October 29, 1998ASSESSMENT OF THE DRAFT INTERIM AGREEMENT ON KOSOVO
By Kurt Bassuener and James HooperSummary
The draft Interim Agreement on Kosovo was prepared by U.S. officials largely to meet Belgrade's aim of maintaining full control over Kosovo while granting Kosovo Albanians a modest measure of self-government. Touted as "autonomy-plus" by American negotiators, it instead falls far short of the autonomy that Kosovo Albanians enjoyed between 1974 and 1989 under the 1974 constitution. Though described as an "interim" settlement, it is in reality a final status agreement because it provides Belgrade with a veto over any changes in its terms. The tiny Serb minority in Kosovo is also given the right to block all legislation in the provincial legislative assembly. State administrative structures require a dual-key agreement by Serb and Albanian administrators that is likely to produce institutional gridlock. At the insistence of Federal Yugoslav President Slobodan Milosevic, there is no accountability for war crimes committed by either side, enabling Milosevic to continue evading his responsibility to extradite indicted war criminals to the U.N. War Crimes Tribunal. Moreover, despite the centrality of human rights violations as a motivating factor in the Kosovo Albanians' desire for independence, the agreement does not provide adequate human rights protection. The draft Interim Agreement has virtually no prospect of obtaining broad support among Kosovo Albanians unless it is reformulated to enable them to recover at a minimum the level of autonomy they enjoyed in 1989. In its current form, it will continue the radicalization of Kosovo Albanian society and prevent the reestablishment of a strong moderate political center.
A. Draft Interim Agreement
The Draft Interim Agreement:
* Provides for local government at the "commune" (county) level, with a municipal level below that.
* Gives the federal government in Belgrade responsibility for maintaining the borders, defense and security policy, foreign policy, a common market, and customs.
* Assigns responsibility for education to "national communities." Other functions for the Kosovo government would include providing law enforcement, "organizing services of communal importance," and collecting revenue to support these functions.
* Creates "organs of Kosovo," including an "Assembly, the Chairman, the Government, the Administrative Organs, and the Ombudsman."
* Provides for revisiting the agreement in three years, but stipulates that mutual agreement will be required to change it.
* A Law Enforcement and Security Annex to the agreement provides for giving "primary responsibility for maintaining public security and order in Kosovo" to communal and municipal police. According to the annex, "all law enforcement bodies operating in Kosovo will be representative of the population." Belgrade will control the customs police. Other competencies will fall within the realm of the Serbian Republic or the Federal Republic of Yugoslavia (FRY).
Analysis:
INTERIM: While termed an "Interim Agreement," the proposed arrangement allows both parties only to propose changes, with all changes subject to mutual consent. As such, the objection of one party to any proposed change would lock-in the "Interim Agreement" as a permanent one, despite its undemocratic nature and insufficient protection of human rights and freedoms. The agreement would give legitimacy to many results of Milosevic's policies in Kosovo, after he abolished the province's autonomy nearly a decade ago in an action regarded as illegal by the United States.
GUARANTORS: Even with President Milosevic's signature, the draft Interim Agreement is not likely to calm the situation in Kosovo or be instrumental in reaching a sustainable political solution to the war. There are no guarantors of the agreement and no stated role for the U.S. or other states or international actors to ensure that the provisions enumerated are adhered to. There are no mechanisms enumerated to ensure-or compel-compliance. Essentially, the U.S. is using its good offices to create arrangements that the Federal Republic of Yugoslavia and Serbian republic governments are then relied upon to implement. Judging from Belgrade's track record of reneging on its international commitments, there is little reason to presume these new commitments will be honored.
SECURITY: The agreement fails to address the issue of security for the population in Kosovo. The proposed document merely envisions reductions in Serbian security forces "outside the locations of their permanent encampments as the security situation allows." There are no listed penalties for non-compliance with even these meager requirements. No timetable is applied. There is no role for international monitors to verify adherence to the framework as proposed. In essence, security for the 90 percent Kosovar Albanian majority will be provided by the same Serbian state apparatus that has been conducting the war against them.
WAR CRIMES: The draft agreement makes no reference to the accountability of senior officials such as Serbian-Montenegrin President Slobodan Milosevic for war crimes. This omission is particularly ominous because the responsibility of all parties to cooperate with the International War Crimes Tribunal was explicitly stated in the first draft of the "Interim Agreement." In addition, the agreement subsumes everything in Kosovo to the legal systems of the Federal Republic of Yugoslavia and Serbia ("Each side will implement the Agreement in accordance with its procedures, including for the Republic of Serbia and the Federal Republic of Yugoslavia their respective legal systems..."), which do not allow extradition of indicted war criminals to the Tribunal. This means that the agreement allows Serbs (and Kosovo Albanians) to avoid war crimes accountability.
STATE STRUCTURES: There are no provisions to ensure that the state structures-including police-exclude those implicated in human rights abuses and violations of international humanitarian law stemming from the period of martial law since 1989 and the 1998 Serbian offensive against Kosovo's population. In fact, no mention is made of reform of the judicial system, which has been widely regarded as a tool of Belgrade-directed oppression since 1989. There are no provisions for public accountability for local administration. Belgrade would not have a responsibility to ensure adherence to human rights norms, despite the stipulation in the document that citizens have certain basic rights. While the document asserts that Kosovo residents could have access to the European Court of Human Rights consistent with its rules, these rules provide that the Court only has competence in states that have adopted the Convention. The Federal Republic of Yugoslavia has not done so and the draft agreement does not require it to sign.
INSTITUTIONAL GRIDLOCK: The agreement enables Kosovo Serbs, who constitute no more than ten percent of the population, to veto any legislation that they assert "affects the vital interests of their national community," thus frustrating the will of the majority in the Assembly. A similar structure was created at Dayton for Bosnia, resulting in institutional gridlock. All administration positions are to be evenly shared between Kosovo Albanians and Serbs, even though the former outnumber the latter by a ratio of 9:1. As such, the agreement is inherently undemocratic in nature.
REFERENDUM: The population of Kosovo is not given the opportunity to confirm its approval of the plan through a referendum or any other means. Indeed, the U.S. strategy in the negotiations is to treat Ibrahim Rugova, the elected president of Kosovo, as the sole arbiter of the Kosovo Albanians' popular will. Rugova, however, remains virtually alone among senior Kosovo Albanian politicians in his inclination ultimately to support a version of the U.S. draft agreement. There are also no provisions to ensure that Belgrade respects the wishes of Kosovo's population when the agreement comes into force.
WAR DAMAGE: There is no provision in the draft Interim Agreement for reparations for war damage on the infrastructure of Kosovo, including residences, businesses, livestock, and crops over the past seven months.
B. Assessment of the Law Enforcement and Security Annex
Key Points:
ADMINISTRATIVE GRIDLOCK: The pattern of gridlock noted in the Interim Agreement continues into the Law Enforcement and Security Annex. Throughout the Annex, a pattern of Kosovo Albanian officials, with Serbian deputies, emerges. At the Minister of Interior level, the Deputy is to take decisions jointly with the Minister "in every possible circumstance." At a minimum, the ethnic Albanian Interior Minister is to inform and consult with the Serb Deputy Minister on "all significant matters." At levels below this, the terminology is frequently that decisions are to be made "in concurrence with" the deputy, implying a veto. This is a significant departure from pre-1989 autonomy administration, designed to ensure the continuation of Belgrade's control over Kosovo through administrative measures.
HUMAN RIGHTS: References to "internationally-recognized standards of human rights" and similar phrasings are contained in the Annex, but they are not further defined or elaborated. This is a serious shortcoming, as law enforcement and security organs will have to translate these general human rights principles into day-to-day practice. More precise delineation of these principles, and their direct application, needs to be enumerated. Human rights concerns have been a driving force motivating the Kosovo Albanians to seek independence. For any interim agreement to obtain the support of the Kosovar Albanian population, it must have a strong human rights component. The agreement must provide reasonable assurances that human rights commitments will be carried out by the signatories. In addition, there is no reference to the rights of international organizations, such as the ICRC, to inspect detention centers or suspected facilities of detention. Considering the number of disappearances of both Kosovo Albanians and Serbs in Kosovo, this is a glaring omission.
WAR CRIMES: There is no reference in the Annex to mechanisms for directing and assuring cooperation between law enforcement and security organs in Kosovo and U.N. War Crimes Tribunal personnel who are investigating allegations of war crimes in Kosovo. Authorities in Belgrade responsible for granting access to the Federal Republic of Yugoslavia for tribunal officials should also be required to cooperate fully as signatories. Of utmost importance, Belgrade should be required to commit to the extradition of war criminals indicted by the tribunal.
POLICE VETTING: The Annex makes no mention of vetting police recruits for involvement in war crimes or other human rights violations. In Bosnia, the International Police Task Force (IPTF) published the names of police trainees in newspapers so as to inform the population and give them an opportunity to come forward with allegations. A similar system, taking into account the experience of the IPTF and improving on it, should be instituted in Kosovo.
C. Comparison of the Draft Interim Agreement with the 1974 Constitution
Major Flaws with the Draft Interim Agreement:
* The draft Interim Agreement provides less rights and privileges to Kosovo than the 1974 Yugoslav Constitution.
* The draft Interim Agreement provides more rights to the Federal Republic of Yugoslavia than were provided to the Socialist Federal Republic of Yugoslavia in the 1974 Constitution.
* The draft Interim Agreement does not provide an interim settlement, as there is no provision for a final status, other than the option for both parties to review the agreement in three years.
* The draft Interim Agreement creates a system of fragmented municipal and local government for the people of Kosovo rather than a system of regional government.
Elements Existing in the 1974 Constitution Which Are Absent in the Draft
Interim Agreement:
* Kosovo is referred to as "Kosovo" rather than the "autonomous province of Kosovo."
* There is no provision for a "President of Kosovo," rather there is a "Chairman of the Assembly."
* There is no provision for the President of Kosovo to sit on the rotating presidency of Yugoslavia (in part because Milosevic has abolished the rotating presidency by adopting the new 1992 FRY constitution-which the United States has declared illegitimate).
* The 1974 Constitution provides that the borders of Kosovo could not be changed without approval by the parliament of Kosovo. The Accords provide that the borders remain the same-but does not guarantee they will not be changed.
* The 1974 Constitution provided that Kosovo was an integral part of the SFRY federation. The Interim Kosovo Accords make no mention of Kosovo's status within the Federation.
* The 1974 Constitution provided that, like the republics, Kosovo would be equally responsible for implementing, enforcing, and amending the Yugoslav Constitution. The Interim Kosovo Accords provide no such authority for Kosovo.
* The 1974 Constitution provided that all international agreements must be ratified by Kosovo and the other republics and autonomous provinces before they would enter into force. The draft Interim Agreement provides no such authority for Kosovo.
* The 1974 Constitution provided that Kosovo would participate in the formulation of Yugoslav foreign policy. The draft Interim Agreement provides no such authority for Kosovo, and delegates all authority relating to foreign policy to the federal government.
* The 1974 Constitution provided that Kosovo would be directly represented in the national bodies of the federation, including the federal Parliament. The draft Interim Agreement provides that Kosovo will be offered 10 deputies in the federal Parliament.
* The 1974 Constitution provided that Kosovo would be directly represented in the Presidential Cabinet. The draft Interim Agreement states that Kosovo will be represented in the "government" but does not specify the Presidential Cabinet.
* The 1974 Constitution provided that Kosovo would be directly represented in the Federal Court. The draft Interim Agreement states that Kosovo will merely be offered one judge on the Federal Court.
* The 1974 Constitution provided that Kosovo would be directly represented in the Constitutional Court. The draft Interim Agreement for Kosovo does not provide for representation of Kosovo on the Constitutional Court.
* The 1974 Constitution provided that Kosovo was entitled to maintain its own Constitution. The draft Interim Agreement for Kosovo permits the Assembly of Kosovo to create organic documents but does not specify the authority to create a Constitution.
* The 1974 Constitution provided that Kosovo was entitled to establish its own banking policy, within the framework of the "common currency issue policy." The draft Interim Agreement provides for no such authority and delegates all authority relating to monetary policy to the federal government in Belgrade.
* The 1974 Constitution provided citizens of Kosovo the same rights to the protection of ethnic languages, culture and national minority rights as those in the Republics. The draft Interim Agreement for Kosovo provides for the protection of such rights, but does not declare they are on par with those in the Republics.
Elements Existing in the Draft Interim Agreement Which Are Absent in the 1974 Constitution:
* The Federal Government has an explicit right to patrol the borders and 10 kilometers of Kosovan territory within those borders. (extreme potential for abuse of this provision).
* The Federal Government has the right to establish an armed Federal Special Investigative Unit (FSIU) to exercise a wide range of authority. (great potential for abuse of this provision).
* The draft Interim Agreement creates a matrix of national communes (counties), replacing the regional government of Kosovo with a flat system of municipal and local governments.
* The draft Interim Agreement for Kosovo creates an ethnic veto in the Kosovo Assembly that will create institutionalized political gridlock similar to that created in Bosnia.
* The draft Interim Agreement for Kosovo creates an elaborate system for law enforcement and security-which creates numerous opportunities for abuse by Milosevic.
* The Federal Government is granted authority for maintaining the territorial integrity of Kosovo.
Rights Ostensibly Provided for by the Draft Interim Agreement Which Do Not Exist in Reality:
* The draft Interim Agreement provides that "every person in Kosovo shall have the right to apply to international institutions, including the European Court of Human Rights, for the protection of their rights in accordance with the procedures of such institutions." There is no international institution to which the people of Kosovo could in fact apply to for protection of their human rights-especially not the European Court of Human Rights since Yugoslavia is not a member of the Council of Europe.
* The draft Interim Agreement provides that the Chairman of the Kosovo Assembly shall be "responsible for conducting foreign relations consistent with the Constitution of the Federal Republic of Yugoslavia." The Constitution of the Federal Republic of Yugoslavia, however, contains no provisions permitting Kosovo to conduct foreign relations.
* The draft Interim Agreement provides that the Chairman of the Kosovo Assembly shall be "responsible for signing agreements on behalf of Kosovo after they are approved by the Assembly." As a non-entity, Kosovo has no international right to sign agreements, thus any agreements signed would not be binding.
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BALKAN ACTION COUNCILEXECUTIVE DIRECTOR ASSOCIATE DIRECTOR
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