica shows the instability of the current standoff in the north. European officials would prefer to avoid settling for an indefinite frozen conflict; the thrust of their diplomacy, politics and economic policies for the past several decades has been to overcome national and ethnic divides and they believe they have learned important lessons in the process that translate into successful diplomatic tactics.
Washington is not uninterested but also fears danger and destabilization not simply opportunity. Talk of the North’s partition raises the specter that angry Kosovars would retaliate against Serbs living in other areas of Kosovo and could well stoke Macedonia’s restive Albanian community to break with Skopje and join with Albania and Kosovo to form a united Albanian state.
If a deal might be possible, it would make sense to work out the details and lock in an agreement. It is also sensible to recognize that a frozen conflict is better than risking renewed violence and the disintegration of Macedonia by rushing into negotiations on optimistic assumptions that might not bear fruit. The allies need to work out their differences and reach an understanding about what would constitute a stabilizing outcome before encouraging substantive negotiations between the two parties.
The Regional Dimension
Their first step should be to examine the regional situation and the impact of negotiations starting with Pristina.
Kosovo is lively and entrepreneurial but politically it is a mess. It aspires to be an independent Western oriented state, but its government is riddled with corruption and has largely squandered its moral standing among its own people and in the West. Continuing foreign rule has mostly failed to develop the institutions of a modern democratic state and set low standards in preventing corruption. Kosovo needs to be rid of the dependent mentality fostered by more than a decade of Western domination but still have access to Western aid and advice in many sectors. Kosovo’s leaders, however much at odds on domestic spoils, can unite on dealing with Serbia. They are not enthusiastic about negotiations but want any negotiations to leave Kosovo an independent state with its Serb-populated northern region part of Kosovo. They fear the West in its eagerness for a settlement will accept protracted negotiations that would ultimately lead to weakened support for Kosovar objectives. They also fear popular wrath from any “compromise” on the current de facto partition of the Serbian dominated north.
Serbia seeks admission to the EU, but European leaders have conveyed mixed messagesat times some seem to say that Serbia could achieve admission without resolution of the Kosovo problem. The Tadic government has basically continued the rejectionist stance on Kosovo of the previous Kostunica regime but in a skillful and nuanced fashion, which has won it friends abroad. Serbia has worked hard to maintain control over northern Kosovo, centered on the divided city of Mitrovica, which the West has done nothing to prevent since the 1999 war. While many Serbs are tired of the Kosovo problem and want the government to focus on issues central to their lives, the Serbian political class still is politically reluctant to risk changing their approach to Kosovo. Senior Serbian officials professedly recognize that Kosovo is lost to them but assert they cannot leave Kosovo “empty handed.” For similar political concerns Tadic needs to conclude any negotiated outcome well before Serbia’s April, 2012 elections.
Neighboring Macedonia is a parlous state and potentially the most directly affected by Kosovo negotiations. It remains divided between poor Albanians and slightly better off Slavs despite the painfully cobbled together Ohrid agreement to bridge the gulf between them and produce a politically viable state. Its hope to better preserve internal stability through admission to NATO has been held up by Greece’s refusal to allow the country to use its legitimate name. The Macedonian Albanians stay in close touch with their brethren in Albania and Kosovo and Albanian unification is on many minds. It has long been axiomatic among Balkans hands that any partition of Kosovo would lead to the breakaway of Albanian dominated western Macedonia.
The West and the Management of Any Negotiations
The EU and U.S. remain deeply involved in the area but with diminishing troops, money and governance. Their approach over the past two decades has been belated and invariably pragmaticone problem at a time. Dayton ended a war but did it on a permanent ethnic divide which has prevented political progress and the leader of its Serb entity openly promoting independence. NATO liberated Kosovo from Milosevic, but in establishing an independent entity left the territorial boundaries of the state uncertain in deference to Serbia. They furiously sought to keep Macedonia together through the Ohrid agreement but became distracted subsequently without doing enough to help make the state work better.
The EU has replaced the U.S. as the major arbiter in the area with money, troops and the hope of EU accession as the principal tool for bringing the countries along. Many fear the EU is not up to the task of resolving the Kosovo issue if only because of its divisions on Kosovo. The EU formula for progress in the area is still to be tested while hopes of accession have actually receded. Only in Kosovo has the U.S. remained the dominant player, often to EU chagrin, because the people of Kosovo consider the U.S. as their only reliable friend.
Right now Western countries are emphasizing negotiations, but meaning “technical talks” on passport, customs, and other issues between Serbia and Kosovo. These are important practical matters affecting the livelihood of their citizens, but do not deal with the broader issues between the countries and certainly not the ones that most concern the Serbian and Kosovo governments. Most recently the issue of Kosovo’s partition has caught public attention throughout the Balkans
One problem that Western negotiators face is that partition of Kosovo in exchange for potential UN membership for a rump Kosovo state is not a marketable proposition in Pristina. Nor can Serbia expect the West this time to pressure the weaker partyKosovoto accept terms that fall short of its minimal requirements. The challenge will be to determine whether there is sufficient flexibility in the Serbian position to make negotiations worth pursuing and enough for Serbia in the deal to shield the government from predictably violent criticism by opposition hardliners.
This is not to suggest that both parties have nothing to gain from an agreement. The Tadic government believes that it has little to fear from negotiations that could facilitate Kosovo’s partition, ease its entry into the EU, and rid the international community of a burden in northern Kosovo. Nor do talks present the Kosovars with solely lose-lose options. Most Kosovars prefer that their borders remain as they are, even if they don’t control them, to avoid dealing with the implications of changing them. But many would not likely mind shedding the 40,000 Serbs living north of the Ibar River, and welcome the opportunity to recover some of the ethnic Albanians living in Serbia’s Presevo Valley along Kosovo’s eastern border, that is a territorial swap. If done voluntarily and packaged as part of a normalization process with Serbia, many Kosovars might well see such a swap, whatever Western concerns of its ethnic nature, as a strengthening of their independent state rather than a betrayal by the West, but it would be controversial. All the main Kosovo Albanian political parties are on record opposing a swap. The West would also fear that Serbs in the “enclaves” further south would also flee to Serbia. Despite the controversy, a territorial swap may be the only circumstance in which loss of the north might be palatable to Pristina and thus provide the foundation for an agreement. It has often been suggested over the years since 1999, and just as often rejected by Belgrade, although there have been from time to time a few hints that it might now be conceivable. Belgrade apparently still believes that it can recover the North without any territorial swap.
Western governments will have to ask themselves what can be realistically achieved in any negotiations. After all, the promise of EU accession seems increasingly far off, and the U.S. has a pretty full plate. Political miscalculations are more the rule than the exception in the Balkans, and there is considerable risk that even sober-minded and experienced diplomats could launch a process that blows up in their faces. Even with two unfinished wars and troubles with Iran requiring continuing high-level attention, these are portentous matters for Washington to consider.
We believe that the essential prerequisite for a Serbia-Kosovo negotiating process that does not lead to regional instability is an understanding between the U.S. and the allies on a deal that fits within the following parameters:
Acceptance of the Helsinki principle that border changes between states cannot be imposed but are acceptable if mutually agreed. This would preempt any temptation to impose partition on Kosovo just to pacify Belgrade but leave the door open for a territorial swap should both parties conclude it meets their needs and helps stabilize relations.
Agreement by Serbia to allow Kosovo into the United Nation and willingness by Kosovo to accommodate Serbian insistence that it not be required to establish diplomatic relations with Kosovo presently as a reality of Serbian politics.
Commitment by NATO to bring Kosovo into the alliance after any negotiated settlement with Serbia. This would help authorities there resist irredentist tendencies.
Reinforcement of Macedonia’s security as an insurance policy against unexpected blowback from talks. This means a total Western effort to broker a settlement of the name issue with Greece and moving Macedonia quickly into NATO.
A unified, clear warning to Republik Srpska Prime Minister Milorad Dodik that secession from Bosnia is totally unacceptable, lest he escalate his efforts to weaken and undermine the Bosnian government into a full-fledged initiative to separate from the country and join Serbia.
Maintenance of Western military forces at some level in Kosovo until there is a better resolution of relations between Serbia and Kosovo.
An end date for Western political control of Kosovo. Whether talks produce anything or not, 2012 should be the end of the agreement for EULEX. Provision should be made for extensive technical and economic assistance to the Kosovo government.
If informal exploratory talks at an appropriate time with the Serbs and Kosovars reveal that a deal is not likely achievable, the West should halt the process before launching formal negotiations that raise expectations and do potential damage to regional stability.
If the Serbs indicate that they are not in fact interested in a deal the West should do what it has never been prepared to do: take control of the Serbian-ruled northern region of Kosovo. Belgrade should understand that failure to reach a deal means that they will lose whatever chance they may have in negotiations to recover the north, with the West then integrating northern Kosovo slowly but firmly into Pristina’s governing authority despite likely violent Serb resistance. Indeed we believe such a move should take place before negotiations beginby arresting leaders of the Serb politico-criminal gangs that control the northto make clear the West’s concern for partition, but we recognize it is highly unlikely that the US and its allies are either inclined or able to agree to make such a move now or later. That is unfortunate.
We are not unalloyed admirers of current Western policy toward the Balkans and do not take anything for granted about what the West does there. An unsettled Kosovo can create problems for the whole area. Resolution may not be at hand and the issue may remain a frozen conflict. Indeed there might not be any substantive negotiations. But a resolution would help strengthen all four troubled states of the former Yugoslavia and the ICJ opinion may offer such an opportunity. The West should also use any initiative on the Kosovo issue to make Bosnia a more effective state and to help enhance Albanian integration in Macedonia and persist in trying to resolve that country’s name issue.
About the Public International Law & Policy Group
The Public International Law & Policy Group (PILPG), a 2005 Nobel Peace Prize nominee, is a 501(c)(3) non-profit organization, which operates as a global pro bono law firm providing free legal assistance to states and governments involved in conflicts. To facilitate the utilization of this legal assistance, PILPG also provides policy formulation advice and training on matters related to conflict resolution.
PILPG's primary practice areas are Peace Negotiations, Post-Conflict Constitutions, and War Crimes Prosecution. To provide pro bono legal advice and policy formulation expertise, PILPG relies almost exclusively on volunteer legal assistance from more than sixty former international lawyers, diplomats, and foreign relations experts, as well as pro bono assistance from major international law firms. Annually, PILPG is able to provide over $10 million worth of pro bono international legal services.
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Paul Williams - Executive Director
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James Hooper - Managing Director
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