Kosovo: the day after

About the author
Timothy William Waters is an associate professor at Indiana University Maurer School of Law, where he researches the creation of new states, and teaches international and Islamic law.

After a decade of waiting and months of intense manoeuvring, Kosovo's assembly unilaterally declared independence on the afternoon of 17 February 2008. The capital Pristina lit up with celebratory fireworks, reflecting the mood of the Kosovar Albanians who form 90% of the population. The United States, France and Britain recognised or announced their intention to recognise the new state on the day after the declaration, and a number of European Union countries will follow. But there are forces adamantly against independence: most immediately, the Serbs living in enclaves within Kosovo where they form a majority, notably around the northern town of Mitrovica; Serbia, which to no one's surprise has declared the assembly's move null and void; and Russia, which is pressuring the United Nations to reject Kosovo's statehood (and which will use its Security Council veto to block Kosovo's membership of the UN).
Timothy William Waters teaches international law at Indiana University (Bloomington), and helped prepare the indictment of Slobodan Milosevic for crimes in Kosovo.

This article was written by invitation from openDemocracy

This bitter dispute is the price of the unilateral path Kosovo's authorities felt compelled to take - even though unilateral independence was nobody's preference. On the first day of this new political reality it is worth asking: how did matters reach this point, and what happens now?

The cost of delay

Kosovo's status was supposed to be decided through a negotiated political process. In the first years of the international protectorate following the war of March-June 1999 which led to the removal of Serbian forces from Kosovo, little was done to move beyond strengthening interim institutions. But then the UN's dithering slogan of "standards before status" (i.e., reforms before independence) exploded in deadly communal riots in March 2004, when many Serbian sites were targeted in coordinated attacks and nineteen people killed on both sides. From that point, a new urgency gripped the western powers supporting the UN mission, impelled by the fear that war might break out if fed-up Albanians did not get statehood.

A new process of negotiations between Serbian and Kosovar representatives , however, led nowhere, as there was no common ground between Albanians' insistence on independence and Serbia's insistence that independence was the one thing Kosovo couldn't have. Still, at the beginning of 2007, the US and European policy establishment confidently assumed that Kosovo's endgame was in place: under UN envoy Martti Ahtisaari's plan, the Serbian province would be independent by summer. There was speculation about Russia's price for going along - a deal on missile defence? - but that Russia had a price was not questioned.

Among openDemocracy's articles on Serbia and the future of Kosovo:

Peter Lippman, "Kosovo: approaching independence or chaos" (30 October 2006)

TK Vogel, "Kosovo: a break in the ice" (2 February 2007)

Marko Attila Hoare, "Kosovo: the Balkans' last independent state" (12 February 2007)

Vicken Cheterian, "Serbia after Kosovo" (18 April 2007)

Neven Andjelic, "Serbia and Eurovision: whose victory?" (25 May 2007)

Eric Gordy, "Serbia's Kosovo claim: much ado about..." (2 October 2007)

Paul Hockenos, "Kosovo's contested future" (16 November 2007)

Juan Garrigues, "Kosovo's troubled victory" (7 December 2007)

Ginanne Brownell, "Kosovo's Serbs in suspension" (10 December 2007)

Mary Kaldor, "The Balkans-Caucasus tangle: states and citizens" (9 January 2008)

John O'Brennan, "Kosovo: the hour of Europe" (14 January 2008)

Unfortunately, no one checked with Moscow, which threatened to veto any deal not acceptable to both sides; this stymied western insistence that the only option was what would, after all, be partition of a sovereign state. At the time, US diplomats were so busy announcing that Russia had no real interest in Kosovo that they forgot to notice: America doesn't either. The Balkans - an obsession under Bill Clinton's presidency in the 1990s - are today peripheral to President Bush's war on terror; US commitment to Kosovo has been running on fumes. Russia's, on the other hand, has been running on oil (which, at nearly $100 a barrel, buys a lot of commitment). Russia has played its resourceful hand skilfully, yet political and diplomatic realities meant that ultimately it has had no way to forestall the unilateral option.

This may look like a diplomatic defeat for Russia, yet it is likely to leave America and (most of) Europe unhappy about the high price they may have to pay for their commitment to support Kosovo. For example, Russia will now exploit the "precedent of partition" to give even more open support to the regions of Abkhazia and South Ossetia which have broken with Georgia only to become Moscow's effective clients. Moreover, unilateralism will lock Serbia and Kosovo in tense conflict; an embittered Serbia's normalisation could be delayed for a generation, foreshadowing instability in the region and derailing reform in neighbouring Bosnia, whose Serbs view events in Kosovo as bolstering their own claims to reverse the progressive surrender of power to the central government.

Even apart from these external costs, independence will not solve the deep structural contradictions within Kosovo. In fact, independence changes very little: the highly qualified form of statehood Kosovo has accepted will leave it under international supervision. The biggest difference might be that it will get a lot darker: Kosovo gets its electricity from Serbia.

This points to a problem independence will make worse, or at least clearer. It's one thing for Kosovo to declare its independence, quite another to actually enforce its authority. The Serb-populated north of Kosovo does not recognise Pristina. Western diplomats hope to slowly draw local Serb institutions - which are funded by Belgrade - into accepting the new state, but that will take years, assuming the Serbs even stay.

The northern option

It is not evident that western governments' current decisions and preferences will help resolve these issues, nor indeed why they should be trying this hard. There are strong arguments for a different stance towards Kosovo: that while Kosovo's Albanians richly deserve independence, there is no good reason the Serb north must be drawn into the new state. On the contrary, allowing it to remain part of Serbia would have three concrete benefits.

First, it would give Serbia something in exchange for acquiescing in Kosovo's independence. At present, Serbia has no incentive to accept Kosovo's fait accompli: it has already lost the province, and the remaining Serbs (around half of whom live in the Mitrovica area, and half in enclaves dotted around the rest of Kosovo) have extensive protective guarantees - so why should it surrender its formal claim? But if in return Serbia could recover the north - more accurately, get recognised title back, since Belgrade already exercises more control there than does Pristina - it would have an incentive.

Second, it would simplify the governance of Kosovo. The Ahtisaari plan calls for an incredibly decentralised and fragile model of governance, and the only reason it does this is to placate the Serbs. With the largest, most radicalised Serb area (and the Serbs' only urban centre) no longer part of the state, the remaining Serb minority would be spread out among isolated rural pockets that are more reconciled to living in an Albanian-majority state. For the Albanians, that would make governance simpler - not easy, just easier than the nearly impossible task set for them under Ahtisaari.

Third, there is a humanitarian argument for limiting what is, in effect, the partition of Serbia. The reason the leading western states are supporting Kosovo's independence is because Albanians should not have to live under a regime that oppressed them. But if western intervention is protective, why should it extend to areas and people who (like the Serbs in northern Kosovo) neither need nor want such protection?

Kosovo's Albanians deserve to escape their constitutional limbo, but does that require hewing precisely to boundaries Tito drew in 1945, even if that means denationalising 100,000 Serbs? The latter were not subjected to Belgrade's policy of ethnic cleansing during the wars of the 1990s; they would prefer to stay citizens of Serbia - and to stay in their homes. The west's current policy may sooner or later force them to choose; indeed, there is a possibility that, within a few months or a year after independence, the entire remaining Serb population will have left. It may even be that officials in the US state department and European foreign ministries are fully aware of this risk, and simply view it as acceptable. What kind of victory would that be?

A time to rethink

It's late to be imagining alternatives, but therfore all the more necessary: the current deadlock arose in part because from the outset, the leading players in the international community have refused to consider anything but an all-Kosovo solution. That lack of creative diplomacy has cut off real options - and closed minds to the reality that even though independence is necessary and right, it doesn't solve Kosovo's problems. The root of the conflict is territorial, but the minds that have to be changed are not only in the Balkans, but in Brussels and Washington. Some European diplomats did float the idea of border adjustments, but an Atlanticist orthodoxy rules out territorial revision and with it the possibility of compromise. Yet the lack of a viable plan for the Serb areas just exposes the vacuum at the heart of western policy: even with independence, the best outcome is the status quo of international protection, modelled on Bosnia. But that is no resolution - it's barely a policy - and without one there will be at best a Cypriot-style paralysis, at worst renewed violence.

A decade's delay in resolving Kosovo's "final status", followed by the late haste in forcing a decision, mean that time is short. The next opportunity for the supporters of Kosovo's independence to consider their own interests and those of people in the region will come after the moment of recognition. At some stage, the US and Europe will have to come around to the idea that limited border adjustments could ensure that Albanians achieve the full independence they deserve while allowing as many Serbs as possible to remain in the country to which they feel allegiance.

Conflict is not inevitable, and chaos does not keep to schedule. But the same is true of agreement, and neither Kosovo's declaration nor western recognition will solve the territorial dispute inside Kosovo. In the larger perspective of the last decade, the current predicament represents the tail end of a crisis rooted in two overlapping national projects, but whose timing was determined by arbitrary deadlines and a panicked rush from "standards to status". Kosovo's Albanians have finally made their move, and today they are celebrating in Pristina. But after the last firework, they will recognise how little has really changed, how much real work there is to do - and how, if the potential for further conflict is realised, more than fireworks may light up the sky.

The recognition of Kosovo's independence by the United States and many European Union countries is now inevitable, and welcome, but the real question is what these states do next. Until they muster the political courage and imagination to confront the territorial and human dilemma at the heart of this conflict, Kosovo Albanians may find, when their day of joy is over, that they have a new and bitter slogan: after standoff, stasis.