International Protectorate

The newest version of the Proposal for the Agreement on Kosovo, which the US Special Envoy, Christopher Hill submitted both to Belgrade and Pristina at the beginning of December, has been negatively assessed by Serbian officials and representatives of Kosovo's Albanians.  FRY President, Slobodan Milosevic stressed in his interview for the Washington Post that he cannot accept the degree of autonomy that Kosovo had in 1974, and that the proposal would need to be built upon.  After that, American Mediator Richard Holbrooke arrived in Belgrade in order, as it seems, to rescue the negotiation process, not giving any special attention to the negative assessments of proposals submitted thus far - given that the negotiation process consists precisely of those proposals.

1974 GHOST:  The reasons for Serbian dissatisfaction can be found in the fact that, in Hill's newest proposal, all mention of the Republic of Serbia is avoided, and in the fact that there is extremely scant mention of jurisdictions of the Republic in Kosovo.  For instance, it is stated that all institutions established by this proposal in Kosovo will have jurisdictions which are presently held by the Republic (with the exception of specially defined agreements).  After that, for instance, it is stated that the Republic can continue to maintain a system of health care and education, a system of war and other invalid security, health care for workers and work safety, as well as social welfare, but that this authorization will not be interpreted as limiting for the jurisdiction of the institutions of Kosovo to establish similar systems in similar areas.  Otherwise Kosovo is defined in the introductory part of the proposal as an integral part of Serbia (territorial integrity of the Republic of Serbia is mentioned).

All those proposals are in fact mere playing on words in order to satisfy the separatist ambitions of the Albanians of Kosovo and the aspirations of Serbian politicians for maintaining Serbia's territorial integrity.  According to Hill's proposal in October, a separate legal system would be established in Kosovo (presidency, ombudsman, assembly, assemblies and executive offices of the authorities of national communities, regular courts, common courts, committee's for controlling the police, etc.).  The police force would be community police, but its operations would be coordinated on the level of the region according to a double key system (Albanian Chief, Serbian Assistant), republican and federal police could enter Kosovo through a complicated procedure of permissions which would be issued by authorities in Kosovo, etc.  The Army's activities in Kosovo, according to this proposal, would be limited to the border belt, while its movements would be confined to special corridors.  Also presented are guarantees that representatives of the Region (which is called a Territory) will be represented in all republican and federal government institutions (parliament, government, courts), and that in sensitive services (police, customs) which are active in Kosovo, the structure of employees will be determined by the structure of the population.

According to the Serbian proposal there is a list of "Hill's institutions" (assembly, ombudsman, national councils, community police, etc.), except that Serbia retains key jurisdictions over control, such as federal government retains its right to maintaining territorial integrity and to organize a singe monetary and economic system.
In the newest proposal there is a bit of the ghost of 1974 - a Kosovo assembly would adopt a Constitution of Kosovo, and would adopt decisions which would regulate political, economic, social and cultural activity in Kosovo.  Republican and federal authorities would not be able to change the constitution and decisions adopted by the assembly of Kosovo.  The agreement itself is treated as a constitutional act, stating that it will have supremacy over all other legal decrees.

EXPERIENCED JUDICIARY:  Martial law cannot be declared in Kosovo without the consent of Kosovo's presidium.  Measures taken by the federal state which would give Kosovo different or discriminatory status will not be observed in Kosovo without consent from Kosovo's presidium.  Experience from Yugoslavia after 1974 tells that such authorizations mean the introduction of a veto through the back door.  Kosovo is getting the outlines of a third, fairly independent republic.  Admittedly, a republic within a republic, but in certain matters even more independent than the members of the federation.  Yugoslavia would take the shape of a federal-confederate community.

The disposition and use of federal military forces in Kosovo should be regulated by an annex in the agreement, along with the signing of an agreement on the police which will be submitted after expert consultations and will be included as an annex.

Kosovo will have a constitutional court, a supreme court, regional and community courts.  Courts in Kosovo will have jurisdiction over all issues which relate to the domain of the constitution of Kosovo, decisions by the assembly of Kosovo and laws of the Republic of Serbia.  Once all possibilities of appeal to the courts in Kosovo have been exhausted, then the case will be taken up by the Supreme Court of Serbia, if issues relate to the area of republican law, or by the federal courts, if they relate to federal laws.
The Republic of Serbia will continue to have special courts in Kosovo.  The citizens of Kosovo will be able to choose to have a republican or a federal court consider the matter, where federal criminal acts are concerned.  That which the proposals submitted thus far share is that the compromise government by nationalist pockets, regardless of how they might be incorporated into the legal system, will carry greater authority than the rule of law.

Autonomy of national communities is also very great in this proposal, but the procedure of synchronizing their interests is somewhat different this time.  The majority of elected representatives by a majority of a national community can prevent the adoption of a decision which threatens the interest of their national community, but in the same way the interest of any other national community; within two days of appeal against a proposal, they will have recourse to being themselves under threat.  Kosovo's Presidency will mediate in this and will try to find an acceptable solution.  According to one version, in the event that mediation does not result in mutual consent within seven days, the proposal will be voted on in the assembly.  The proposed decision will be adopted if it gets the support of all the members of the assembly (4/5).

According to another version, if the mediation does not result in consent within seven days, the issue will be handed over to the Constitutional Court.  The Constitutional Court will decide within ten days and will decide from the point of view of law whether the proposed decision threatens vital national interests.
Each side can appeal decision rendered by the Constitutional Court to the Director of the Kosovo Verification Mission, for as long as it is present in Kosovo, or to the Representative of the OSCE President, or to the President of the Joint Committee, each of which will, within ten days, resolve the conflict, acting as a court, with that decision being final.

FOREIGN REPRESENTATIVES:  There is more than one such suggestion of a protectorate.  The Joint Committee - which is topmost for monitoring and synchronizing the agreement - will be made up of representatives of the federation, of the republic, national communities in Kosovo, of Kosovo's political institutions, including the presidency and the ombudsman, as well as international representatives (including the Kosovo Verification Mission and the Contact Group).  During the ensuing ten years following the inception of the agreement, the president of that Committee will be an individual chosen by the OSCE President.  During this initial period, the president of the Joint Committee will not be a citizen of the Federal Republic of Yugoslavia or neighboring countries.  Following the initial period, the president of the Committee will be chosen by consensus between the President of Yugoslavia and the presidency of Kosovo.  In the even that an agreement is not achieved, an individual chosen by the OSCE President will be appointed the president of the Committee.

The president of the Joint Committee will have safe, complete and unhindered access to all places, individuals and information (including all existing documents) in Kosovo, and if this Joint Committee or the presidency it relevant, also to the Federal Republic of Yugoslavia.

In the event of disagreement with regard to the meaning of some decree in this agreement, each side can submit a complaint to the president of the Joint Committee, who will have the final word in the resolution of such disagreements, which will have to be respected by everyone.

According to one version in Hill's proposal, the majority of judges in the Constitutional Court will be chosen from the list submitted by the Council of Ministers of the Council of Europe, right up to the moment when the "sides" do not agree on a stop to such an arrangement, or until the Federal Republic of Yugoslavia becomes a member of the European Council, and until the procedure for appealing to the European Court according to the European Council's regulations is established.  The individual who would perform the duties of an ombudsman in the first four-year mandate would be appointed by the presidency of Kosovo, and would be elected by the assembly of Kosovo from a list of candidates which has been put together by the president of the European Court for Human Rights.

A protectorate was one of the demands by Kosovo's Albanians, with that possibility having been excluded by the referendum, consensus between the biggest political parties, parliamentary resolutions and many public statements, while the government unwillingly mentions the agreed to authorizations of international verifiers, and tries to gloss over this with many campaigns of paranoia.  American mediation is not being refused, but is being criticized in Serbian public life as support of separatist tendencies on the part of Kosovo's Albanians.  This probably means that the Serbian-Albanian agreements is still far off and that Mr. Hill will waste still more paper.