Kosova's undefined political status: source of regional crisis
by Adem Demaci, with accompanying report by Besnik Bala
The first of the two texts below was the basis on which Adem Demaci spoke at The Bosnian Institute' s regular monthly forum at the University of Westminster, 2 April 2001. Adem Demaci heads the Dardania Association, which recently presented to the public in Prishtina a draft constitution for Kosova. Sometimes dubbed the Kosovar Mandela because of the twenty-eight years he spent as a political prisoner in the former Yugoslavia, he has sought in recent years to explore the possibility of some new form of regional inter-state disposition ('Balkania') and to find ways of bridging the gulf between Kosova's own national communities. In 1991 the European Parliament awarded him its Sakharov Prize for Human Rights. The discussion at this forum was introduced also by Blerim Reka, an eminent legal expert who heads the Kosova Institute for Euro-Atlantic Integration, on whose behalf he has drawn an alternative draft constitution for Kosova - also recently made public in Prishtina (for the context in which these constitutional drafts were prepared, see second article below by Besnik Bala). Blerim Reka's theme was constitutional order as a precondition for the establishment of democracy.
The Undefined Political Status of Kosova: Source of Crisis in the Region
- theses for discussion
The history of the Albanian liberation movement in Kosova prior to 12 June 1999 is fairly well known, so I do not propose to go over it here.
After long and difficult talks at Rambouillet, and after great pressure in Paris from the main Western countries, in March 1999 the Albanians representing Kosova signed a document that foresaw essential political, military and administrative rights for Serbia in Kosova, which would have some ill-defined autonomy rather than the status appropriate for it. Nevertheless, although the formulations in the document were nebulous, we may still conclude from them that after a transitional phase the final political status of Kosova would be decided also by its citizens.
The Serbian side, for reasons both known and unknown, refused to sign the Rambouillet Document. As a result of this persistent and fanatical refusal to sign, the NATO Allies found themselves in an inescapable dilemma: either to stand together and intervene militarily against the criminal Serbian regime, or to split apart and destroy the alliance. Thanks to US and British determination, a constructive course of action won out against the line of destructive capitulation. On 24 March 1999 selective military action by NATO was launched against Serbian military and police forces and their facilities in Kosova and Serbia.
Resolution 1244 of the UN Security Council
During NATO's military action the Serbian regime openly showed its criminal and genocidal nature towards Albanians, committing massive, monstrous, and indiscriminate crimes against the Kosova population. Its crimes during the bombing and those 78 days of war increased tenfold even in comparison with those it had committed before. It was clear that the Serbian state treated Albanians neither as human beings nor as its own citizens. In spite of all this, the UN Security Council passed this resolution which was essentially unjust to the Albanians.
Resolution 1244 was in essence a reformulation of the Rambouillet document, and a resultant of the intertwined interests of members of NATO, the EU, the Council of Europe and the UN Security Council.
Under this resolution, Kosova is not defined as a colony, dominion or protectorate, but as a territory supervised by the United Nations. The armed forces in Kosova will be multinational K-For forces. The executive government, judicial system and police will be under the supervision of UNMIK, the civil administration under that of the OSCE. Above them all will be the Special Representative of the Secretary General of the UN (at present Mr Hans Haekkerup).
According to the Resolution, the citizens of Kosova in no circumstances have the power to decide their own future. At best they can act as advisers. In the last instance they have to obey the decisions and orders of the present rulers: K-For, UNMIK and the Special Representative. The duty of these international bodies present in Kosova is to apply Resolution 1244 and the treaty of Kumanova signed by K-For and the FRY forces at the end of the war.
The undefined status of Kosova in this way keeps open all options and possibilities, even illusory ones, for the Kosovars and for Albanians throughout the region. The undefined status of Kosova leaves the process of forming a national consciousness unfinished for most Albanians, because the nation is threatened by a variety of dangers. The undefined status of Kosova is delaying the establishment of a civic consciousness, even though such a civic consciousness is necessary in order to overcome the past, in order to help concentrate on the present, and in order to provide the foundation for a tolerant coexistence of Albanians with the ethnic minorities that live and want to live in Kosova, in a true democracy. Not defining the political status of Kosova has made this region into a focus for the interests of countries both near and far, above all Serbia. These interests are very often in friction and contradict one another. They are the causes and the generators of the crises in Kosova, Serbia and the wider region. Let me mention a few circumstances and developments to illustrate what I mean.
Recently a lot of words and nervous energy have been spent on whether the Constitution of Kosova should be called a constitution, a law or a legal framework. This is because, according to the Rambouillet Document, Kosova is defined as a territory under the sovereignty of FRY. A constitution implies a state, but according to Security Council Resolution 1244 Kosova is part of the sovereign state of Serbia. Kosova is not recognised as a state. So Mr Haekkerup argues that Kosova for the time being should not have a constitution, but merely a legal framework. The Kosovars, however, argue that Kosova has the right to a constitution, because even when it was part of the former Yugoslav federation it had a constitution. The two positions are irreconcilable. As a result there is judicial, economic and political crisis. Without a constitution there is no law. Without the law there is no normal political, economic or social development. Few of the regulations enacted by UNMIK have produced the expected result.
The economy in Kosova is in a very poor state, because of the lack of legal regulations. Privatisation is inevitable and urgently needed. The difficulty is in defining private, civic and state property. Who holds the title to Kosova=s property? Is it Kosova itself, Serbia or FRY? According to Resolution 1244 Kosova is not a state. Who owns all this property which has been dilapidated, which has been left inactive, and which has been rented out for laughable amounts? At the same time hundreds of thousands of Kosova citizens are wandering the streets unemployed, unable to provide for themselves.
Foreign investment is little more than symbolic, not because of any lack of interest, but because of the lack of legal regulation for the security of investments and investors. It has not been clarified who should sign or guarantee contracts with foreign partners. All this has to do with Kosova not being recognised as a state, even though it has been separated objectively and physically from Serbia (or what is left of Yugoslavia). According to Resolution 1244, the state that should formally sign and guarantee contracts is unable to do so, because of its lack of control in the area.
Security and defence
K-For controls Kosova's defence. It is undoubtedly a large military force, but because of Kosova's unresolved status unbelievable things are happening. Practically 20% of Kosova=s territory, including the part of Mitrovica north of the river Ibar, despite the presence of the K-For forces has been literally re-occupied by Serbia. This is because French K-For forces do not recognise the Kosova-Serbian border; because they recognise only the state of Serbia (or what is left of Yugoslavia). They ignore Resolution 1244 and the Kumanova Treaty signed after the withdrawal of Serbian military and police forces from Kosova. The mainly heterogeneous foreign forces are exclusively commanded by foreign officers, under the complete control of UNMIK. The numbers of Kosovar police are increasing, but they still have only a supplementary and secondary role. They do not have essential authority in the security mechanism of Kosova, even though they are most motivated. Bearing in mind the present situation which is in the hands of the international police, unbelievable things are happening. Not just once but on four separate occasions Serb captives accused of serious war crimes have escaped from prison in northern Mitrovica. If the Kosovar police had the necessary powers and responsibility, such events would not occur. If the Kosavar police had more responsibility, as natives and part of this nation they would quickly and successfully create the contacts needed in order to investigate and prevent such things. In this way the security forces would provide a more efficient service.
But once again we are faced with the obstacle of the undefined status of Kosova. The army and the police are the essential, all-important mechanisms for any state. But Kosova is not recognised as a state internationally. It can have policemen, but not its own police force. It can have a defence force wielding shovels and brooms, but not its own properly equipped army, because that would undermine the UNMIK authorities, which are under pressure to apply Resolution 1244. The lack of a local police force and army opens the way to criminal activities on an abnormal scale in Kosova.
The Courts and State Prosecution Service
The situation with the courts and state prosecution service is likewise not good at all. Kosovar judges are only formally part of Kosova's inefficient court system. There is so much proof of this it is unnecessary to go into boring detail.
How does the undefined status of Kosova impact upon political developments in Serbia? It
justifies the continued existence of a military and police complex forged for a hegemonic and anti-democratic Serbian state. Kosova's undefined position is needed by these forces to obstruct, and if possible completely prevent, democracy in Serbia. Democratic processes would naturally put an end to the existence of such forces, which are seeking - for the moment successfully - to use the unsolved Kosova issue in order to maintain the unity of the Serbian nation and in order to distract from vital problems without even addressing them. As soon as the political status of Kosova is defined, Serbia will turn towards itself; and the first thing the Serbian people will do is to get rid of the military and police complex, which for 100 years now has been the main inspirer, organiser and cause of all the tragedies and obvious huge mistakes of Serbian politics.
However, Serbia's current political circles led by Mr Kostunica, still burdened with traditional hegemonic notions, are clearly aware that without this strong military and police complex Serbia will lose its importance as a country and a factor in Southeast Europe. So they are hiding their ambitions and objectives behind Kosova. That is why they are preoccupied with Kosova.
Serbian hegemony is fed by the myth of Kosova. It was born with the occupation of Kosova and Macedonia in 1912, and will end only when Serbia loses Kosova. People who want to preserve Serbian hegemony are against defining the status of Kosova. They want to go on imposing their interests in the Balkans with the present disposition of forces. However, it is only by putting things in their natural place and establishing equality between nations and countries that the problems of Southeast Europe would disappear. For these reasons Kosova too is asking for its natural position as an independent state. After that, all the natural and organic integration processes will unfold, in the region and beyond.
However, for all the reasons I have given the crisis continues in Kosova, and is reflected outside it as well. But with globalisation no single interest can be kept inside a single country, region or even continent. The world has been transformed into one united interest, made up of all the countless different interests. That is why the interests of Kosova are the interests of all the world and vice versa.
Legal Framework or Temporary Constitution?
Autumn might once again be chosen as the season for holding elections in Kosovo. International administrators have said that organizing general elections is their basic goal and preparations are already under way. No one, however, knows what the elections will decide: that is, what institutions of temporary self-government will be formed in Kosovo, where everything continues to be temporary. The 'temporary' UN administrator in Kosovo, Dane Hans Hakkaerup, needed a full three months to finally take the first step in realizing his 'foremost priority' - beginning preparations for what is to serve as Kosovo's temporary constitution. At the beginning of March he said a technical-political working group had been formed to draw up a 'legal framework for Kosovo', an expression used instead of 'temporary constitution of Kosovo'. Eight international and seven Kosovo representatives (who include members of the Serb and Bosniak ethnic communities) met for the first time on 6 March to debate ways to draw up the 'legal framework', which will open the door to organizing and holding general elections and establishing temporary self-government in Kosovo. The administrator said that the group, which as he stressed was technical and political, would prepare the main document or, as he put it, the 'legislation above all legislation', as a substitute for a constitution. Ethnic Albanian experts immediately protested the use of the term 'legal framework', insisting that the document be called a 'constitution'. They said that even in the period of communist Yugoslavia and the Tito era, and also during the parallel system of the 1990s, Kosovo had its own constitutions, and that there was no reason why this should not be the case now. Surveys by the Kosovo Institute for Euro-Atlantic Integration have shown that over 90 percent of those polled say Kosovo should have its own constitution even in this transitional period. The chief of the UN Mission, however, responded that a 'legal framework' would be created on the basis of UN Resolution 1244, and that it should not decide the final status of Kosovo in advance, since this should be the topic of future negotiation. That is why, he added, the document cannot be a constitution. UNMIK has already delivered its own project to the working group. It simultaneously announced that after the final version of the 'legal framework' is adopted, elections will be scheduled to take place within six months of adoption day. If the document, as forecast, is completed in a month's time, then elections could be held in October. It is still not known what bodies will be formed, however, and what institutions the 'legal framework' will create. They will be decided inside the working group. UNMIK says the document will form an Assembly or Parliament, a President or Presidency, and a Government of Self-Rule. Ethnic Albanian legal experts, however, insist on the same institutions that all internationally recognized states have, despite the fact that Kosovo does not enjoy such a status. So far they have proposed several drafts of what they call a 'temporary constitution' for Kosovo, envisaging a President and all other legislative and executive bodies. Some 30 jurists assembled in an organization called the Constitutional Forum of Kosovo have also gone public with their proposal to form a Constitutional Court. There are also calls for the formation of defense and security bodies, and a national intelligence service (a kind of Kosovo CIA). At the top of all this is 'the right of the people to self-determination through a referendum, which should be organized at the end of the transitional period.' The adoption of the 'legal framework', however, is likely to be a tough nut for international and domestic legal experts. The latter do not appear to be overly elated by the prospect of being invited to participate in the project's realization, because they believe that even though their foreign colleagues might read their proposals, that would not at the same time ensure their adoption. The final say remains with the international mission and its head, of course; at the same time, the Kosovo Albanian representatives themselves have not agreed on certain basic issues either. For instance, representatives of political forces that cannot hope to win in forthcoming elections do not insist on Kosovo having a President, whereas those who believe they will win say that this institution is essential.All in all, it appears that Kosovo may have to wait for its Constitution for quite some time; and that all it can hope for are general elections, though these are of great importance for its future. The Kosovars are in a hurry to have such elections over and done with, so that the process of transferring authority from the UN Mission to themselves can begin. In conditions of insecurity and instability, they may be 'forced' to compromise on the future system. Taking over means that they will also have to assume responsibility for establishing law and order. This will help local political leaders out of their current predicament, in which they have an obligation to react to and foil every undesirable event, but lack the power actually to do anything, they claim.
This comment was published by AIM Prishtina,
28 March 2001