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You are here: Home >> Politics >> Challenges and the Unexpectedness. By Agim Zogaj PhD, University of Prishtina, Kosovo
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10.06.2009 Challenges and the Unexpectedness. By Agim Zogaj PhD, University of Prishtina, Kosovo
EULEX in Kosovo
(gm) For ten years, UNMIK were the international administrators in Kosovo and it appears that during those years, the international concerns did not realise that they should have had mechanisms that would ensure democracy [after they left]. On the other hand, Marti Ahtisaari’s agreement foresees uncontrolled executive powers for the International Civil Representative and for the chief of EULEX. In the Constitutional Framework for Provisional Self-government, it was clearly stressed that, “regardless of what powers UNMIK transferred to Kosovar institutions – from the police to border control- [they would] always remain[ed] subject to the full and final authority of the SRSG.” So, if the approved laws by the Kosovar assembly had to come to pass, then those laws would have had to be accepted by the SRSG.
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However, from the earliest days of EULEX’ operations in Kosovo, high level officials from the International Civilian Office, lead by the EU clearly emphasised that the next international mission would not be similar to UNMIK. Thus, in December 2006, a distinguished European diplomat, Torbjorn Sohlstrom, announced, “the first is that the international community’s engagement will be very different from what it is today, and from what it has been over the past seven years. It will no longer seek to govern Kosovo… and the responsibility to administer the affairs of Kosovo will be the responsibility of the elected representatives...” Then Sohlstrom emphasised again that “the role of the international community will be: to assist, in a multitude of ways, [and] to ensure that a status settlement is correctly implemented.”
Similarly to Diplomat Sohlstrom, Peter Feith, the Head of the Office of the European Union Special Representative has reaffirmed, “our philosophy is that Kosovo’s government are in control; we are not here to lead, we are here to support and advise” . But if we take a careful look at Ahtisaari’s document, we will find there that it gives powers and broad privileges to the Head of the International Civilian Office in order to ensure that the status agreement is implemented correctly and without obstruction.
Such freedoms will not be limited to only ensuring respect for the rule of law and the effective protection of minorities. This is because the International Civilian Representative, who shall double as the European Union Special Representative, shall be the ultimate supervisory authority over other fields of government, as well as the rule of law, including the judiciary, police, border control, customs and corrective services. The International Civilian Representative has a mandate to assign high level officials to important institutions, e.g. the Auditor-General, international judges and prosecutors, the Director-General of Customs Services, the Director of Tax Administration, the Head of the Treasury, international members of the Board of Directors of the Privatisation Agency of Kosovo as well international members of the Board of Directors of the KTA.
In fact, according to his mandate as the final authority in Kosovo, regarding interpretation of the civilian aspects of this settlement, the International Civil Representative has the right to: “take corrective measures to remedy, as necessary, any actions taken by the Kosovar authorities that the ICR deem to be a breach of this settlement, or seriously undermine the rule of law, or to be otherwise inconsistent with the terms or spirit of the settlement.”
So judging by this, there appears to be a completely separate paradox. Because of the mandate of the ICR, which literally means that an unelected international official retains unmatched powers - he has complete free reign ceded by the assembly of the Republic of Kosovo to expel Kosovar officials (regardless from their positions in the institutions in question), meanwhile, the expelled officials have no rights of redress. This kind of paradox, not only judicial but legal, comes as a result of the fact that when it comes to the limits of power and overseeing mechanisms and overhauling processes, the paragraphs of Ahtisaari’s settlement are evidently inarticulate, confusing and ambiguous.
In the context of the IRC’s extraordinary and unlimited powers, the only international mechanism that has control, overseeing the actions and authority of the IRC is the International Steering Group (ISG). Thus, in future it is expected that Peter Feith, according to the mandate of the IRC, will have to report to the International Steering Group and to act under its instruction. The International Steering Group (which is under significant Russian pressure) was according to the initial agreement in February 2007, expected to include representatives of Germany, France, Italy, Russia, Great Britain, the USA, the European Union, the European Commission and NATO, but the actual make is somewhat different to the one initially proposed. It should be stressed that the self-governing authorities of the Republic of Kosovo are subject to the control, intervention, meddling and probing of an international group, whose structure, rules and procedures are obscured. But even EULEX has far reaching powers and uncontrolled executive freedoms. Just to mention Article 3(b) of the Council Joint Action, which specifically states that EULEX personnel have the authority “as necessary, in consultation with the relevant international civilian authorities in Kosovo, through reversing or annulling operational decisions taken by the competent Kosovar authorities.”
It’s clear that there is no central point of command between the International Civilian Representative and the EULEX mission. This means that in future in Kosovo, even with the EULEX mission, there would be two centres of influence, both with control over international political power and both of them will act according to their mandate, as if they alone are leading Kosovo towards a future in Europe. The paradox is that they both have broad executive powers, they both report to an international body and they will both receive instruction from the same international body, which represents different countries. Is the cooperation and coordination of international bodies and parts of the EULEX mission enough? It is anticipated that: “the Commander of Civil Operations and the Special Representative of the European Union (PSBE) will consult each other as necessary.” Yet, the international presence in Kosovo, even with EULEX will not be an “easy presence,” as was made clear in Brussels.
Therefore, the question is rightly, “how can the self-governing institutions of Kosovo be expected to cope, whilst under such constant pressure?” Meanwhile Ahtisaari anticipated that “...the mandate of the ICR shall be terminated when the International Steering Group determines that Kosovo has implemented the terms of this settlement.” He even took it a step further by stressing that, in his opinion, “...despite the energetic international engagement, Kosovo’s authorities are responsible for implementing the proposed settlement.” Without any doubt there are and will be limitations of all kinds, but Kosovo’s Institutions will all do their best to implement the settlement. Ahtisaari’s plan seems to intentionally place the responsibility to cooperate on both sides - international and local respectively. Although even on this issue, Ahtisaari’s plan has its flaws and is not exactly precise. His plan does not include provisions for the cooperation of Serbia and of Serbian minorities in Kosovo in implementing the settlement. The extent to which the Kosovar Serbs depend on Serbia’s policy is well known. So, even for EULEX there are a lot challenges ahead in leading the Republic of Kosovo towards Europe.
The author is head of the department of political sciences at Pristina University, Kosovo.
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