florian bieber, the legal framework for post-war kosovo and the myth of multiethnicity

8/7/2019 Florian Bieber, The Legal Framework for Post-War Kosovo and the Myth of Multiethnicity

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Managing Hatred and Distrust:The Prognosis for Post-Conflict Settlement

in Multiethnic Communities in the Former Yugoslavia

Edited by Nenad Dimitrijevi and Petra Kovacs


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First edition published byLocal Government and Public Service Reform InitiativeOpen Society Institute

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THE LEGAL FRAMEWORK FOR POST-WAR KOSOVOAND THE MYTH OF MULTIETHNICITY

By Florian Bieber

Contents

1. Introduction: The Meaning of Multiethnicity in Kosovo . . . . . . . . . . . . . . . . . 118

2. Rambouillet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

3. The Constitutional Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

3.1. The Institutions of Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

Figure 1: The Institutional System of Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . 125

3.2. The Role of Yugoslavia in Kosovo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1273.3. Lessons Learned from Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Table 1: Results of the Election for the Kosovo Parliament, Nov. 16, 2001. . . 129

Figure 2: Seats in the first Kosovo Parliament. . . . . . . . . . . . . . . . . . . . . . . . . 130

4. Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

5. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

115


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THE LEGAL FRAMEWORK FOR POST-WAR KOSOVOAND THE MYTH OF MULTIETHNICITY

By Florian Bieber

In their efforts to create a multiethnic Kosovo,1 international administrators are embark-

ing on an ambitous strategy of seeking to create a state of interethnic relations that hasnot existed in the territory in recent years.

The past decade has been marked by a complete segregation of Albanian and Serbian

society in Kosovo, with minimal interaction between the two groups. And, unlike other

parts of the former Yugoslavia, Kosovo does not have a previous tradition of peaceful

coexistence among the main ethnic groups inhabiting the territory.

The 1999 Rambouillet proposal and the constitutional framework of 2001 both seek to

protect minorities without defining who the real minority is in Kosovo, as such a definition

would indicate the future status of the territory. The agreements also both seek to de-empha-

size territorial divisions among ethnicities in minorities, in an intentional effort to make thesedivisions less important. Although Serbs in Kosovo currently live in separate enclaves, with

restricted freedom of movement, it is clearly the hope of the international community that

this arrangement should not become permanent. This approach represents a departure from

the agreement that the international community brokered in Bosnia, where territories are

divided along ethnic lines, and it indicates an effort to correct mistakes made in past agree-

ments in the former Yugoslavia. The desire to de-emphasize ethnic enclaves also indicates

the international communitys perhaps misguided desire to create a multiethnic Kosovo.

The constitutional framework for Kosovo was not developed with internal involvement,

but was instead imposed on the territory by international administrators. Nonetheless, itallowed Kosovo to establish its own institutions and remove international administrators

from the day-to-day running of the countryand it allowed for the countrys first elections.

The constitutional framework lacks a power-sharing arrangement or any provisions

for true local autonomy. It does offer guarantees of minority representation, and in Kosovos

first election to territory-wide institutions, on Nov. 17, 2001, minorities were able to win

the seats guaranteed to them, along with some additional seats. The difficulty involved in

forming a government after those elections indicates the difficulty of getting Kosovos par-

tieseven the Albanian partiesto work together.

117

1 This aim has been repeatedly made clear by key Western policy makers, i.e. Madeline Albright, RFE/RLNewsline, July 29, 2001. Some scholars even advocated reestablishing a multiethnic Kosovo. See i.e.:Eric A. Witte, Reconstructing Kosovo: The Ethnic Dimension, Kurt Spillmann & Joachim Krause(eds.), Kosovo: Lessons Learned for International Cooperative Security, Bern et. al.: Peter Lang, 2000.


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Although efforts to encourage a multiethnic society in Kosovo may not be the answer

to the territorys problems, alternatives proposed by Serbian thinkers, involving parti-

tioning or cantonization of Kosovo, appear unfeasible and unacceptable to the Albanian

majority. The limited scope of these plans shows the lack of thought given to alternatives

to the current arrangement.Yet the current arrangement is clearly inadequate, and offers insufficient protection to

the Serbian minority in Kosovo. Despite having probably the highest density of interna-

tional organization and military anywhere in the world, Kosovo remains a territory with

an unclear long-term political status, a deeply divided population, and a high rate of basic

violations of human rights.

This chapter will seek to explore how the international community has tried to insti-

tutionalize interethnic relations in Kosovo in recent years and to evaluate the impact of

those efforts. The Rambouillet proposal and the constitutional framework will be exam-

ined, and the implementation of the latter will be traced in the aftermath of the first Kosovo-wide elections. In addition, the chapter will discuss some proposed alternatives to the cur-

rent institutional set-up. The chapter concludes with a discussion of the types of institutions

that are most adequate in deeply divided societies like Kosovo. The conclusion also address-

es the question of whether it is worthwhile to pursue the idea of a multiethnic Kosovo.

1. Introduction: The Meaning of Multiethnicity in Kosovo

In discussing the future of Kosovo, members of the international community often seem toequate multiethnicity with the presence of different ethnic groups on the same territory, irre-

spective of their interaction. While the existence of more than one community is certainly a

pre-condition for a multiethnic environment, shared space is not enough. Instead, multieth-

nic society has to be based on the concepts of recognition2 and inclusion3 of the other.

The identification of a state or territory as multiethnic does not suggest any particular

institutional or constitutional mechanisms for managing diversity. It does, however, exclude

some macro-political processes. Any institutional or political steps to end diversity would

be excluded by definition. Such steps might involve morally repulsive instruments, such

as genocide and population expulsion, or more benign instruments, such as integration.Acceptable tools for managing multiethnic societies range from varying types of autono-

my to power-sharing arrangements.4 It has been remarkable in the context of Kosovo that

the support for multiethnicity has not been coupled with a clear support for any partic-

ular institutional and/or other macro-political approach in managing this multiethnicity.

118 MANAGING HATRED AND DISTRUST PART III

2 See Charles Taylor, Multiculturalism and The Politics of Recognition, Princeton: Princeton UniversityPress, 1992.

3 See Jrgen Habermas, InklusionEinbeziehen oder Einschlieen? Zum Verhltnis von Nation,Rechtstaat und Demokratie in Die Einbeziehung des Anderen. Studien zur politischen Theorie,Frankfurt: Suhrkamp, 1996, pp. 154-184.

4 John McGarry, Brendan OLeary, Introduction: The macro-political regulation of ethnic con-flict, in John McGarry; Brendan OLeary, eds., The Politics of Ethnic Conflict Regulation: Case Studiesof Protracted Ethnic Conflict, London: Routledge, 1993, pp. 1-40.


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The term multiethncity suggests the importance of recognizing the existence of different

ethnic groups5though in Kosovo ethnic divisions are politicized. The term also suggests a

normative stand in support of diversity. As such, it emphasizes ethnic or national identity while

at the same time attributing implicitly or explicitly positive values to the political relevance of

these identities. As we shall see, in the case of Kosovo, this twinning might be problematic.As it is not the purpose of this chapter to trace the history of Serbian-Albanian relations,

it shall suffice to note thatunlike in other parts of Yugoslaviaperiods of peaceful coexis-

tence between these two groups have been rare in the 20 th century. Relations were mostly

marked by a high degree of distance, suspicion and stereotyping.6While, doubtlessly, there

have been many instances of cooperation and coexistence, tensions have been higher between

Serbs and Albanians than between other nations in the former Yugoslavia.7 The creation of

a multiethnic Kosovo based on peaceful coexistence thus has to create a new state of Serb-

Albanian relationsand not re-establish previously existing political arrangements.

The concept of multiethnicity could be considered a misrepresentation of the state ofnational groups in Kosovo. According to the population census of 1981, the last reliable

census in the province,8Albanians constituted 77.4 percent of the total number of 1.59

million inhabitants, while Serbs and Montenegrins made up 14.9 percent. The estimates

of the census of 1991 place the percentages of the populations at 82.2 and 10 percent

respectively.9 Thus, even if there was a complete return of all Serbs and other minorities

who left since the beginning of the international administration in Kosovo in June 1999,

the number of minorities in Kosovo would be lower than in Croatia prior to the war in

1991.10 The term multiethnic could therefore be considered misleading, because it

implies a higher degree of diversity than really exists in Kosovo.11Veton Surroi, publisher of the Kosovo daily Koha Ditore, outlined another difficulty

with the concept of multiethnicity in Kosovo:

I would advocate a tolerant Kosovo, but not necessarily a multiethnic one. This

reminds us of the brotherhood and unity in socialist Yugoslavia that failed in flames, as

THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO 119

5 If this were not the case, multiculturalism might be more appropriate.6 Sreko Mihailovi, Ethniki autostereotypi i heterosterotypi na Kosovu, Sociologija 55, No. 3,

July-September 1998, pp. 411-426; Wolfgang Petritsch, Karl Kaser, Robert Pichler, Kosovo/Kosova.

Mythen. Daten. Fakten, Klagenfurt: Wieser Verlag, pp. 73-153.7 Such an assessment can only be made for the 20th century, as the relationship between Serbs and

Albanians prior to the past century were not marked by nationalism. Thus, cooperation and con-flict were determined by other considerations, such as religion and the relationship to the state.

8 As the Albanian population in Kosovo boycotted the 1991 census, the numbers are merely estimates.9 Herbert Bschenfeld, Ergebnisse der Volkszhlung 1991 in Jugoslawien, Osteuropa, Vol. 42,

No. 12, December 1992, pp. 1095-1101; Jens Reuter, Die albanische Minderheit in Jugoslawien,in Roland Schnfeld (ed.) Nationalittenprobleme in Sdost Europa, Mnchen: Oldenbourg, 1987,p. 141. According to Albanian estimates, the percentages for 1991 are 90 percent for Albaniansand 8 percent for Serbs and Montenegrins. Kosova Factbook, http://www.ioc.com /~ulpiana/

Albanian /Kosova /factbook.html.10 According to the last census, 12.2 percent of Croatian citizens in 1991 were Serbs. See Bschfeld,

op. cit.11 This assessment shall in no way endorse the way in which this homogeneity has developed in

the course of the past decades.


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we have seen. There is a realistic life for Serbs here. Unfortunately, it will be a longer

process than we had originally foreseen. It is also very painful, because at the same time

Serbs from Kosovo have to define their local identity. Before they were always defined as

(Slobodan) Milosevis Serbs.12

Surroi emphasizes the ideological underpinnings that are associated with the termmultiethnic. These ideological factors deserve further examination, beyond demographic

and historical questions regarding this concept. While ethnicity has been the most salient

feature in Kosovo in the course of the recent past, one has to question the pronounced

emphasis of the term multiethnic in seeking to preserve ethnic divisions and identify

them as a prime characteristic of Kosovo.

The process of defining local identity, as outlined by Surroi above, cannot be limited

to the Serbian population alone. The Albanian population is also forced to define its local

identity. The extended suppression by the Yugoslav and Serbian state, coupled with an

increasing polarization of Serb-Albanian relations in the past decade, has created a degreeof unity and identity among Albanians that was directed against the country to which they

involuntarily belonged. With the end of Serbian influence in Kosovo, and the elimination

of a Serbian threat to the territory, the Albanian political spectrum, and some of the main

markers of identity, have to reorient themselves away from Belgrade. Just as Serbs from

Kosovo looked to Belgrade for support, Albanians saw in Belgrade the main opponent.

As a result, Belgrade was the prism through which the two communities viewed each

other. With the political center of Serbia no longer exercising any direct influence on

Kosovo, the relations between and within both communities will have to reorient them-

selves. While the minority status of Serbs in Kosovo will make ethnicity an important fea-ture for this population group, the strong majority of the Albanian community will be

less determined by ethnicity and rather by other social and political differences within the

Albanian population. A multiethnic Kosovo thus reduces the possible differences between

Albanians and establishes a majority-minority dichotomy, which is easily disadvantageous

for the minority due to its small size. In the following sections, we shall see how the con-

cept of multiethnicity was reflected in the institutional design of Kosovo.

2. Rambouillet

The Rambouillet proposal, negotiated in Paris in February and March 1999, is one among

many examples of the international community attempting to chart an agreement to end

a conflict between ethno-nationalist leaders in the former Yugoslavia while providing a


12 Veton Surroi, Interview: Building a New Future, IWPR Balkan Crisis Report, Feb. 24, 2000.13 Even so, there was reasonable doubt over the democratic legitimacy of the Serb/Yugoslav gov-

erments, given the repeated usage of electoral fraud and voter intimidation. The governmentlegation also included members of all national groups in Kosovo (Roma, Egyptians, Gorani,loyal Albanians, and Turks), whose legitimacy was questionable and their degree of represen-tation doubtful. See also the Serbian counter proposal, which was signed by all these groups andrepresentatives of Serbs from Kosovo, with similarly dubious legitimacy. Agreement for Self-Government in Kosmet, Paris, March 18, 1999.


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particular territory with a new institutional framework. Here the agreement was to be

negotiated between the representative of the state in which Kosovo lies, i.e. Yugoslavia

and Serbia, on one side and the representatives of the minority dominating the province,

i.e. the Albanians, on the other. While the representation of the state easily achieved legit-

imacy, because it was sent to the negotiations by the elected government of that coun-try,13 the representation of the minority proved to be more problematic, due to the absence

of officially-recognized elections within the Albanian community of Kosovo and the polit-

ical developments since the unofficial elections held in Kosovo. Thus, the Albanian del-

egation included others beside elected president Ibrahim Rugova and members of the

Democratic League of Kosova (LDK), the party carrying the most votes in this unofficial

election. The delegation also included members of the Kosovo Liberation Army, as well

as intellectuals, such as Surroi, who had no political or military following.

The constitution took a prominent place within the framework of the Rambouillet

agreement, and it was made Chapter 1 of the agreement.14 The constitution recommendedfor Kosovo is generally more detailed and elaborate than the six-page constitution for

Bosnia. The proposed constitution did not define the people enacting the legal textor

in any other way determine the composition of Kosovo. Generally, the document refrains

from clearly dividing the institutions between Albanians and Serbs. The term used here

is national communities, which avoids ascribing the status of minority or majority

to either of the national groups in Kosovo. While a separate definition of the communi-

ties is avoided in the text, the national communities are defined in connection with the

composition of the assembly. Here the constitution differentiates between [c]ommuni-

ties whose members constitute more than 0.5 percent of the Kosovo population andthose who constitute more than 5 percent.15 Both Serbs and Albanians would belong

to the second group of communities. As opposed to the main challenge in Dayton, which

was to map out the relationship between the groups within their respective entity of pre-

dominance, the challenge of the negotiations at Rambouillet lay in codifying the relations

between the province and the state, Serbia or Yugoslavia.16 Thus, as with previous agree-

ments drafted by international negotiators, the emphasis did not lie with democracy.17

Minority rights, however, did play a more significant role in Kosovo, than they did in Bosnia.

Like the Dayton constitution, the Rambouillet agreement would safeguard human rights accord-

ing to high standards. But this chapter is supplemented by Article VII on NationalCommunities, an article that goes into more detail about the non-territorial rights of the nation-

al groups in Kosovo. Article VII foresees an (undetermined) degree of self-government of the


14 As opposed to Annex 4 in the case of Bosnia.15 Article II, 1, Constitution, Interim Agreement for Peace and Self-Government in Kosovo, Feb. 23,

1999.16 The status of Kosovo is left ambivalent to the extent that it is not possible to determine clearly

whether the province is autonomous within Serbia or Yugoslavia.17 The American statements relating to Rambouillet emphasize Democratic Self-Government with-

out elaborating on the problems of institutionalizing a multiethnic democratic society. The onlydetail is the implementation of elections by the OSCE. See Understanding the Rambouillet

Accords, Fact sheet released by the Bureau of European Affairs, U.S. Department of State,Washington,DC, March 1, 1999.


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national communities and democratic elections with the group. In addition, it establishes the

right to have bilingual official signs, to set up educational institutions, to use national symbols,

to preserve religious and cultural sites, and to recognize a separate family law.18

Thus, the Rambouillet proposal pays greater respect to non-territorial national group

rights. It remains, however, vague on contentious issues, such as the degree of bilingual-ism of Kosovo, especially in education and other spheres of interaction with authorities.

Most of the progress made in Rambouillet should be seen more as confirmation of the

basic approach of the international community to the resolution of the conflict in the for-

mer Yugoslavia: The state of affairs in the area under negotiation is taken as the basis for

finding a solution that would be acceptable to all sides without fundamentally departing

from the status quo. The absence of a territorial division in Kosovo forced the authors of

the agreement to elaborate on the rights of national communities to a larger degree than

in Bosnia, where the multinational society had been replaced during the war with a three-

way division of the state. Robert Hayden argues that the Western approach to Kosovo andBosnia were similar, in as far as they were mostly concerned with preserving the legal

fiction of an independent Bosnia and a Kosovo as part of Yugoslavia: Legal fictions are

often useful devices, and the pretenses that Bosnia has been preserved as a state and that

Kosovo cannot be independent are useful to hide the discomforting truth that, if borders

of the state really cannot be changed, then a population that rejects inclusion with them

either must be expelled or ruled by brute force.19

With the war, and the subsequent international administration of Kosovo without the

participation of Yugoslav authorities, the Rambouillet agreement was reduced to a refer-

ence in UN Security Council Resolution 1244 (1999), which established the UN man-date for the administration of Kosovo. The first year of international administration was

marked by the lack of a clear institutional road map for post-war Kosovo. It was only after

the change of the regime in Belgrade and the first local elections in Kosovo, held in October

2000, that the United Nations Mission in Kosovo (UNMIK) drafted a constitutional frame-

work to establish provisional institutions in the territory.

3. The Constitutional Framework

The Constitutional Framework for Provisional Self-Government in Kosovo, signed into

effect by Special Representative of the Secretary General Hans Haekkerup in May 2001,

provides a structure for the development of the autonomy of Kosovo. The framework also

marks the transition from international administration of the province to domestic gov-

ernance under international supervision. The document represents a significant depar-

ture from the Rambouillet proposal, both in the way it defines relations with Yugoslavia

and in how it governs interethnic relations within Kosovo.

As the agreement is exclusively foreign-imposed, it is neither a reflection of political

consensus within Kosovo between the different national communities, nor even within


18 Article VII, Constitution, Interim Agreement for Peace and Self-Government in Kosovo, Feb. 23, 1999.19 Robert M. Hayden, The State as Legal Fiction. American Proposals for the Constitutional and

Political Status of Kosovo, East European Constitutional Review, Vol. 7, No. 4 (Fall 1998), p. 49.


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either the Albanian or Serb community. As Fatmir Fehmiu observed, the constitutional

framework establishes democracy without people.20 In response to the signing of the

framework, the Yugoslav president, the Serbian prime minister and Kosovo Serb repre-

sentatives said: It is not a good legal basis for protection of rights and interests of ethnic

communities.21 The critique from the Serb side focused on the process in which the frame-work was elaboratedSerbian proposals were ignored while Albanian alterations were

includedand on its provision giving Serbs the status of a minority.22 From the Albanian

side, Hashim Thai criticized the agreement particularly harshly and refused to sign it. The

other two main political figures in Kosovo, Rugova and Ramus Haradinaj, also had objec-

tions to the framework, because it did not prescribe a path towards independence.23

Like the Rambouillet proposal for a Kosovo constitution, the framework avoids the

use of the term majority or minority, as making these definitions would, in part, sug-

gest the final status of Kosovo. If Serbs were officially a minority, it would suggest that

Kosovo is not part of Yugoslavia. If Albanians were described as a minority, it wouldrefer to their position within the territory of Yugoslavia, not Kosovo. In order to avoid the

minefield of implying the final status of the territoryand the inherent problems of ascrib-

ing the status of minorities in the former Yugoslaviathe term communities is adopt-

ed and refers to all ethnic and religious communities in Kosovo.24

In a departure from the former Yugoslav constitution, and the constitutions of most

post-Yugoslav states, the constitutional frameworks preamble speaks of the people of

Kosovo, suggesting that the people of Kosovo stand above the communities. The term

people in English is ambiguous in as far it can connote both an ethnically defined com-

munity or a civic nation of the community of citizens. In fact, the conventional term forthe nations of Yugoslavia in the constitution of Communist Yugoslavia is narod, in

Serbian/Croatian. This word is usually translated as people in English. The Albanian

translation of people, popull, has similarly ambiguous connotations. The more civic

conception of the term is emphasized in the Serbian working version of the constitutional

framework, where the term used is stanovnistva, which would translate into English as

inhabitants, rather than people.25 The usage of the term inhabitants was criticized by

some Kosovo Albanian scholars as being too inclusive.26 In fact, the term people was

chosen in order to avoid a narrow ethnic definition of the inhabitants, as expressed in the

constitutional texts of most other countries of the former Yugoslavia,27 while also avoid-


20 Kaci Roundtable, Living within the Framework, Kosova and Balkan Observer, Vol. 1, No. 2,August 2001, p. 95.

21 Serbia Info, May 19, 2001.22 Umstrittenes UN-Statut fr Kosovo, Neue Zricher Zeitung, May 18, 2001.23 Kosovalive, May 15, 2001.24 Constitutional Framework for Provisional Self-Government in Kosovo, chapter/section 4.1.25 This term carries its own baggage, as the citizens exceed the inhabitants of Kosovo, taking into

account that a large number of Serbs and Roma from Kosovo no longer inhabit the province.26 Kaci Roundtable, Living within the Framework, Kosova and Balkan Observer, Vol. 1, No. 2,

August 2001, p. 95.27 See Robert Hayden, Blueprints for a House Divided. The Constitutional Logic of the Yugoslav Conflicts,

Ann Arbour: University of Michigan Press, 1999.


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ing the term citizen, as this word would imply a Kosovo-specific citizenship, suggest-

ing a permanent separation from Yugoslavia/Serbia.

3.1. The Institutions of Kosovo

Despite the controversy surrounding the framework, the document provides for domes-

tic institutions, thus reducing the degree of international involvement in the day-to-day

running of the province and allowing for Kosovo-wide elections. These elections would

not have been possible without the existence of the clear institutional structure provided

for in the constitutional framework.

The constitutional framework accomplishes three tasks: establishing institutions, set-

ting the powers of these institutions, and defining group rights and representation.

The institutions foreseen in the quasi-constitution resemble the Rambouillet propos-al at first glance, with a similar presidency, parliament, and government. But the powers

and election procedures described in the constitutional framework differ greatly from the

arrangement proposed at Rambouillet.

The assembly and the government both have guaranteed minority representation. In

the assembly, 10 seats are reserved for the Serb community while an additional 10 seats

represent other communities (four Roma, three Bosniaks, two Turks, and one Gorani).

In addition, the minorities can compete for the remaining 100 seats in the assembly.28

In the seven-member presidency of the assembly, one seat is reserved for a Serb and

one for a representative of a different minority. In fact, the presidency of parliament is theonly institution where consensus-based decisions are foreseen, because it grants Serbs

and other minorities a limited degree of veto power. The presidency has to attempt to

find a consensus among its seven members in all areas. In most areas, it is allowed to take

a majority vote if no agreement can be established.29 The consensus must be preserved

in cases where at least six minority members of parliament object to a law or regulation

on the grounds that it violates the vital interests of a community.30 In such cases, the pres-

idency shall suggest a consensus-based proposal for resolving the dispute within five

days.31 If this consensus-based mechanisms fails, a new body, consisting of a member

designated from those objecting to the law, a member from the sponsors of the law, anda delegate of the special representative of the secretary general must propose within five

days to either adopt the law as planned, reject the law, or amend the law.32While the

final vote is left to the assembly, the minority who fears that their vital interest is adverse-

ly affected can start the procedure anew, thus possibly delaying a law indefinitely.33

Although this power does not constitute an open veto right, the ability of minorities to

block and delay legislation and regulations does constitute a key component of the legal


28 Constitutional Framework for Provisional Self-Government in Kosovo, chapter/section 9.1.3.

29 Ibid., chapter/section 9.1.29.30 Ibid., chapter/section 9.1.39.31 Ibid., chapter/section 9.1.40.32 Ibid., chapter/section 9.1.41.33 Ibid., chapter/section 9.1.42.


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system. How effective this tool is for the protection of minority interests can only be seen

in practice. If minorities continue to block laws through the above-described mechanism,

because they feel their interests are not adequately protected, they might run the risk of

being criticized by the international community. As result, minorities might be reluctant

to use the process in order to block legislation.

Figure 1: The Institutional System of Kosovo

All other institutional mechanisms in the constitutional framework are limited, to ensure

representation of minorities rather than guaranteed participation in decision-making.

Every committee of the assembly, for example, has to have at least one co-chair from a

minority.34 If the government consists of less than 12 ministers, it must include one Serb

and one other minority member; if there are 12 or more ministers, an additional minor-

ity member must be included.35

The president is elected by the assembly for three years. The president must be elect-

ed by a two-thirds majority of the assemblyin other words 80 deputies. If no candidatecan secure such a wide majority in two rounds, the president can be elected by a simple

majority.36 The broad support required for the president in the first rounds can give minor-

ity deputies a key role in electing the president. This voting mechanism does not, howev-

er, constitute a veto-right for the minority. As minority representation is limited to 20 seats,

or one sixth of the seatsand considering the population distribution, minorities cannot

expect to win more than an additional 10 percent of the seats in free contestthe minori-

ties would not meet the threshold to block the election in the first two rounds. Besides,

the fact that the president can eventually be elected by simple majority in absence of broad

support further weakens any possibility for minorities to determine the president.


34 Ibid., chapter/section 9.1.22.35 Ibid., chapter/section 9.3.5.36 Ibid., chapter/section 9.2.8.

President of Kosovo

Elects

Reserved Seats for Serbs (10)and other minorities (10)

Proposes Prime MinisterElects (2/3 majorityor 1/2 after 3 rounds)

Presidency of

Parliament (7), 1 Serb,1 other minority

Government of Kosovo,

1 Serb, 1 other minoritymember (minimum)

Confirms

Parliament of Kosovo

Seats open for all parties (100)


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The parliamentary election of the president, and this officials relatively short term, tend

to weaken the presidential system, which is usually more powerful in the former Yugoslavia.

Furthermore, the competencies of the president are largely limited to representation, even

in external relations.37 The departure from the strong presidential system in Kosovo can

be seen as beneficial in terms of democratic development in generalbearing the negativerecord of authoritarian presidents in the former Yugoslavia in mind. The weaker presiden-

cy is also beneficial for a system seeking to represent diverse ethnicities. As Arend Lijphart

has noted, the presidential system tends to adversely effect diverse societies, as the collec-

tion of power and representation concentrated in one person usually precludes the kind of

representation of ethnic diversity that might be possible with a cabinet of ministers.38

The main institutions of Kosovo, as outlined, guarantee minority representation, but

do not enable minorities to exert a veto at any level. Furthermore, no specific institutions

have been established for ethnic representation. There is no second chamber of parlia-

ment for ethnicitiesas in Bosniaand no committee for inter-community relationsas in Macedonia. Thus, despite the usage of the term communities instead of minori-

ties, the institutions of Kosovo are not power-sharing institutions. Instead of guaranteeing

power sharing, the system merely provides for guaranteed minority representation at a

high levelespecially among the cabinet of ministers.

Aside from lacking a power-sharing arrangement, the framework also lacks provisions

for any degree of local autonomy, whether based on ethnicity or any other criteria. The

absence of territorial arrangements in the constitutional framework reflect the concerns

of the international community, and the Albanian political elite, that there may be terri-

torialization of minority-majority relations. This attitude is exemplified by the harsh andrash condemnation of any Serb proposal for cantonization of a division of Kosovo, a topic

that will be discussed below. At the same time, a territorialization of ethnicity has already

taken place de facto with the creation of Serb enclaves in northern Kosovo and in small

patches of territory throughout Kosovo. The refusal to recognize these enclaves is based

in part on the international communitys desire that the enclaves do not become perma-

nent.39 It could be argued that the constitutional frameworks recognition of these enclaves

is not necessary, because political realities ensure their existence.

The absence of formal territorial autonomy is compensated with a limited degree of

non-territorial autonomy, which is granted to the national minorities. In addition to a cat-alogue of rightsranging from education and the free usage of the language with public

authorities to use of symbols and mediathe communities are permitted to establish

schools for members of the community, which may be funded by the provinces author-

ities.40 The fact that the role of a communitys self-government is limited, both in terms

of the legal framework and in terms of financing, gives minorities the possibility to gen-


37 Constitutional Framework for Provisional Self-Government in Kosovo, chapter/section 9.2.4.38 Arend Lijphart, Democracy in Plural Societies. A Comparative Exploration, New Haven-London:

Yale University Press, 1977, pp. 147-150.39 On one side, the creation of the enclaves was conditioned by the persecution of Serbs by some

Albanians after the end of the war. On the other side, the enclaves reflect in part the possibilityof separation of Serb communities from Kosovo, especially in the north.

40 Constitutional Framework for Provisional Self-Government in Kosovo, chapter/section 4.4.j.


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erate a certain degree of autonomy in their affairs, without, however, providing for the

establishment of community-based institutions.

3.2. The Role of Yugoslavia in Kosovo

A major difference between the current framework and the Rambouillet proposal is the

relationship with Yugoslavia. Whereas the Rambouillet proposal outlined, in detail, the

powers federal authorities would have had in Kosovo, the constitutional framework ignores

the Yugoslav authorities. While referring to the June 10, 1999 UN Security Council

Resolution 1244, which reaffirms Yugoslav sovereignty over Kosovo, the framework pro-

vides for no participation of Yugoslav or Serb organs in the administration of Kosovo.

Even the competencies of the Kosovo institutions are defined as self-standingand not

related to Serbia or Yugoslavia.Yugoslav authorities were granted a limited role in Kosovo, but only through an agree-

ment,41 made shortly before the Nov. 5, 2001 elections, between Haekkerup, the special

representative to the secretary general, and Nebojsa ovi, the president of the

Coordinating Centre for Kosovo and Metohija for the Serbian and Yugoslav governments.42

The agreement was met with considerable opposition from Kosovo Albanian political par-

ties, who were not consulted in its drafting and who opposed any role given to Yugoslav

or Serbian authorities in the governance of Kosovo.43 The agreement, signed in an effort

to ensure the participation of Serb voters in the elections, limits the role of the Yugoslav

government to participation in a coordinating working group, together with the Kosovoadministration, in areas of mutual interest and common concern.44 These fields are

described as mostly including missing persons, the judiciary and the police. Probably the

most far-reaching element of the document is the commitment on behalf of UNMIK to

make the Kosovo Serb educational structures adequately compatible with the Serbian

education system and labor market requirements.45

Due to the diminished size of the Serbian community in Kosovo, Belgrade continues to

be seen as an important protector of Serb interests in the territory. Especially after Slobodan

Milosevis ouster, and Serbia and Yugoslavias success in regaining international respectabil-

ity, Kosovo Serb politicians pinned their hopes on Belgrade.46The new Yugoslav authorities took a stronger role than the Milosevi regime did in coop-

erating with post-war Serb elites in Kosovo. Kosovo Serb politicians like Oliver Ivanovi, Rada


41 The text was officially entitled document, giving it a less contractual nature than an agreementor treaty.

42 See the text of the agreement UNMIKFRY Common Document, Belgrade, May 11, 2001, avail-able at: http://www.serbia.sr.gov.yu/news/2001-11/14/320901.html.

43 All the media and political parties in Kosovo rejected the agreement and accused the special rep-

resentative to the secretary general of breaking both the constitutional framework and the UNResolution 1244. See UNMIK Headlines, Nov. 6, 2001.

44 Art. 6, UNMIKFRY Common Document, Belgrade, Nov. 5, 2001.45 UNMIK-FRY Common Document, Belgrade, Nov. 5, 2001.46 ICG, Reaction in Kosovo to Kostunicas Victory, Balkans Briefing, Oct. 10, 2001.


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Trajkovi, and Momilo Trajkovi were consulted by the new Serbian authorities. But the

constitutional framework provided the Yugoslav and Serbian authorities with no formal role

in the territory. Although the framework does not address the issue of final status, it also does

not relate Kosovo institutions in any way to Yugoslav or Serbian institutions. The formal lim-

itation to Yugoslavias role in regard to the province only de-facto enshrined the political real-ity, but at the same time, it caused opposition both among Yugoslav authorities and the

Serbian minority in Kosovo.47

The key obstacle to granting the Yugoslav or Serbian authorities any role in Kosovo after

the war, irrespective of the government, has been the resistance of the Albanian commu-

nity. As a result of this opposition, Yugoslav institutions could only become active in Serb

enclaves in Kosovo, creating de-facto parallel institutions, which heightened the fear of a

division of Kosovo. At the same time, the Kosovo Serb community has been unable to

define a coherent political program of its own, independently from Belgrade. The divisions

among Kosovo Serbs are partly a reflection of different interests defined by the location ofthe enclaves, whether contiguous or separate from Serbia proper. In addition, the enclave-

based constituency has prevented the emergence of a Kosovo-wide platform of Serbs. And

the absence of any democratic election among Serbs in Kosovo before and after the war

has prevented a clear evaluation of political leaders who could represent the remnants of

the Serb community in Kosovo, not to mention Serb refugees outside the territory.

To a large degree, the political dependence of Kosovo Serbs on Serbian authorities is a

continuation of the political dynamics before the war, when Serbs struggled to define a dis-

tinct political agenda that would take into account local concerns of Kosovo versus those of

the rest of the country. The few attempts to create a Kosovo Serb platform, such as the SerbianResistance Movement of Momilo Trajkovi or the activities of Bishop Artemije, did not suc-

ceed in uniting the Kosovo Serb population sufficiently before the war. The complex layers

of party and personal interests among the political elite of Kosovo Serbs has meant that power-

struggles between supporters of the Democratic Opposition of Serbia (DOS) emerged much

earlier here than in Serbia proper. In the run-up to the elections, the split between political

representatives of Kosovo Serbs was further widened by the decision to boycott the elections

by some prominent representatives, such as Momilo Trajkovi or Marko Jaksi, a deputy

chairman of Vojislav Kostunicas Democratic Party of Serbia. The permanent negotiations

with the international administration over the degree of participation and the hostile envi-ronment furthered the tense political atmosphere within Kosovo Serb politics. With the begin-

ning of direct discussion between Serbia and the Kosovo Albanian leadership, fears have

emerged anew among Kosovo Serb politicians of being excluded from the political process.

3.3. Lessons Learned from Elections

The Nov. 17, 2001 elections, which were the second democratic elections in Kosovo and

the first free elections to any Kosovo-wide institutions, highlighted the difficulties of fill-ing the constitutional framework with a working arrangement. The elections confirmed


47 Tanjug, May 23, 2001. The Serbian parliament in fact formally rejected the framework, AFP,June 1, 2001.


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the dominance of the Democratic League of Kosovo under the leadership of Rugova, while

at the same time providing substantial representation to minorities, especially Serbs. Due

to the relatively moderate turnout among Albanians, and a higher than expected turnout

among Serbs, especially in out-of Kosovo voting, the Serbian coalition Povratak (Return)

emerged as the third-largest political force in parliament, with 22 of 120 available seats.Other minorities, including Roma, Turks, and Bosniaks, succeeded in gaining three seats

in addition to the 10 seats reserved for non-Serb minorities. After the vote, minorities

filled 35 of 120 seats in the parliament, making them a substantial force, with just less

than one third of the seats. As minorities represent around 10 percent of the total popu-

lation of Kosovo, the outcome of the elections constitutes a significant over-representa-

tion of minorities in parliament.48While this over-representation is probably necessary

to ensure inclusion of minorities in political decision-making processes, the situation is

likely to create resentment over the perceived privileged position of minorities, especial-

ly the Serbian minority. Furthermore, the electoral rule providing for parties and candi-dates to identify themselves as representing a particular community to run for the reserved

seats prevented the emergence of any cross-ethnic parties.49

Table 1: Results of the Election for the Kosovo Parliament, Nov. 16, 2001.50

* First number reflects the seats gained through the votes cast, while the second number representsthe seats granted in accordance with the regulation reserving seats for minority representatives.


PartyNo. Percentage No.

of Votes of Votes of Seats

Democratic League of Kosovo (LDK) 359,851 45.65 47

Democratic Party of Kosovo (PDK) 202,622 25.70 26

Coalition Povratak, Serbs 89,388 11.34 12/10*

Alliance for the Future of Kosovo (AAK) 61,688 7.83 8

Coaltion Vatan, Bosniaks, Gorani 9,030 1.15 1/3*

National Liberation Movement of Kosovo (LKK) 8,725 1.11 1

Democratic Party of the Turks of Kosovo (KDTP), Turks 7,879 1.00 1/2*

Christian Democratic Party of Kosovo (PSHDK) 7,701 0.98 1

Justice Party (PD) 4,504 0.57 1

National Movement of Kosovo (LPK) 4,404 0.56 1

Democratic Initiative of Kosovo (IRDK) 3,976 0.50 1/1*Albanian Ashkali Democratic Party (PDASHK), Ashkali,

Roma, Egyptians3,411 0.43 -/2*

Bosniak Party of Democratic Action of Kosovo (BSDAK),

Bosniaks2,906 0.37 -/1*

United Roma Party of Kosovo (PREBK), Roma 2,717 0.34 -/1*

Total 120

48 Lino Sciarra, Imposing an Electoral System, Occasional Paper, Europe and the BalkansInternational Network, 2002.

49 On this see Leon Malzogu, Illir Dugolli, Reforming the Electoral System of Kosova, Kipred, Pristina2003.

50 Source: http://www.osce.org/kosovo/elections/results/index.php3.


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Neither minorities nor the Albanian parties form homogenous blocs. Despite the deter-

mination of all Albanian parties to lead Kosovo into independence, lasting coalitions are

unlikely to emerge due to animosities between the heads of the three largest parties, Rugova

of the LDK, Thai of the PDK and Ramus Haradinaj of the AAK. A formal cooperation

agreement between the Serbian coalition Povratak and the LDK appears difficult to main-tain, given the two parties fundamental disagreement over the final status of Kosovo

and the criticism leveled by other Albanian parties against the LDK for cooperating with

the Serbian coalition.51

Figure 2: Seats in the First Kosovo Parliament

The institutional system of minority inclusion, as set-up by the constitutional framework,

is the reflection of an ideal development in interethnic relations. But the real situation is

far from ideal. Both the participation of Serbs and other minorities in the presidency ofthe Kosovo parliament and the guaranteed control of ministries for minorities are unlike-

ly to translate into cooperation between the majority and the minority in the political sys-

tem of Kosovo. At the same time, the outcome of the first elections provided no party a

sufficient majority, so that there may be a need for a certain degree of informal cross-eth-

nic cooperation. While this possible cooperation would not constitute a power-sharing

arrangement in the strict sense, it would provide for a means of overcoming the deep

political division between the leaders of the Serbian minority and the Albanian majority.

As a result, the outcome of the elections has been described by many observers as being

ideal for creating incentives for cooperation.52


51 Wolf Oschlies, Wahlen im Kosovo: Ungewiheiten nach dem Urnengang, SWP Brennpunkt,Dec. 2, 2001, available at: http://www.swp-berlin.org/produkte/brennpunkte/parlkos1.htm.

52 Ibid.

LDK (47)

PDK (26)

Povratak (22)

AAK (8)

Vatan (4)

KDTP (3)

Others (10)

Vatan

KDTP

AAK

Povratak

PDK

LDK

Others


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The several-month-long dispute between Albanian parties about the composition of

the governmentand the failure of Rugova to achieve a swift election as president of

Kosovopointed to the deep divisions in Kosovo politics. The stalemate was only bro-

ken through the active involvement of Special Representative to the Secretary General

Michael Steiner, who assumed office in early 2002. The government, as constituted inMarch 2002, was composed of all main parties, including the Povratak Serb coalition and

parties of other minorities. A member of the Bosniak grouping Vatan took the office of

minister of health, and one Serb was put in charge of the Ministry of Agriculture, Forestry,

and Rural Development. In addition, two special positions were given to Serbs: the inter-

ministerial coordinator for returns and ethnic communities and a high counselor to the

UNMIK on refugee return.53 The overall delay in creating the government and obtaining

full participation of the Serb community lasted over half a year. Meanwhile, the Serbian

government has sought to create ties with Serbian participants in Kosovos institutions by

asking candidates to sign a commitment to the defense of Serbian national interests andto follow the decisions of the Serbian government and the coordination center of the

Yugoslav and Serbian government for Kosovo.54

The aftermath of the first elections in Kosovo demonstrated that Kosovo is a divided

society. The divisions run not only between the Serb and Albanian communities, but also

among the Albanian political elite. Without the full weight of the international commu-

nity in Kosovo, there was a real danger that the institutional set-up established in the con-

stitutional framework might not even begin working. The role of the international com-

munity, primarily represented by the special representative to the secretary general, has

been that of an arbiter, but also that of a decision-maker. The international communitystill maintains a number of spheres of competencies, including defense and foreign affairs,

which, for obvious reasons, are beyond the scope of the Kosovo government.

4. Alternatives

Because the gap between the communities of Kosovo is so wide that it does not allow for

a meaningful debate on the internal organization of the provincenot to mention its rela-

tionship with Yugoslaviathe constitutional framework has not been the result of a domes-tic dialogue.55 The ultimate, if at times grudging, acceptance of the constitutional frame-

work by all parties is not only due to the recognition that the international actors dominate

the decision-making process, but also due to the lack of any alternative proposal that could


53 Wolf Oschlies, Ein Kompromi, bei dem alle verlieren...? SWP Brennpunkt, Feb. 5, 2002;Povratak selects candidates for Kosovo government, Serbian Government News Service, May

21, 2002.54 Povratak selects candidates for Kosovo government, Serbian Government News Service, May

21, 2002.55 In addition to local parties, the international community also has avoided a comprehensive pub-

lic assessment of alternatives in structuring the institutional set-up of the province, as they areoften intrinsically linked to the final status. For an example of an assessment of alternatives, seethe International Crisis Group, A Kosovo Roadmap. Assessing the Final Status, Feb. 1, 2002.


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satisfy all communities, both ethnic and political. The main political alternatives of the

Albanian parties focus on the status of Kosovo at largeor the full independence of Kosovo.

On the Yugoslav/Serbian side, only a few alternatives have been offered. Besides their insis-

tence of maintaining Kosovo within the framework of Yugoslavia, Serbs offer few visions

for how Kosovo can exist within Yugoslavia. For example, if Kosovo were to be part ofYugoslavia beyond the symbolic level, it would be inconceivable to not have a federal gov-

ernment that includes significant Kosovo Albanian participationespecially considering

that Albanians constitute approximately 20 percent of the population of Yugoslavia. Yet it

is hard to imagine the majority of the Serbian political elite accepting Kosovo Albanians as

equal political actors, who would be involved in the governance of the whole country.

The mixture of declaratory claims to Kosovo, without any readiness to make over-

tures towards Kosovo Albanians, de facto reduced the claim to Kosovo by most Serbian

politicians to a claim over what is Serbian in Kosovo. This selective claim to Kosovo was

probably most appropriately transformed into a (short-lived) political platform byovi,who publicly contemplated the division of Kosovo into a Serbian and an Albanian sec-

tion.56 He suggested creating two entities in Kosovo within Yugoslavia: I support Kosovo

and Metohija within the framework of FRY and the Republic of Serbia, but formed on

the basis of two entities which for a long number of years have been in conflicta con-

flict of two realistic rights. One is the Serb historical right in this region, the other is the

Albanian ethnic right. Between these two rights, a compromise must be found. If a com-

promise is not found, there will be war and I think that there have already been enough

of those. All those who just talk and criticize remind me of when I first proposed the

plan for the south of Serbia.57One can distinguish two types of proposals for partitioning Kosovo. Some plans fore-

saw an outright and total partitioning, which would lead to independence for the

Albanian part of the province, while the Serbian part would remain with

Serbia/Yugoslavia. Another suggestion envisaged not a total partition, but rather a high

degree of autonomy for the Albanian part of Kosovo, while the Serbian part would join

Serbia, or maintain closer links with Belgrade. Despite the reoccurring debates on the

partition, this plan never enjoyed widespread support and can be seen as a reflection

of the uncertainty in political and intellectual circles in Serbia on how to resolve the

question of Kosovo. In opinion polls carried out throughout the 1990s, partition neverreceived broad popular support. Only after the loss of Kosovo in 1999, and the cre-

ation of Serbian enclaves, did support for this long-term solution increase to a fifth or

a quarter of the population.58

A broad debate on partitioning the province began after a speech by Aleksandar Despi,

president of the Serbian Academy for Arts and Sciences, in 1996. Several years earlier,


56 FreeB92 Vesti, May 18, 2001.57 INET, May 19, 2001.58 Sreko Mihailovi, Virtuelna legitimacija tree Jugoslavije, Zoran Dj. Slavujevi, Sreko

Mihailovi, Dva ogleda o legitimitetu. Javno mnenje o legitimitetu tree Jugoslavije, Belgrade: Institutedrustvenih nauka, Friedrich Ebert Stiftung, 1999, p. 157; Mirjana Vasovic, Vrednosne i ide-oloske osnove aktivizma, Sreko Mihailovi, et al., Politicka ne-raspolozenja gradjana Srbije,Belgrade: CPS, 2000, p. 20., Vreme, Nov. 16, 2000.


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Dobrica osi, the Serbian writer and first president of the Federal Republic of Yugoslavia,

had already made a similar proposal.59 The reactions of the Serbian elite to the different

plans for partition were mostly negative. The plans for partitioning Kosovo reflect the

conviction of Serb intellectuals and some politicians that any coexistence of Albanians

and Serbs in one country is impossible. Furthermore, these plans are a result of the deep-seated fear of Albanian population growth and the apprehension over any potential numer-

ical domination of Albanians over Serbs, even if it might be in the distant future. Although

the plan for partitioning Kosovoas proposed by oviwas criticized by a significant

portion of the ruling DOS coalition, it also gathered some support. Among others, Rada

Trajkovi, a Serb observer in the Interim Administrative Council for Kosovo at the time,

and Predrag Simi, foreign policy advisor to former Yugoslav president Kostunica, wel-

comed the proposal.60 The outright partition of Kosovo remains, however, unrealistic

given Albanian and international resistance to the idea.

Similar to the plan to partition the territory is a plan to cantonize Kosovo, which wasfirst proposed in 1998 by the Serbian Resistance Movement, a political grouping of Kosovo

Serbs. The main author of the project was Dusan Batakovi, historian and current Yugoslav

ambassador to Greece. At the heart of the proposallaunched by representatives of the

Serbian community in Kosovo, lead by Momilo Trajkovilies the idea of dividing the

province into relatively small homogenous territorial units. The proposed cantonization

can be located in between plans to partition Kosovo and plans for decentralization of

Serbia, as proposed by the Democratic Party of Serbia. The creation of the Interim

Administrative Council and the inclusion of a Serb representative supporting cantoniza-

tion elevated the plan from a marginal proposal to an important, yet controversial, alter-native in post-war institution building. The plan was proposed again at the Kosovo

Transitional Council in August 1999 by Trajkovi. He suggested the creation of the five

cantons under joint UN-Serbian administration.61 The suggestion of cantonization itself,

as well as the removal from international control, triggered an outright refusal on the side

of Bernhard Kouchner as head of UNMIK. Kouchner alternatively suggested a regroup-

ing of Serbs under international protection, which would emphasize the non-permanent

nature of any territorial division of Kosovo along ethnic lines. That proposal was meet by

strong resistance from the Albanian side.62

The creation of cantons embodies a number of risks. A territorial division betweennational communities might lead to a long-term partition of the province, especially when

some cantons are contiguous to Serbia proper. Additionally, even though some of these

cantons have greater wealth than the rest of Kosovo, the economic situation in most can-

tons would be desperate: Isolated, mostly rural areas with little freedom of movement are

not the ideal tool to provide for a long-term stabilization of Serb-Albanian relations. In

addition, the formalization of enclaves will further speed up forcible population transfers

between the two communities, will prevent the return of refugees and will lead to an


59 Radivoj Cvetianin, A Storm over Serene Parting,AIM, June 12, 1996; Dragos Ivanovi, Drzavnakriza Srbije, Republika, 16, April 30, 1995, p. 6.

60 Vreme, May 25, 2001; Inet, May 20, 2001.61 Glas Javnosti, Aug. 28, 1999.62 Glas Javnosti, Aug. 28, 1999; Blic, Aug. 28, 1999.


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increased homogenization of even larger parts of Kosovo. The establishment of long-term

ethnic enclaves, which are not viable without a firm and close integration into the larger

entity, will antagonize the Albanian community, who fear partition, while limiting the

Serbian community to non-viable, isolated areas.

Thus, a cursory glance at alternatives to the current institutional set-up in Kosovo high-light the lack of acceptable proposals that could create long-term stabilization and ade-

quately address the needs and demands of both the minority and the majority. At the

same time, there is a clear need to grant Serbs in Kosovo a considerable degree of auton-

omy, as the current political and social climate does not allow for their treatment accord-

ing to basic human rights standards by the majority.63

5. Conclusions

The current institutional set-up of Kosovo, established only slightly less than two years

after the end of the war, marks a distinct departure from earlier experiments by the inter-

national community in administering the territory of the former Yugoslavia. From Mostar,

to Eastern Slavonia, to Dayton-Bosnia, to Macedonia, the international community has

been engaged in constructing institutions and legal frameworks for the governance of ter-

ritories affected by inter-communal strife. While the record is mixed, and the situation

presents obvious difficulties, the international communitys approach has had a certain

degree of development.

Unlike in Bosnia, where the institutions were set up by the peace agreement and elec-tions followed within nine months of the end of the war, in Kosovo the institutions were

not drafted in negotiations, but were entirely designed by the international community.

Furthermore, the Kosovo elections were carried out with a considerable waiting period

after the end of the war, nearly two-and-a-half years later. The different approach to insti-

tution building in Kosovo may be beneficial. It is preferable to build institutions that do

not reflect the particular interest of the parties to the conflict, those who were originally

responsible for dismantling the pre-war institutional order. The new institutions should

not enshrine the fiefdoms established during the conflict by the warring parties. And later

elections may be better, because they can put some distance to the war. This allows par-ticipants to make choices that they might not be able to make in an immediate post-war

setting, were considerable inter-ethnic tensions are pervasive.

The institutional framework of Kosovo (and of Macedonia) suggests a clear departure

from consociation and territorial autonomy as the institutional cure for ethno-political

conflict. The agreements implemented in Krajina and Bosniaas well as the more local

arrangements, such as Mostar or the Muslim-Croat Federationhave consistently com-

bined recognition of the territorial separation of communities that was created by the con-

flict with a complex system of power-sharing within a relatively narrow level of central

power. The current arrangement in Kosovo explicitly denies recognition of the de-facto


63 Alexandros Yannis, Kosovo under International Administration. An Unfinished Conflict, Athens:ELIAMEP & PSIS, 2001, pp. 67-68.


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territorialization of ethnic communities within Kosovo64 and does not institutionalize a

consociation-based system of democracy in the narrow sense. In fact, the current arrange-

ment for Kosovo is in these respects reminiscent of the framework peace agreement for

Macedonia from August 2001.65While Kosovo is a clear departure from the truly diverse

society of Bosniawhere there are three constituent people and no clear majority-minor-ity relationship throughout its territorythe system for Kosovo could be seen as a lesson

from the failure to establish a functional central government in Bosnia.

It is clearly too early to judge whether the political system prescribed for Kosovo is

more successful than the one imposed on Bosnia. Nevertheless, one can note that the sys-

tem proposed for both seem to be in a strangely reversed order. While Bosniawithout

a long history of strained interethnic relations before the war and a high degree of inter-

marriages and cross-ethnic tiesreceived a rigid system that emphasizes the ethnic divi-

sions born in the course of the war, Kosovos system does not enshrine ethnicity to the

same degree. And yet, inter-ethnic relations in Kosovo are considerably less likely toimprove significantly, due the history of strained relations between the Serbian and

Albanian communities.

Before the institutions of ethnic diversity can be filled with meaning, there is a need

to establish respect for the human rights of the Serbian communities in Kosovo. The key

aim of the political system of Kosovo is to allow for the emergence of a democratic Albanian

political elite, which is capable of running the province autonomously. The inclusion of

minorities is considerably less important, given the current numberseven if one con-

siders the pre-war census. Multiethnicity, not part of the experience of interethnic rela-

tions in Kosovos past, is unlikely to emerge as a key characteristic of the society in thefuture. The only possibly space for interethnic cooperation in Kosovo lies at the local level,

in areas where a degree of diversity might exist. The record of the past 10 years, howev-

er, does not suggest that, even on a local level, any degree of substantial cooperation is

likely to emerge in the near future.


64 This is especially the case in Mitrovica, where repeated demands by the Serbian political lead-ership of Northern Mitrovica for a separate commune were denied by the international com-munity; see International Crisis Group, UNMIKs Kosovo Albatross: Tackling Division inMitrovica, June 3, 2002.

65 Framework Agreement (Macedonia), Aug. 13, 2001.

florian bieber, the legal framework for post-war kosovo and the myth of multiethnicity

Documents