Constitution as Reconciliation? Exogenous Influences on Post-Conflict Kosovo

“Kosovo is the love child of an international affair. We don’t know who we are. We don’t know what parent to look up to. We are a bastard child.”
– Shkelzen Maliqi, Kosovan Intellectual

On February 17, 2008, Kosovo declared independence from Serbia, nine years after the outbreak of an ethnically driven conflict between Kosovan Albanians and Kosovan Serbs, a massive humanitarian intervention, and two of the largest United Nations and European Union missions seen to date. Following the declaration of independence, Kosovo produced a constitution that was ratified on April 9, 2008 and put into effect on June 15, 2008. The constitution had an internationally-supervised drafting process and, arguably, was predominantly a product of the Comprehensive Proposal for the Kosovo Status Settlement,[1] dated March 26, 2007 and written in large part by U. N. Special Envoy, Marti Ahtisaari.[2]

Championed by internationals and many Albanian Kosovars alike as incredibly “modern,” Kosovo’s constitution provides a consociational government structure that guarantees minority representation and rights, bearing in mind the conflict-ridden past but with a keen eye to a multi-cultural democracy in the future. Often, Kosovo is championed as a success of international intervention: Kosovo is on its way to becoming a country recognized by the United Nations;[3] it has not seen heavy casualties since the initial intervention in 1998; and it has been admitted to organizations like the International Monetary Fund and the World Bank.

Despite such successes four years after independence, Kosovo still retains significant ethnic divisions, particularly in the Kosovan Serbian stronghold of North Mitrovica near the border with Serbia. Such divisions manifest in unofficial self-segregation by ethnicity, antagonism between ethnicities, lack of minority participation in civil society and partisan politics, and, most dishearteningly, violence.  In contrast, Kosovo’s constitution—informed as it is by the international community’s “heightened consensus” and “passion for insuring [that] all people” share in the benefits provided in the Universal Declaration of Human Rights,[4] promises a system based on the cooperation and equal rights of different ethnicities between Serbs, Albanians, and other minorities.  On the ground, however, Kosovo’s community remains divided by contentious ethnic enmity.

The most recent example of the ethnic discord in Kosovo includes the violent outbreaks on the border with Serbia in Mitrovica in August 2011 when Kosovan officials tried to gain control of the border checkpoints.  NATO sent 700 extra troops to the already 6,000 strong Kosovo NATO Force (KFOR).[5]  In addition to this show of force, there was a recent referendum run by Kosovan Serbs in the breakaway region of North Mitrovica, in which 99% of Serbs who voted (constituting 75% of all Serbs living there) voted “No” to the question “Do you accept the institutions of the so-called Republic of Kosovo.”[6] As can be seen, Kosovan Serbs are resistant to recognizing not only the institutions and provisions laid out for them in the Constitution, but all forms of authority and enforcement both international and Kosovan. Considering the ethnic discord in the country, one must question if there are problems of political and governmental structure in the constitution, in addition to problems with the values that are presented in the constitution.

In this paper, I use the experience of Kosovars and their constitution as a case study to question whether a constitution can be a source of reconciliation when it is largely adopted from the international presence in zones of ethnic conflict.  “Reconciliation” is used herein as James L. Gibson defines it: “groups getting along together,” support for human rights, legal universalism, and “eschew[ing] racism and embrac[ing] tolerance.”[7]  I argue that in order for reconciliation or peaceful coexistence to develop in the statebuilding project following ethnic conflict there must be three key factors in the making and execution of constitutions that have been influenced by international peacekeeping, summed up by 1) structure, 2) legitimation and 3) an enforcer/incentivizer.

Firstly, constitutions require a governance structure that reflects the obvious social divisions by giving groups autonomy, but encourages and incentivizes them to work as a whole. This kind of structure theoretically can be provided in a consociational arrangement, where predetermined ethnic or social groups are guaranteed a minimum amount of representation, protection, and power. Consociational democracies are defined in four terms. Usually there is a government with a grand coalition of political leaders from the significant sect of society, a mutual veto to protect vital minority interests, proportionality of representation, and a high degree of autonomy for each group to run its own affairs, so as to avoid feeling oppression from other groups. [8]

Next, constitutions require a legitimation element that binds people to the law and encourages voluntary compliance with it.  I believe that the ethnic nationalism, so divisive in Kosovo, can be superseded by a different legitimating element, such as the Universal Declaration of Human Rights, that unites people in an identity that is attached to a strong belief in the power of equality and universal values embedded in procedural and legal norms. Theoretically, this seems like an attractive alternative for peacekeepers to promote as a legitimating factor.

Yet, there are two problems with developing consociationalism and doctrines of universal human rights without guidance, security, and to some degree, force. Consociationalism can potentially exacerbate ethnic tensions by dividing and codifying government along ethnic lines.  I also recognize that accepting values such as universal human rights is a challenge to develop amongst warring groups without a force to prevent conflict.  To mitigate the challenges of having previously warring groups create laws and peacefully coexist together, I propose a tall but necessary element, that of an “enforcer” or “incentivizer.” James D. Fearon and David D. Laitin describe something similar to this concept as being a “Neotrustee” who participates in overseeing the “complicated mixes of international and domestic governance structures”[9] of a post-conflict society. The international community or some other neutral force is required to be present in order to guarantee peaceful coexistence of ethnic groups, allowing them the space to begin dialogue, develop procedures, and adopt a constitution that is recognized, respected and enforced. This can either be through the presence of policing, auditors, or other incentives for participation, such as membership to multinational organizations or monetary gain. Without such an enforcer, the peaceful, cooperative multi-ethnic society provided for in consociational structures and human rights dogma simply would not exist. Society would devolve back into ethnic conflict.

Bearing these three theoretical points in mind, I explore the optimistic possibility of creating the appropriate political and social ecosystem in the Constitutional drafting and peacemaking processes. I suggest that if balanced appropriately, ethnic cleavages can be mitigated in many instances through the right structure, legitimating values, incentives and enforcement. However, I also explore where this theory is lacking, particularly with the case of North Mitrovica and Serbian separatist movements within Kosovo. In these instances, I propose that the enforcer must act as a diplomat as well by working with surrounding countries or opposition (in this case, Serbia), by giving incentives to cooperate in a certain manner, but also by conceding land (in the case of North Mitrovica) or some control when absolutely necessary to maintain the peace. Ultimately, the internal ecosystem of a country, no matter how well planned in a statebuilding or Constitutional drafting process, must be understood as part of a regional ecosystem that requires great oversight by enforcer.

1. Background of Kosovar Conflict and the Road to Independence

Slobodan Milosevic rose to power in Yugoslavia in the late 1980s, largely through inciting Serbian fears and paranoia. Milosevic garnered the support of Serbs throughout the former Yugoslavia by uniting them in victimhood, pointing out the threat of the growing number of Kosovar Albanians within the “Serbian homeland” of Kosovo—known in the Serbian nationalist narrative as the seat of Serbian nationalism, folklore, and the Serbian Orthodox Patriarchate. His fueling of ethnic hatreds won him the support of Serbs throughout Yugoslavia, giving him control of the Serbian Community Party in 1987 and ultimately the presidency in 1989.  Upon gaining the presidency, Milosevic revoked Kosovo’s political autonomy and began a series of actions that marginalized Albanians, excluded them from any participation in government, and denied them any right to express their culture or language.[10]

Quickly, a government in exile for the predominantly Albanian population grew under the leadership of Dr. Ibrahim Rugova, an Albanian intellectual who had spent many years developing a government in exile for Kosovo, mostly out of Switzerland. Rugova participated in many international non-violent resistance conferences and intellectual circles, trying to learn ways to peacefully resist the Serbian aggression. At the same time that Rugova was working on peaceful resistance, an armed insurgency known as the Kosovo Liberation Army (K.L.A.) developed under Adem Jashari and Hashem Thaci—in many ways as a response to the failure of international intervention in Kosovo at Dayton.[11] The K.L.A. was more or less a guerilla army, informally trained and decentralized in command. Both Rugova’s peaceful resistance and the K.L.A., despite different means and ideologies, had the same goal—an independent and Albanian nation of Kosovo. As K.L.A. guerrilla fighting and Serbian aggression increased, it caught the attention of the international community, particularly with the Massacre at Račak, during which Serbian Special Police killed 45 civilians. As fighting carried on in 1999, the E.U. and U.S. convened at the Rambouillet Peace Talks to propose an agreement for the short-term secession of Kosovo; Serbia rejected it.

The West was beginning to find reasons for intervention. Perhaps the West did not want another genocide on their watch, as had happened in Bosnia. It could be that they wanted to curb Milosevic’s aggression once and for all. Perhaps because the nascent European Union was taking shape and trying to integrate Europe under universal European values, an ethnic conflict in the Balkan backyard would be contradictory to the E.U.’s foundational values. A greater fear might have been the flows of refugees into Europe. With all of these reasons piling up, on March 24, 1999, NATO launched air strikes without a U.N. Security Council (U.N.S.C.) resolution.[12] By June 1999, the Yugoslav Army surrendered and withdrew. The U.N.S.C. adopted Resolution 1244 recognizing Kosovo as an integral part of the Federal Republic of Yugoslavia, calling for the safe and unimpeded return of refugees and displaced peoples, and authorizing an international mission to establish a provisional self-government pending status.

By May 2001, The United Nations Mission in Kosovo (UNMIK) created central government institutions for Kosovo known as the Provisional Institutions of Self-Government,[13] an effort to promote “Standards before Status”—designed to make Kosovo a multi-ethnic society. The mission faced the “Albanians’ impatience with the status uncertainty and Serbs’ rejection of any initiative that would promote Kosovo as a self-governing entity.”[14]  The March 2004 riots that resulted were a reminder that the conflict was not dead and still quite contentious.

Realizing that Kosovo had to begin towards some kind of status settlement, U.N.S.G. Kofi Annan in October 2005 appointed Martti Ahtisaari to lead the U.N. Office of the Special Envoy for Kosovo. Ahtisaari suggested in March 2007 that Kosovo be granted independence, but the plan was rejected by Serbia, which subsequently urged Kosovo Serbs to leave Kosovo government institutions. Ahtisaari developed a document called “The Comprehensive Proposal for the Kosovo Status Settlement” that was not accepted by the Security Council, namely because it implied Kosovo’s independence, which upset Russia, Serbia’s ally. Other bodies, such as the European Union, the U.S., U.K., and France encouraged its usage and much of it was adopted by the Provisional government. The plan laid out constitutional provisions for consociational government which guaranteed minority representation and rights. It also described a process of government decentralization for minority municipalities. Ultimately, Kosovo unilaterally declared independence on February 17, 2008 and adopted the Constitution of the Republic of Kosovo (largely inspired by the Ahtisaari Plan) on April 9, 2008. The U.N.S.G. acknowledged that declaration of independence, and the coming into effect of the Constitution had created a new reality in Kosovo.[15]

Despite the fact that not all of its member countries recognize Kosovo, the European Union has set up a special mission there to oversee the development of rule of law processes. The European Union Rule of Law Mission to Kosovo (EULEX) was deployed in the absence of an amended Security Council resolution “six-point plan.” EULEX “monitors, mentors and advises” Kosovo while “retaining limited executive powers.” The European Union had in mind the creation of a multiethnic, European project, with or without the recognition by all member states of Kosovo’s independence. This is where the narrative of the story of Kosovo’s constitutional project in creating a multi-ethnic, civil democracy begins.

[Section III is not included in this excerpt.]

IV.  The Ahtisaari Plan and Kosovo’s Constitution

Can constitutions influenced or written by the international community provide legitimation, incentives, enforcement mechanisms and structure to allow multiethnic peoples in post-conflict zones to live peacefully together? Recall in the introduction that the successful statebuilding project, especially when overseen by internationals, must balance and be aware of these three elements during a constitution’s drafting, ratification, and execution. As a means to answer this question, this section investigates the factors that led up to Kosovo’s independence and the international facilitation of the creation of Kosovo’s Constitution. The story of Kosovo’s constitution goes back primarily to the Comprehensive Proposal for the Kosovo Status Settlement dated 26 March 2007.

Kosovo’s constitution, while largely influenced by the Ahtisaari Plan, has a complex legislative history. In 1991, as Milosevic began to heavily enforce policies of ethnic discrimination against Albanians in Kosovo, the “Kacanik Constitution” was drafted by Kosovan Albanians activists, which both declared Kosovo independent and set up a parallel government structure for the new “Albanian nation state.” This constitution was largely written by Ibrahim Rugova and his government in exile.[16] Rugova was quite an international figure, advocating for the independence of an Albanian Kosovo and participating in many international seminars on non-violent resistance movements. In many respects, he was a product of the international system and tried to play by its rules. Despite this, the Kacanik Constitution was taken seriously by neither the international community nor the Serbian (then Yugoslav) government, who at the time were dealing with conflicts in Croatia and Bosnia. Even later, during the conflict between the Serb military and KLA on the ground, Albanian political parties had “draft constitutions in their desk drawers in the event of conflict settlement and finally gaining political independence.”[17] Though perhaps an exaggeration, the idea remained that Kosovars were waiting in the wings for a chance at independence in the international spotlight.

Before the Ahtisaari Plan, Kosovo’s Constitution was influenced by other administrative mandates and documents. The establishment of the U.N. Interim Administration Mission in Kosovo (UNMIK) based off of the U.N. Security Council Resolution 1244 was primarily intended to preserve the territorial integrity of Kosovo and grant it “substantial autonomy” until a final status could be met. Albanian Kosovars viewed this mandate as a step towards an independent and sovereign Kosovo. In a secret meeting in Prizren in 2000, headed by the Special Representative of the UN Secretary-General (S.R.S.G.), Bernard Kouchner, there was an attempt to see if the 1999 Rambouillet Peace Accords document could be used as a model for constitution drafting, but this document essentially gave Serbia power to establish territorial and institutional “parallel structures” of government in Kosovo and also block decision-making processes in the central government in Kosovo. Kouchner realized that Rambouillet could not be the document that would establish a sustainable government scheme for Kosovo and Serbia, though the idea of using the peace accords as a foundation for the constitution would be an inspiration for the Ahtisaari Plan.

Serbia’s unwillingness to recognize Kosovo and the general lack of consensus in the international community as to whether Kosovo should be independent left Kosovo in a state of limbo after 1999, during its administration under UNMIK. To mitigate the economic and social problems that come from what was essentially a client state like Kosovo, the U.N. Security Council issued the Comprehensive Proposal for the Kosovo Status Settlement, otherwise known as the Ahtisaari Plan. Marti Ahtisaari of Finland, who had been heavily involved with the Bosnia-Herzegovina Working Group of the International Conference on the former Yugoslavia and had facilitated crisis management around the world, was Special Envoy for the Kosovo Status Process.[18]

The document Ahtisaari produced laid out general principles, constitutional provisions, rights of communities, the justice system, debt, security, international representation, and military guidelines for the future of Kosovo. Constitutional provisions here would later be adopted into Kosovo’s constitution in 2008, almost word for word. Many of the values underpinning the new Kosovo constitution would be drawn from the doctrines of international human rights, multiculturalism, and consociationalism—ideas that had been circulating in a number of ongoing and growing European Union intellectual circles, notably in the work of Jürgen Habermas.

Article One of the Ahtisaari Plan lays out the general principles of the proposal, which exemplify the ideals of universal human rights, equality, and multi-culturalism—the legitimation factor touched upon earlier that would make the values underpinning Kosovo universally acceptable to all ethnicities. Article 1.1 states: “Kosovo shall be a multi-ethnic society, which shall govern itself democratically, and with full respect for the rule of law, through its legislative, executive, and judicial institutions.” This first proclamation immediately underscores two key points: 1) Kosovo will be multi-ethnic and 2) it will be democratic. In reality, Kosovo had been neither truly multi-ethnic nor democratic. Kosovo, throughout the 1990s, had been multi-ethnic in demographic terms, but Milosevic’s systematic marginalization of Albanians from the political and economic systems had ultimately made Kosovo part of the Serbian nationalist project, with a parallel Albanian system. These new values radically broke from the historically ethnically based and ethnically organized paradigm in Kosovo.

These universal legitimizing factors in Article 1 of the Ahtisaari Plan are reiterated in Article 7 of the Constitution. The article is titled, simply, “Values.” It states:

“The constitutional order of the Republic of Kosovo is based on the peace, democracy, equality, respect for human rights and freedoms and the rule of law, non-discrimination, the right to property, the protection of environment, social justice, pluralism, separation of state powers, and a market economy.”

These values are derived directly from Articles 1.1-1.6 of the “General Principles” of the Ahtisaari Plan, and appear additionally in other articles throughout the plan that further explicate them. These principles, at least in the formal language of human rights doctrine, are foreign to the Kosovar government’s rhetoric, entrenched as they were after years under Communist and nationalistic dictatorship. That this article is entitled “Values” says something about the presumed, underlying legitimizing element to the constitution: respect for the constitution, rule of law, and legalism itself. Kosovo’s constitution does make a very obvious attempt at trying to provide and explain the values that make the constitution legitimate and savory to all peoples in Kosovo. This universalism is also reinforced by the inclusion and guarantee of the Declaration of Human Rights. Additionally, other articles pronounce critical new changes to Kosovo’s experience. Article 1.2 states that Kosovo “shall be based on the equality of all citizens.” Article 1.3 states that “Kosovo shall adopt a Constitution” of the “highest democratic standards.” Article 1.4 states Kosovo “shall have an open market economy.”

Chapter II of the Constitution details the “Fundamental Rights and Freedoms,” many of which are directly copied from the Ahtisaari Plan and other international agreements on human rights. Article 22 on the “Direct Applicability of International Agreements and Instruments” lists and guarantees international agreements as applicable to Kosovo, and “in the case of conflict, have priority over provisions of laws and other acts of public institutions.” The list includes the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols, the International Covenant on Civil and Political Rights, the Council of Europe Framework Convention for the Protection of National Minorities, and four others, all of which were directly lifted from Annex I—Constitutional Provisions, Article 2.1 of the Ahtisaari Plan. In many ways, Kosovo here adopts other agreements that have “priority” over other Kosovan acts or provisions in case of conflict. In this article, Kosovo positions itself as an obedient client to an international schema of “neotrusteeship” and human rights doctrine, in a language and form of understanding that is exogenous both in documents and ideology. It was, in short, a radically new break from the past of ethnic nationalism and kinship ties that had held together the Albanians of Kosovo and had separated Yugoslavia. It was proposing a new way of finding reasons to live together under universal values, with the help and guidance of the international community.

Indeed, much of Kosovo’s Constitution was drawn from the Ahtisaari Plan with the oversight of the international community acting as incentivizers, enforcers, and also mentors. As the plan did make provisions for a “Constitutional Working Group,” after the declaration of independence, the “Constitutional Commission of Kosovo” was created. The Ahtisaari Plan envisioned a group of twenty-one experts combined with political representatives who would be the drafters. U.S.A.I.D. exercised a very strong influence on this process, providing many of the experts involved.[19] The work on the constitutional draft was divided into ten different working groups: on the preamble, founding principles, Kosovo institutions, fundamental rights and freedoms, security and order, community rights, judicial power, economic relations, local self-government, and independent agencies and ombudsperson. A draft was put out for public discussion from February 19 to March 4, 2008.[20]  However, the draft was not voted on democratically in a referendum; there were fears that many Albanians and Serbs would have boycotted the process or rejected the draft, because it was not designed to promote an Albanian nation state nor was it going to rejoin Kosovo to Serbia.[21]  To this end, the Kosovan Serbian participation in the drafting process, compared to the level of participation by the international community, was quite minimal.  Moreover, and perhaps most telling, the levels of representation is very much reflected in the Ahtisaari Plan and the Constitution.

Article 1.11 of the Ahtisaari Plan mandates the involvement of the international community in Kosovo’s future, calling to mind the official placement of an enforcer or incentivizer in the state-building project. The Article states: “The international community shall supervise, monitor and have all necessary powers to ensure effective and efficient implementation of this Settlement, as set forth in Annexes IX, X, and XI. Kosovo shall also issue an invitation to the international community to assist Kosovo in successfully fulfilling its obligations to this end.” The international community is both inviting and demanding its presence in the future of Kosovo. The Ahtisaari Plan outlines a constitution and future for Kosovo with the idea that the international community will play an integral part in the future of Kosovo. The constitution of Kosovo reflects this involvement, as much of the constitution is directly—almost word for word—copied from the Ahtisaari Plan.

In areas of ethnic conflict where there has been some exogenous international peacekeeping presence, such as the U.N. or NATO, this external “trustee” of the peace enforces the rule of law or gives some incentive for peace (abiding by certain international standards in exchange for membership to organizations like the IMF, the World Bank, or in Kosovo’s case, the E.U). Aside from forcing these countries or giving them incentives to participate, the internationals as “trustees” to this peace often have interests in seeing these new or weak states such as Kosovo succeed. James D. Fearon and David D. Laitin lay this concept out in their article, “Neotrusteeship and the Problem of Weak States.” The article coins the term “neotrusteeship” to describe a form of “postmodern imperialism” that describes the “complicated mixes of international and domestic governance structures”[22] that evolved in places like Kosovo, Bosnia, East Timor, Sierra Leone, Afghanistan, and Iraq in order to ensure regional security and fulfill international interests, but with hopes for an exit strategy. Undoubtedly, geopolitics get involved in determining where such peacekeeping operations occur, yet the point remains that the reasons, resources, and interests of international powers differentiate this form of trusteeship from imperialism.

Both the Ahtisaari Plan and the Constitution mandate that the international community play a very active and significant role in the administration and rule of law in Kosovo, signifying the paternalistic role internationals will play as the “neotrustees” and enforcers of a new order. The Ahtisaari Plan in Article 12.3 makes provisions for an International Civilian Representative (I.C.R.) from an International Steering Group (I.S.G.) who would have “overall responsibility for the supervision” and “final authority in Kosovo regarding the interpretation of this settlement.” Annex IX goes into greater detail about the competencies of the I.C.R., some of which include “taking corrective measures to remedy, as necessary, any actions taken by Kosovo authorities” that are a breach (IX. 2.1) and his/her consent for appointment of the Auditor-General, international judges and prosecutors, Director of Customs, and Director of Tax Administration (IX.2.2). Additionally the I.C.R. would coordinate all international efforts including the European Security and Defense Policy Mission (ESDP). The I.C.R.’s mandate would not expire upon Kosovo’s independence, but rather upon completion of the fulfillment of the Ahtisaari Plan, thus creating a partially international government.

Kosovo’s Constitution does not deny the role of its international overseers. Kosovans are fully aware of their role as a client state and welcome internationals in the implementation of their constitution and their government structures. Chapter XIII, Article 143.1 specifically notes “All authorities in the Republic of Kosovo shall abide by all of the Republic of Kosovo’s obligations under the Comprehensive Proposal for the Kosovo Status Settlement.” Article 143.2 goes on to state that “the provisions of the Comprehensive Proposal for the Kosovo Status Settlement dated 26 March 2007 shall take precedence over all other legal provisions in Kosovo.” To this end, there will still be a larger or higher authority in Kosovo until the provisions in the Ahtisaari Plan are fulfilled; the end is not defined.

One cannot deny the provisions for a transition towards autonomy. Kosovo’s constitution does recognize in Article 151, Temporary Composition of Kosovo Judicial Council, and Article 152, Temporary Composition of the Constitutional Court, that many of the international actors and judges will eventually be replaced by Kosovars, but only towards the end of the fulfillment of the Ahtisaari Plan—an end which was not fully defined. While there are attempts made to show the phasing out of certain internationals, some are left at loose ends, particularly concerning the I.C.R. Many other figures, such as the Governor of the Central Bank of Kosovo, or the Auditor-General, are appointed by or appointed through consent of the I.C.R., according to Articles 157 and 158. The role or duration of the I.C.R.’s mandate is not clarified in the Constitution.

As mentioned before, the Constitution marks that it is a responsibility of the state to “promote a spirit of tolerance, dialogue and support reconciliation among communities and respect the standards set forth in the Council of Europe Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages.” (58.2) This dedication to reconciliation and protection of minorities, not to mention the exact wording of the article, also finds its origins in the Ahtisaari Plan in Annex II, Article 2.2. The spirit of reconciliation lives in paper by positive declarations and in systemically giving automatic representation to Serbs and other minority members in government by way of a structural element in this statebuilding process, one that is very aware of the divisions in the population and does not try to ignore the obvious factions, despite its universalist language.

In societies with militarized ethnic groups, it should be no curiosity that politics and government structure will also be defined by ethnicity; these divisions cannot be ignored in the constitutional drafting process and must be recognized to a degree in the structure of the government laid out. Donald L. Horowitz describes this ethnically divided society as rather infectious: “once one party organizes along ethnic lines, others are inclined to follow suit.”[23] These ethnic parties “preempt the organizational field” and tend to “crowd out parties founded on other bases.”[24]  Thus, the political landscape is defined solely by ethnicity and then by variations within those ethnicities. There is little crosscutting and participation across ethnic lines politically. Horowitz summarizes this political organization as having “stable parties” but “unstable politics.”[25] Ethnic cleavages are written into the social landscape.

Consociationalism can theoretically provide a framework of government in a constitution that can mitigate ethnic tensions and even encourage reconciliation through power sharing arrangements along ethnic lines. Arend Lijphart has written extensively on the concept of consociational democracy. He describes it as “segmented pluralism”[26] which considers not only formal separations of powers (legislative, executive, judicial) but also informal political substructures (parties—along ethnic lines in Kosovo’s case, interest groups).[27] The informal substructures are formalized into some kind of guaranteed power sharing arrangement. Examples of consociational democracies exist in Belgium, the Netherlands, Austria, Bosnia and Herzegovina, and Switzerland to varying degrees of political stability. The power sharing dynamics and theoretical and practical possibility for ethnic cooperation make consociationalism very attractive for international arbiters. This is evidenced by their application of the Ahtisaari Plan to Kosovo’s government structure and constitution, which guarantees representation to each minority group, as well as general autonomy and powers of decision making in certain minority municipalities. Kosovo’s constitution as outlined by the Ahtisaari Plan is set up with many of the major features of consociationalism

Thus, as the third structural component outlined earlier as being necessary to a successful Constitution and statebuilding exercise, the Ahtisaari Plan makes constitutional provisions to set up a consociational government system that guarantees the representation of minorities in the legislative bodies and courts, as well as a system of decentralized local government that has some autonomy on most matters of education, healthcare, and, to a degree, economics. According to the Ahtisaari Plan, this decentralization was put in place to “address legitimate concerns of the Kosovo Serb” community (Annex III—Decentralization).

The government structure under the Kosovo Constitution is truly set up along consociational lines first laid out in the Ahtisaari Plan’s Annex on Constitutional Provisions. In the Ahtisaari Plan, Annex I, Article 3.2 guarantees in the Assembly of Kosovo “twenty (20) seats reserved for the representation of Communities that are not in the majority in Kosovo” with ten for Serbs, and ten for other minority community members such as Ashkali, Egyptians, Roma, Bosniak, Turks, and Gorani. More seats can be won if the electoral process so dictates, but all minority groups will have the guarantee of this minimum level of representation, according to Article 3.3. Without much surprise, this Assembly structure, typical of most consociational governments, is repeated in Article 64 of Kosovo’s Constitution.

The Ahtisaari Plan is incredibly aware of the need to protect minorities. In Annex III: Decentralization, as mentioned before, minorities are guaranteed general self-autonomy in a special system of decentralization. In this scheme, new municipalities are created (usually along ethnic lines) and receive the rights to control pensions and educate children in Serbian language, among others. As an additional level of protection, the Committee on the Rights and Interests of Communities stays in place under both the Ahtisaari Plan and in the Constitution under Article 78. The Committee has powers to oversee that communities are having their rights fulfilled, with a guarantee that 1/3 of the members be Kosovan Serbs.  They are also guaranteed restitution under the Ahtisaari Plan’s Annex VII, Property and Archives, in Article 6.1. However, perhaps the most unique is Article 10 of Annex III of the Ahtisaari Plan: minorities, particularly Serbs, are able to communicate and cooperate “within the areas of their own competencies” with other municipalities, agencies, and even “government agencies, in the Republic of Serbia.” Because Article 148 of Kosovo’s constitution protects the enforcement and principles of the Ahtisaari Plan, it must guarantee these rights, competencies, and the fulfillment of all provisions in the Ahtisaari Plan.

To summarize, both the Constitution and the Ahtisaari Plan uphold elements like consociationalism to provide a structure for a deeply divided community to find a balance betweenthe experience of living together while apart and the use of universal human values as a source of legitimacy. Both documents also place emphasis on the ongoing involvement of internationals. The Constitution’s Article 143 places the legal provisions laid out in the Ahtisaari Plan above any conflicting laws made in Kosovo proper. Additionally, it includes the ongoing presence of international auditors and judges in certain posts. Both documents are aware of the ethnic cleavages and try to mitigate them through recognition in a consociational structure. The documents also try to surmount ethnic differences through universal human rights doctrine and legalism as legitimizing elements. However, these documents require the ongoing presence (and sometimes explicit force of) the international community to create an environment peaceful enough for the experience and institutions of peaceful coexistence and reconciliation to take root. Despite attempts to provide the trifecta of a proper ecosystem comprising a legitimation element, enforcement and incentives, and of course the proper structural components of government that bear in mind inherent divisions while still offering universal equality and representation, some Kosovan Serbs are still exhibiting violent resistance to Kosovo’s institutions. That violence calls into question how long and how forceful the “neotrustee” must stay in order for ethnic cleavages to close.

V. Theory in Inaction: The Failures of an Exogenously Influenced Constitution and State-Building Process in the Case of North Mitrovica

Despite the attempts of the international community to set up a sustainable governing system through the Constitution for Kosovo to live in peace, internal ethnic cleavages exist which destroy the balance of the system in theory and in practice.  This imbalance may be seen from Kosovan Serbs’ simple lack of recognition and participation in the government. As noted in the Ahtisaari Plan as well as in the Constitution, minorities should theoretically be ensured representation, rights, and even special protections in the new state of Kosovo. However, despite these promises, many members of the Kosovar Serbian community still resist even the recognition of Kosovo and its rule of law. Moreover, they even participate in a Serbian state-sponsored parallel system. The most salient example of the systematic rejection of Kosovo as a multicultural state is found in the activities of North Mitrovica and its recent referendum asking, “Do you accept the institutions of the so-called Republic of Kosovo?” The vote proved to be 99.7% “No,” totaling about 75.28% of the 35,000 eligible voters.[28]

The significance of the complete rejection of Kosovo and the corresponding attempt to have North Mitrovica join Serbia is illustrative of the failure of governance, participation, and constitutional culture to take hold in the country, showing that ethnic loyalties can run deeper than loyalty to a government that promises representation, rule of law, special protection, and more.

Mitrovica is a municipality 40 km north of Prishtina. The municipality today is divided north and south, with the Ibar River flowing in between the two halves. Mitrovica may appear to be a special case in light of other, significantly smaller Serbian communities in Kosovo. However, its recent violence in the summer of 2011 and the unanimity of the 2012 referendum are signs that promises of universal human rights only run skin deep in Kosovo and that, when left to their own devices, Serbs (and perhaps Albanians) would resort to ethnic and cultural bonds as the cement for social solidarity.

The power and influence of the Republic of Serbia is evident in many parts of Kosovo, but nowhere more so than in Mitrovica, frequently manifesting itself in support for teachers, healthcare, policing, a parallel government system, and more. Considering Serbia gives around 300-500 million Euros per year in aid to Kosovan Serbs, the loyalty that that support produces seems possibly dangerous, even contradictory to the ultimate goals of the Ahtisaari Plan, despite provisions permitting the accepting of gifts and coordination with outside institutions and governments in Article 10 of Annex III of the Ahtisaari Plan.[29] Given the higher salaries, pensions, and social assistance offered by Serbian state institutions in places like Mitrovica, Serbia is likely to remain a significant influence in Kosovo so long as these parallel structures are permitted to exist.[30]

As more municipalities are created along ethnic lines by the government in Prishtina, many Serbs find themselves even more consolidated in exclusive communities as they move to be with fellow Serbs. Before 1999, about 4,000-4,500 Serbs lived in Southern Mitrovica, but today there are almost none.[31] Indeed, as minorities are treated as a specific class of people, rather than as a part of the general populace, they tend to isolate themselves from interaction with other ethnic community members.  For instance, about 67.4% of Serbs living in North Mitrovica today did not live there before the war.[32] This is not perceived as a problem either; 0.0% of Serbian Kosovar respondents said the “Divided City” was a problem when asked.[33] Indeed, when asked if they had any contact with other ethnic groups, 73.6% of Kosovan Albanians said “No.” In contrast, 41.9% of Kosovan Serbs—who might interact with other minorities in the North—responded “No” to the same question.[34] That lack of interaction and sense of division creates a problem when Kosovar ethnicities try to participate in Kosovo’s multicultural government structures, despite the ongoing process of decentralization.

Economic opportunities in Mitrovica are a particular problem, posing the potential for fiery conflict. Demographically, the region has incredibly low employment rates, with young people finding access to employment or education near impossible. The Trepca mining complex has activities of only a fraction of what they once were; in 1988 it employed 23,000 workers and today it employs just 2,525 workers, 1,355 of whom are Albanian (54%) and 1,170 (46%) of whom are Serbian.[35]  The poverty rate is about 69.7% per headcount, or with a poverty distribution of about 22.6%.[36] Unsurprisingly, an O.S.C.E. report in 2010 notes a “deterioration in the security situation since mid-2009 in northern Mitrovica.” The community profile report cites Kosovar Albanians attacking a Serbian couple and Albanian school children stoning a bus with Serbians on it. These levels of poverty, unemployment, and ethnic tension does not bode well for reconciliation or recognition.

Additionally, access, recognition, and participation in Mitrovica are a problem, particularly with respect to the rule of law. The court system in Mitrovica is nearly at a standstill because of issues of both security and capacity, and the lack of capacity has bred even greater perceptions of injustice. According to a 2011 O.S.C.E. report on “The Mitrovica Justice System: Status Update and Continuing Human Rights Concerns,” the Mitrovica municipal court functions in a minimal capacity, and typically out of the neighboring Vushtrri Municipal court in Kosovo.[37][38] In addition, there is a huge issue of resources: over 31,715 cases were submitted between February 2008 and October 2010.[39] Despite the deployment of EULEX judges in Mitrovica, the number of cases continues to grow and the little respect that Serbs from North Mitrovica attempted to show in their submission of cases continues to wane. Access to justice in areas inhabited by non-majority communities and especially in northern Kosovo is not guaranteed, and is seriously limited by the absence of a functioning judiciary. There is, for instance, no Kosovo Serb representative in the district legal aid office based in South Mitrovica.[40] The same OSCE report describes a growing “sense of impunity” amongst youngsters and other Kosovar Serbs. [41]

On July 26^th 2011, North Mitrovica saw a surge in violence, Serbian nationalism, and NATO-KFOR activity in response to the Kosovo Serb blockade that lasted until near the end of 2011. There were huge political provocations involved. A week before the violence, Kosovo responded to a Serbian ban on Kosovar goods by banning Serbian goods into Kosovo. Prime Minister Hashem Thaci also unilaterally ordered the Kosovar Police to take control of border crossings between Kosovo and Serbia in North Mitrovica—without consultation with EULEX or KFOR.[42] The clash betwee the Kosovo Police and Kosovan Serb locals on July 26^th resulted in the death of a Kosovo police officer, Enver Zymberi, which subsequently fueled Albanian nationalism around the country.[43] By July 27^th the Jarinje border crossing was burned down by locals with hand flares and Molotov cocktails.  Kosovan Serbs continued to blockade roads to the north until NATO removed roughly three out of eight roadblocks by August 1^st.[44] By August 3^rd, KFOR had requested another 700 troops to handle the escalating violence.[45] September 16^th saw yet more conflict as KFOR airlifted troops to take control of the border. The clashes continued well into October, as more injuries were incurred from riots, pipe bombs, and rubber bullets on both Serbs and KFOR as the latter tried to dismantle remaining roadblocks. This incident was a clear example of Kosovo Serbs showing strong loyalty to Serbia rather than to their “European” or “multicultural state.”

Notably, Kosovar Serbs’ loyalty to and trust in Serbia is waning just as their interest in joining the European community is also deteriorating. Some mentioned that if Serbia accepts customs officials from Kosovo on the border, it would mean that Serbia “has started to kill us.” At the same time, they indicate ambivalence towards joining the EU, stating, “When do you think Greece will go bust? What about Italy? If the EU is in such a state, why should we be trying to join it?”[46]  Clearly, the foundation of ethnic loyalty is shaken as Serbia continues to be tempted by EU integration, which would require ceding Mitrovica to Kosovo. At the same time, EU loyalty is shaken simply by the economic and social problems it now faces.

This recalls the question of the role of the “enforcer” and “incentivizer.”  As Serbia moves towards greater cooperation with the EU in hopes of integration, it means abandoning their parallel structures in Mitrovica and Kosovo at large. The role of the “incentivizer” can also work for the enemies of Kosovo, and be part of the solution to creating an environment of peaceful coexistence. If Serbia were to abandon these institutions, it could potentially mean greater prospects for the fulfillment of the Kosovo constitution’s aspirations, but also even more violence and disgruntled Kosovan Serbs.

Despite the possibility that Serbia could abandon them, Kosovo Serbs in Mitrovica are not giving into acceptance or recognition of Kosovo’s institutions in the meantime. As mentioned previously, during this past winter, Kosovo Serbs in North Mitrovica held a referendum in February 2012 asking, “Do you accept the institutions of the so-called Republic of Kosovo?” The vote proved to be 99.7% “No”, comprising about 75.28% of the 35,000 eligible voters.[47]  Neither Belgrade nor Prishtina was thrilled. Serbian President Boris Tadic released a statement that the referendum was harmful to Serbia’s EU integration ambitions. Tadic explained, “This move by leaders of the municipalities in northern Kosovo can only reduce the possibilities of the state, and is not in the interests of Serbs in the province.”[48] Similarly, Prishtina found the referendum illegal and harmful to the state capacities promised by the Constitution.

Despite these reactions from both Prishtina and Belgrade, Kosovo Serbs continue to demand that Belgrade run municipal elections in Mitrovica just as they are doing throughout Serbia. Seventy-nine delegates and mayors of the four Serb municipalities wanted to launch their election preparations for May 6^th just as they have started to do in Serbia. This is an effort to show their “absolute commitment to the Serbian state.”[49]  Yet, because Brussels claims that limiting these parallel structures in Kosovo is essential to Serbia’s EU bid, Serbia itself now faces a worrisome problem.

The above examples demonstrate the unwillingness of the Kosovar Serbs to recognize, participate in, or buy into European values, the Republic of Kosovo, and the rights promised to them by the Constitution. Their loyalties and cultural priorities are first and foremost grounded in Serbia. Even with the presence of KFOR to enforce the peace and EU membership as an incentive to participate, this ethnic division is too wide to bridge at the moment. If the Ahtisaari Plan, the Constitution, and the internationals cannot integrate Mitrovica into Kosovo’s institutions, how will the consociational system effectively function? How will the spirit of universal human rights ever grow to replace the ethnic loyalties that could ignite at any moment, as seen in the past year? Indeed, this is where theory, policy, and reality meet in a critical moment.

VI. “What to do?”: The Perennial Balkan Question With Some Concluding Remarks

Despite the problems in North Mitrovica, Kosovo has seen substantial development from warzone to developing country in just ten years. The country has made strides in having a modern multicultural government, in having a populous that is slowly overcoming painful memories of ethnic war and warming up to cooperation, and in having a continuous military presence that has scaled back over the years. With respect to the framework for a legitimation element, a balanced structure, and enforcement mechanism, Kosovo could even be considered the success of international intervention to date. That said, it is still a long way from perfect. Kosovo’s question of status and stability depends on a Serbian change of heart, geopolitical will, and the outcome of what happens in North Mitrovica—which at the end of the day does not fall on the structure of a constitution, but on the incentives and wills of the international community.

The ongoing instability emanating from the lack of recognition by Serbs in Mitrovica and the violence that comes with it are huge factors in preventing the rest of Kosovo from enjoying peace. Despite the structure, legitimacy, and enforcement elements in place, something is not working to appease Kosovan Serbs in Mitrovica. A consociational agreement that provides so many rights and protections to minorities is not enough, as there is neither desire nor necessity to participate in an independent Kosovo. As a result of the lack of participation, there is a perception that the state is failing. Thus, it is hard for many minorities and even some Albanians to have faith in the power or efficacy of their state (beyond Albanian ethnic loyalties and patriotism for an independent “Kosova”). There is little faith in the state’s power to carry out a constitution that seemed to promise so much. Even with the enforcement of the rule of law provided by KFOR’s presence and other internationals, some divisions, like that in Mitrovica, are just not meant to be forced together. Sometimes, secession is just as important to stability as a good government, a faithful people, and a powerful enforcement mechanism.

Thus, the Balkan question of “What to do?” arises. Mitrovica is a powder keg in the region. On the one hand, it seems appropriate for North Mitrovica to secede to Serbia, but then the experiment of a multicultural Kosovo would be dubbed a failure by the international community, and the billions spent by European and American taxpayers to try to glue Kosovo together would be for naught.

Additionally, there is the problem of creating a challenging legal precedent and disrupting certain balances in the geopolitics of the “neotrustees” of Kosovo. Currently the principle of uti posseditis has dominated the conversation on creating territorial boundaries after regime change. Originating in Roman times, uti posseditis, property as designated by the previous territorial boundary remains with the possessor or victor after conflict, but the territorial boundaries go unchanged. This principle also influenced the international community at the Badinter Arbitration Committee at the beginning of the breakup of Yugoslavia. It assumed that uti posseditis would stand as an effective way of territorially dividing the new independent republics, so no boundary changes would occur. If Mitrovica were to break away from Kosovo then, it would set an even more dangerous legal precedent for ethnic minorities to secede—a precedent already thought to be applicable to Kosovo if Kosovo’s secession were not considered sui generis.

The secession of Kosovo was problematic enough for great powers like China and Russia to stomach, let alone another instance of boundary changes like Mitrovica. The U.S. and the E.U. cannot afford to create more imbalances in such geopolitical and legal dynamics by letting North Mitrovica secede to Serbia. To this end, the geopolitical interests of the “neotrustee” seem to be getting in the way of what potentially could be a very viable move towards creating a more peaceful environment in Kosovo by excising a destabilizing community that does not want to be there in the first place. Other Serb communities would not be incensed (most other Serbian communities are just too far away from Serbia geographically to secede, and are already starting to integrate into Kosovo’s social fabric more easily without the proximity to their mother country). Simply put, while the secession of Mitrovica might be one of the most obvious moves to create peace, it will not be permitted by the very “neotrustees” who are spending so much to find a solution for peace.

The other option for letting Kosovo move forward towards a stronger state and culture of self-governance would be for Serbia to recognize Kosovo. This seems like a common suggestion at the end of most political papers on the region. Serbia has been refusing this recognition, but this excludes them from joining the European Union. Recent economic and political hardships have in many ways changed Serbian political priorities to make EU membership more valuable and more of an incentive than keeping Kosovo, which becomes less of a reality every day. On March 1, 2012, Serbia was granted candidate status by the European Union after agreeing to more talks and concessions surrounding Kosovo, but full membership is still contingent on recognizing Kosovo.[50] Serbia itself has been slowly cutting ties with parallel government structures in North Mitrovica, and the president of Serbia has recently excluded Kosovo Serbs from voting in national Serbian elections.[51] If Serbia were to recognize Kosovo, Mitrovica would potentially stop trying to rejoin Serbia, as it would be too much of a political liability for Serbia’s EU integration to accept North Mitrovica into their country. If Mitrovica is permitted to secede or Serbia recognizes Kosovo, the associated political and ethnic cleavages might relax. Kosovan Serbs who live in geographic enclaves in the heart of Albanian Kosovo would see that boundaries are being drawn more firmly and Serbia is not going to take back Kosovo; they would have to participate in Kosovan government structures to be successful or live in a bygone dream that only hinders their personal development. This potentially might make an actively participatory consociationalism more of a reality, at least in theory, because the cleavages would not be so great.

To a certain degree, the cards lay in the hands of Serbia to make a move; the enforcer in this case also has to be a diplomat and make sure that countries surrounding the new state recognize the validity of that state, and make adjustments when necessary—such as border negotiations and territorial exchanges in this instance. The international community must take active steps as a “neotrustee” to ensure the welfare and execution of Kosovo and it’s constitution.

If the “neotrustees” of Kosovo remain and can give the time and resources to making sure the structures and values they transplanted take root, there is the potential for Kosovo to be self-governing, and peaceful—perhaps even reconciled thanks to the structure and legitimacy provided by the constitution. However, this may take decades of political evolution. Laitin and Fearon have faith that this can happen. They agree that “it makes sense […] to construct new institutions and operating procedures that will be effective and fair in dealing with the challenges posed by collapsed states” but it will require long-term commitments and resources that go in the “direction of neotrusteeship.”[52] However, this requires a lot of international aid, incentives, and ongoing force not only in Kosovo, but also directed at Serbia to recognize Kosovo.

This tall order may have too short of a mandate and too few resources in order to be fulfilled. It requires the international community to pick and choose their “neotrusteeships” carefully—they are expensive and have great potential to go terribly wrong, never resolving the core conflict if not given the time and resources. Large interests must be at stake in order to carry out a mission like this—interests which may even sabotage potential and necessary options that could create more peace, such as secession in this case. Transplanting values and political systems without assuring their growth and adherence can backfire, as it might have in Bosnia. The initial peacekeeping mission cut short can make things worse for both the people in the conflict zone and the international community, as it might have in Iraq. That said, the identity of Kosovans in the long run might just be recognized and remembered as being a client state to international aspirations for a more multicultural and peaceful world order. It was an early experiment in what looks to be an ongoing trend in international intervention; hopefully we can learn from it.

With the right arrangement and proper balance of constitutional structuring, legitimating mechanisms, and a more neutral international presence, a country can see success come from a properly written and executed constitution that draws on exogenous resources and inspirations. This admittedly tedious balancing act can also risk great success or great failure if those involved, including those in the international community, are not flexible.  As Kosovan public intellectual Shkelzen Maliqi said, “Kosovo is a child of an international love affair.”[53] While all children must grow up, it is not without significant growing pains, educational loans, identity crises, and the potential for great danger and violence that they do so; nonetheless, there remains the potential for success and peace.

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Appendix A

Map of Kosovo, showing distribution of ethnicity by municipality.

Source: BBC News, OSCE/USIP, [http://newsimg.bbc.co.uk/media/images/44434000/gif/ _44434453_kosovo_alban_serb_map416.gif]