State Building and Exit

The International Civilian Office and Kosovo's Supervised Independence 2008 – 2012

Cover illustration: ICR Pieter Feith in Velika Hoča/Hoça e Madhe in October 2011. Photo by Atdhe Mulla.

This book is a collaborative effort of a team of ICO staff members. It is made available under the Creative Commons Attribution- NonCommercial-ShareAlike License (refer to http://creativecommons.org/licenses/by-nc-sa/3.0/).

Printed copies of the book can be ordered at cost price on the print-on- demand website www.createspace.com/4097025. Digital copies (pdf and epub) can be downloaded for free on the post-ICO website www.ico- kos.org.

ISBN 978-9951-19-067-1

Pristina, Kosovo December 2012

CONTENTS

Foreword by Pieter Feith v

Executive Summary 1

I The Beginning 6

II The Constitution 18

III Reform and Stability 28

IV Challenges and Crises 39

V The Dual Mandate 56

VI The ICO Model 74

VII Deciding to End Supervision 85

VIII CSP Progress 2011-2012 101

IX Managing the End of Supervision 115

X Closing the Mission 129

XI Reality and Reactions 133

FOREWORD

The International Civilian Office, which between 2008 and 2012 supervised the implementation of President Ahtisaari’s Comprehensive Proposal for the Kosovo Status Settlement,1 was an extraordinary international creation: a unique mission for a unique context in a young European state; and a mission that closed itself, in good time. The ICO was privileged to have been mandated to help implement such a clear and well-balanced blueprint for state-building as the Ahtisaari plan. Ours was not an open- ended mission to supervise the Kosovar authorities, but above all a forward looking program to support reform, integration of the communities and reconciliation in the region, to be completed in only a few years’ time. In this we were greatly assisted by the Kosovo leadership’s commitment to see the ICO succeed, which they considered as a success of their own in a partnership among equals. There were also limits set by lack of cooperation, including in the north of Kosovo.

1 The Comprehensive Status Proposal (CSP) is available on the post-ICO website on this page: http://www.ico-kos.org/?id=38. v

International Civilian Office

To protect the ICO’s legacy by highlighting its achievements is not the primary purpose of this document. That will be for others to take up if they wish to do so. Neither, coming so soon after the mandate ended, can we provide a detailed narrative of the regular, intensive but largely invisible work with the Kosovo authorities and with our stakeholders covering our core tasks, but more often than not the daily management of events, of unforeseen developments, of crises big and small. Nor do we include perceptions and expectations of those directly involved. It is rather about the dynamism of the ICO, its impact and effectiveness, the strategic choices and about the move towards the exit in close harmony with other players. Was the timing right to end the mission? What does the qualification “substantial” implementation of the Ahtisaari plan mean as an end state? In this age of austerity and evolving reflection on when and how to intervene in crises and post-crises situations, the type of short-time mission to implement a peace plan with the emphasis very much on local responsibility and ownership may offer precepts and cues for the future. No size fits all – every form of bene- volent intervention has its own characteristics. But Martti Ahtisaari crafted a similar plan to end ethnic strife in Aceh, Indonesia in 2005 and from my involvement in that mission I wanted to draw conclusions, in particular on how to end a mission. Thus, as early as in October 2009 – only a year and a half into the mission – an ICO management retreat sought to explore the way forward including the transfer of tasks to

vi Building a State and Exit the EU, the move from a supervisory structure to one focused on advice and support, and a draw-down of selected units and possible timings of exit. And the process initiated in 2011 – of a two-track strategy to end supervised independence leveraging residual Kosovar commitments with transfers of authority to the institutions and “watch- lists” for other international players including the European Union - may merit emulation. For ideally an exit should not imply a complete and sudden halt to all international involvement but rather a carefully designed, gradual redistribution and cascading of tasks over a manageable period of time. If I had to try to identify the reasons for the ICO’s relative success, I would point to five factors: the brilliant construction of the Ahtisaari plan; the close-down clause of the plan, which we developed into an exit strategy; the nature of the settlement plan as a reform agenda (compatible with EU and transatlantic requirements); the interplay of supervision and support in our relationship with the Kosovo authorities; and the central role of those authorities in pursuing the plan (and collaborating to avoid ICR corrective action). The ICO has now been disbanded without leaving any footprint behind. It remains only as an enduring legacy in the emerging institutions of Kosovo and in the memory of those involved. I hope this document will be of use to others engaged in global conflict management, including those with whom we worked closely to advance the daily situation of the people

vii International Civilian Office in Kosovo. To my former colleagues and friends in the ICO who contributed to this document I extend my heartfelt thanks.  Pieter Feith International Civilian Representative for Kosovo, 28 February 2008 – 10 September 2012

viii

EXECUTIVE SUMMARY

On 17 February, 2008, Kosovo declared unilateral independence from Serbia, following six years of negotiations that finally produced the Comprehensive Proposal for the Status of Kosovo, also known as the CSP or Ahtisaari Plan. Following the declaration of independence, twenty-five states that recognized Kosovo as an independent state formed the International Steering Group (ISG) for Kosovo and appointed an International Civilian Representative (ICR) to head the International Civilian Office (ICO). The ICR was simultaneously appointed the European Union Special Representative (EUSR) representing a divided European Union (EU), where 22 states recognized Kosovo’s independence and five would choose not to do so. The ICR/EUSR’s dual mandate was to ensure Kosovo’s full implementation of the Ahtisaari Plan as well as prepare it for eventual European integration. In October 2008, Serbia made a formal request to the International Court of Justice (ICJ) to issue an advisory opinion on the legality of Kosovo’s unilateral declaration of

International Civilian Office independence. Fifty recognizing states presented their written briefs to the ICJ between the months of April and June 2009, and the closing arguments were presented before the ICJ bench in December, 2009. The ICJ advisory opinion was issued by the Court on 22 July, 2010 and it held that the unilateral declaration by Kosovo did not violate the general principles of international law. The Kosovo case was seen as unique and in keeping with the highest tenets of the preservation of human rights, and specific cultural as well as historical circumstances. The ICO’s Lessons Learned Report, “State Building and Exit”, reviews the period between February 2008 and the end of supervised independence on 10 September 2012. It highlights the core focus of the ICO in helping Kosovo implement the Ahtisaari Plan, in important tasks such as the demarcation of the Kosovo-Macedonia (still referred to as the Former Yugoslav Republic of Macedonia) border, the decentralization initiative, municipal elections and protection of religious and cultural heritage to name a few. It reflects upon the successes and challenges (particularly in the divided northern region of Mitrovicë/Mitrovica) in the execution of the Ahtisaari Plan, a unique blueprint that did not have UNSC sanction and yet provided adequate political basis for a state-building enterprise in Kosovo. Chapter I studies the early vision for the ICO by its original planners and the set-up phase post February 2008. The Chapter focuses on the coming into agreement on the flag and national anthem, development and passage of laws in the Kosovo Assembly and the setting up of local self- government arrangements that would later be enhanced in a

2 Building a State and Exit decentralization effort in several municipal areas. The Chapter also briefly reviews the in-house challenges in the early phase of the set-up of the ICO. Chapter II takes a close look at the coming into force of the Kosovo Constitution, and the transition from the United Nations Interim Administration in Kosovo (UNMIK) to a European Union (EU) presence on the ground. It analyzes the ambivalent start of a EU mission (EULEX) deployment, challenges to institution building and the UN’s six-point strategy that attempted to facilitate, in agreement with Belgrade, the EU’s deployment of the EULEX mission on all parts of Kosovo’s territory including its predominantly Serb populated Northern part. Chapter III provides an overview of the core tasks catalogued in the Ahtisaari Plan and discusses the setting up of new municipalities, border demarcation of the Kosovo- Macedonia (FYROM) border, municipal elections and the setting up of the Constitutional Court and selection of its judges. This Chapter also describes Kosovo’s diplomatic efforts to reach out to the larger global community as it dispatched diplomatic missions in key countries of the world, lobbied for more recognitions of its unilateral declaration of independence and joined the International Monetary Fund (IMF) and the World Bank (WB). The central theme of Chapter IV is the lead-up phase to the final ICJ advisory opinion and the political crisis that followed later on. It sheds light on challenges in municipalities with majority Kosovo Serb population, the ICJ verdict and its aftermath, the resignation of the President of Kosovo and the dissolution of the Kosovo Assembly and,

3 International Civilian Office finally, the Dick Marty report on human trafficking in Kosovo. Chapter IV also lays out the basis of ICO’s defining an exit strategy and downsizing plan, given its time and task bound mandate as foreseen in the Ahtisaari Plan. In Chapter V, we examine the dual-hat mandate of the ICR/EUSR and review the extent to which it proved to be a useful tool for diplomatic and political engagement in Kosovo. The ICR/EUSR explains this role in his own words and points to the space where it ceased to assist him and where he ceded space to the EU to formalize leadership chains of command for a longer-term presence in the region. We examine the ICR/EUSR legacy in Kosovo as well as the record of the Quint (comprised of France, Germany, Italy, United Kingdom and United States) and its partners in this transitional phase in the international presence in Kosovo. Chapter VI debates the pros and cons of an ICO-style intervention for future deployments in global hotspots in this age of financial austerity. We look at the ICO in the context of other organizations such as the Office of the High Representative (OHR) in Bosnia and Herzegovina (BiH) and long-term missions such as those deployed by the UN. The US-EU relationship in similar Euro-Atlantic endeavors is also examined. We conduct an honest assessment of the successes and failures of the ICO and its specific role during a transitional phase for Kosovo. We remain particularly critical of the paucity of resources in a time and task bound mission and suggest ways that these can be maximally used for future presences. We present the argument that given an era of global austerity and debate about the usefulness of intervention in several donor countries in the world, the ICO

4 Building a State and Exit model may prove to be a useful alternative to long-term engagement in troubled regions. Success would, however, only be ensured when for a stay of limited duration, resources and staff are sensibly and adequately supplied by the sponsors of the intervention. Chapter VII discusses the decision-making process leading up to the ending of ICO supervision of Kosovo. Chapter VIII is a catalogue of CSP progress in the final years. Chapter IX elaborates on how the policy of ending supervision was managed and operationalized. In Chapter X the administrative and technical aspects of ending the mandate are discussed, while Chapter XI reviews reactions and realities of ending supervised independence. 

I: THE BEGINNING

Previous experience in the region had convinced the planners of the ICO as well as the Quint and Contact Group members (France, Germany, Italy, United Kingdom, and the United States, plus Russia in the Contact Group), that a lighter presence was needed in Kosovo, following a decade- long presence of the United Nations Interim Administration Mission in Kosovo (UNMIK). There was increasing fatigue and impatience in Kosovo for independence and self- determination, and the international community realized that a reconfiguration of its presence was imperative if peace was to be sustained within Kosovo and the region. Troika negotiations and their aftermath seemed to suggest a “more than Skopje but less than Sarajevo”, formula, emanating from the complicated picture that Kosovo presented at this stage. It was still too early to have a fully-fledged European Union (EU) office as in Macedonia, but a protectorate solution as was extended to Bosnia and Herzegovina was

Building a State and Exit also not viable at this time.2 Following twenty-five rounds of negotiations between the Ahtisaari team and Belgrade and Pristina, two things were clear. One, that Kosovo was to have supervised independence with a European perspective and, two that this would be a trans-Atlantic endeavor with the EU and the US in the lead and other interested countries participating as they deemed fit. Initially envisaged as a smaller and lighter international presence, the ICO grew in scope and structure once it became clear that agreement on Kosovo’s status by all 27 members of the EU could not be reached. President Ahtisaari had understood since 2007 that a continued UNMIK presence would be untenable and that independence from Serbia was the only way forward, given that all other options had been exhausted. He had, however, visualized a smaller presence than what was eventually established, given the complicated political dynamics between key political players that would support Kosovo in its newly independent incarnation.3 The important role played by the United States of America was recognized and thus the ICO was conceived of as an EU-US office with other countries invited to participate. The head of the ICO, the International Civilian Representative, was to be a European with an American Senior Foreign Service Officer to be appointed as Deputy. Pieter Feith, a senior diplomat from The Netherlands and with extensive experience of the Balkans, was formally appointed International Civilian Representative, or ICR for short, in February 2008.

2 Interview with Stefan Lehne, Political Director, Austrian Ministry of Foreign Affairs, Vienna, December 2010. 3 Ibid.

7 International Civilian Office

The ISG was initially comprised of fifteen members, namely Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Hungary, Italy, Slovenia, Sweden, Switzerland, Turkey, United Kingdom and the United States. These were the initial stakeholders involved at the status negotiations and the first set of nations to immediately recognize Kosovo’s independence. In the months following February 2008, other member states recognized Kosovo and resolved to assist in its nation- building exercise offering various forms of assistance including qualified professionals to advise the Kosovo authorities. These new members sent in a formal request for inclusion in the ISG and were given approval to join. The final count of the ISG membership would include the following states: Austria, Belgium, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Slovenia, Sweden, Switzer- land, Turkey, United Kingdom and the United States.4 The ICO Planning Team (PT) concluded its mandate in April 2008. It was tasked with establishing administrative structures, keeping in view the capacities that would be needed to implement the CSP annexes, of the key units that would be part of the ICO (Administration, Community Affairs, Economic and Fiscal Affairs, Legal, Press and Public Information, Political, Security) as well as a team supporting the EUSR.5 The ICO/PT identified premises for the future

4 More information on ISG meetings can be found at the post-ICO website at www.ico-kos.org. 5 For legal basis of ICO/EUSR set-up also see European Council Joint Action 2006/623/CFSP on the establishment of an EU Team for

8 Building a State and Exit

ICO set-up, ascertained security and other logistical requirements and went to work putting the fundamental structures of the future presence in place. While focused on setting up the future ICO, the ICO/PT actively engaged with the Kosovo authorities as they established new ministries and advised on all aspects of day-to-day governance, as well as on long-term policy areas that would help Kosovo subsist as a viable sovereign state. Technical discussions ensued between Kosovo and international experts on the provisions of Kosovo’s new Constitution and key CSP laws that needed to align with the CSP. To this end, a Constitutional Commission (henceforth the Commission) was set up under the leadership of two new Deputy Prime Ministers of Kosovo, legal experts from within the Kosovo government and legal fraternity, and with ICO/PT participation. The Commission had several key meetings in which every effort was made to ensure that the early drafting of the Constitution and basic laws that the CSP defined as crucial maintained momentum. The ICO/PT identified about 40 laws, directly or indirectly derived from the CSP, for scrutiny prior to their adoption in the Kosovo Assembly. The caretaker Kosovo government, as was evident in the Constitutional process, worked closely with all of its partners in the process and displayed its overall commitment to the Ahtisaari-compliant legislation for Kosovo. The ICO/PT report on this matter concluded that, “On 12 December, 2007, the caretaker preparations of a possible international civilian mission in Kosovo, including an EUSR component, as amended and extended by Council Joint Actions 2007/623/CFSP of 27 March 2007 and 2007/15/CFSP of 16 July 2007.

9 International Civilian Office

Government adopted a decision providing for a special procedure to be applied for the preparation of all status-related laws…. The decision for the first time also formally enhanced the concept of the ICO/ PT, entrusting it with the ultimate control over the final adoption of the 31 laws.”6 In a nutshell, the ICO/PT had a four-point approach as far as Kosovo’s legislative agenda and its drafting process was concerned: provide technical assistance in the constitutional and legislative drafting process; verify compliance with the Ahtisaari proposal once the draft laws were finalized by the Kosovo authorities; ensure that the political opposition and minority communities were given a real chance toward contributing to the drafting process; establish an early warning mechanism capable of detecting potential problems and solving them without the use of formal powers.7 Based on ICO/PT advice and support the Kosovo Assembly adopted 19 laws that came into effect on 15 June 2008, following the entry into force of the Constitution. This initial package included laws on Diplomatic Immunities and Privileges, Kosovo Police, Kosovo Police Inspectorate, Citizenship, Establishment of Special Protective Zones, Local Self Government, Municipal Borders, Travel Documents, Use of State Symbols, Ministry of Foreign Affairs, Civil Aviation, Ministry for the Kosovo Security Force, Kosovo Security Force, Rights of Communities and their Members, Municipal Finance, Jurisdiction, Case Selection and Case Allocation of EULEX Judges and Prosecutors, Kosovo Special Prosecutor’s Office,

6 Ibid. 7 Ibid.

10 Building a State and Exit

Kosovo Security Council and Public Financial Management and Accountability. Other laws, in various stages of preparations would be taken up once the ICO was in place. The ICO/PT also had the task of establishing close working relationships with a network of actors already in- theatre. These included the UNMIK and its senior staff, the NATO force (KFOR), the Organization for Security and Cooperation (OSCE), the European Commission Liaison Office (ECLO), the European Union Preparation Team (to prepare for launch of the EU’s largest Rule of Law mission, EULEX), all diplomatic missions and representations and civil society as a whole. In addition, the ICO/ PT also set up offices in Mitrovicë/Mitrovica and an EUSR office in Belgrade. Simultaneously, the ICO/EUSR PT also focused attention on an extensive public outreach campaign. The office in the divided city of Mitrovicë/Mitrovica, as envisaged in the CSP, would specifically focus on accessing members of the Serb community in the north and ensure their inclusion and participation in mainstream Kosovo life. On the selection of symbols for the envisaged new state of Kosovo, the ICO/PT participated in the Commission that approved the design of the flag and seal in compliance with the CSP. A national anthem was also approved along the lines of the CSP and keeping Kosovo’s multi-ethnic composition in view.8 These were formalized following the February 17 declaration of independence. The critical process that required the most intensive efforts on the part of the ICO/PT was preparing for the

8 Council of the European Union, Secretariat, Fifth Report of the ICO/EUSR Preparation Team, February-April 2008, Brussels, p. 12.

11 International Civilian Office enhancement of the EU presence and the deployment of EULEX, and the reconfiguration of UNMIK. The ICO/PT final report highlighted this point: “Discussions were intensified in the course of 2008 with UNMIK and EUPT – as well as New York and Brussels – on the potential reconfiguration of UNMIK’s presence in light of developments on the ground. These ongoing efforts seek to ensure there will be no future duplication of effort, to coordinate the closing down of UNMIK Pillar IV, and facilitate the EULEX deployment on the ground”.9 The ICO/PT deployment and early work plan were not without challenges. The disappointment of not having an UNSC resolution backing for the ICO and therefore no consensus by the EU on Kosovo’s status did not provide the ICO/PT with the clarity of vision that it needed at the initial stages. Another challenge, which in turn had repercussions for the follow-on ICO/EUSR presence, was the inacces- sibility of the ICO office in north Mitrovicë/Mitrovica following a bomb explosion in the vicinity of the ICO/PT office on 14 February 2008 and violence that erupted in March 2008. The office was relocated to the southern part of Mitrovicë/Mitrovica where it remained until the ICO closed.10 And finally, the ICO/PT had to deal with the timely recruitment of competent staff to fill the rapidly evolving vacancies, as well as administrative and logistical problems. Again, clarity and guidance sought by this early team was not always available and forthcoming which resulted in a

9 Ibid, p.13. 10 ICO/EUSR PT Report, Council of the European Union, 28 April 2008, Brussels, p. 15.

12 Building a State and Exit somewhat chaotic start of the ICO operation that contained horizontal layers of staffing and lacked an effective chain of command structure. More of this will be addressed later in this report. The work of the ICO was launched in February 2008 following the unilateral declaration of independence by Kosovo on 17 February 2008. While it had been evident from the time of the Troika negotiations that Serbia’s acquiescence in the status process would not be forthcoming, it became rapidly clear that Belgrade would challenge the very basis of the creation of the ICO as a threat to Resolution 1244 that established UNMIK in Kosovo in 1999. Indeed, in a letter to the UN Secretary General Ban, Serbia’s Foreign Minister Jeremic launched a written protest indicating that the “ISG is unlawful and clearly constitutes an intention to circumvent the UNSC and its Resolution 1244, as well as undermine UNMIK which was the only body with full legitimacy in Kosovo.”11 Against this background the ICR inherited a rather complex dynamic on the ground as he assumed charge in Pristina. The soon to be formed Kosovo government had deemed UNMIK a liability that no longer served a purpose in the newly independent state and had outlived its usefulness. The EU was on the verge of launching its most ambitious security and defense mission, EULEX, an arrangement that would not see Belgrade’s cooperation anytime soon. The ICR and his team began work in full earnest establishing relationships with governmental and inter-

11 “Serbia Lodges Protest with UN Secretary-General over ISG Appointment”, VIP Daily New Report, March 3, 2008, Belgrade. 13 International Civilian Office national partners for what was to be a new era for Kosovo, and in what was to be a partnership rather than admin- istering manner. The situation deteriorated with violence erupting in north Mitrovicë/Mitrovica on 17 March, 2008 as members of the Serb community took over an empty UN courthouse building protesting Kosovo’s declaration of independence. UN Police and KFOR soldiers stormed the courthouse building in what was to be a violent confrontation that lasted several hours. UN and Kosovo Police (KP) as well as KFOR with- drew from the north following this violent episode and created a security vacuum in an area that was rampant with criminal activity and urgently required continued international presence. This period tested the dynamics between UNMIK, the newly established ICO, KFOR, KP and other international actors monitoring a tense and uncertain situation. The international community did not speak with one voice or find unanimity on the most appropriate approach to the north and prevent further destabilization of the situation. Meanwhile, work had to go on at the ICO. The first three months of the ICO was an exceptionally busy period as in a supporting capacity it began to assist the Kosovo government on making final preparations on the Consti- tution and CSP related legislation that would be passed and adopted in the Kosovo Assembly. On 2 April 2008, the ICR certified the draft Kosovo Constitution in accordance with the CSP, and the Kosovo Assembly adopted the Constitution

14 Building a State and Exit on 9 April 2008 with a view to its entry into force on 15 June 2008. The Joint Technical Commission (JTC) met on 1 April 2008 to begin discussions on the demarcation of the border between Kosovo and the Former Yugoslav Republic of Macedonia (FYROM) with the ICO/EUSR acting as a facilitator. The ICO also developed initial relationships with the Kosovo Serb members of the Kosovo Assembly to push forward with the core tasks of the CSP, decentralization and protection of religious and cultural heritage.12 The ICR remained opposed to the idea of Kosovo Serbs voting in Serbia’s Parliamentary elections of 11 May 2008 and supported UNMIK’s position that such elections would be illegal and obstruct efforts to implement the CSP. In his briefing to the ISG members in its meeting of 17 April 2008 the ICR reiterated the red lines that he and the ISG had approved in their inaugural meeting of 28 February 2008: respect for UNMIK and KFOR mandates, freedom of movement for all Kosovo citizens, no violence and no visible Serb parallel security structures on Kosovo’s territory.13 In view of the rapidly evolving developments on the ground, and the increasingly diminished role of UNMIK, Secretary-General Ban in his report dated 12 June 2008, informed the Security Council of his intention “to reconfigure the structure and profile of the international civil presence to one that corresponds to the evolving situation in Kosovo and that

12 See CSP Annex III on Decentralization and Annex V on Protection of Religious and Cultural Heritage. 13 Introduction and Update by the ICR/EUSR, minutes of the ISG meeting, 17 April 2008, Vienna, Austria.

15 International Civilian Office enables the European Union to assume an enhanced operational role in Kosovo, in accordance with resolution 1244 (1999).”14 UNMIK recognized that it needed to step back for the new international presence to take charge and be effective; and, as a senior UN official aptly phrased it, that a ”parallel universe” now existed in Kosovo. In the first few operational months of its life, the ICO continued to be afflicted by some of the same problems that had plagued the ICO PT. There were ongoing delays in staff recruitment as newly appointed unit heads determined staffing requirement, and until these were assessed it was impossible to quickly establish an operating budget. Early on in March 2008, a Mandate Implementation Plan (MIP) was drawn up that established timelines for the completion of core CSP tasks and these were then translated into the graphic form of a Matrix. The Matrix was established as the tracking document of CSP implementation and was submitted to regular capitals- and Pristina-level meetings of the ISG. Kosovo grappled with the new reality of statehood and the ICO/EUSR with establishing the only pro-status organization in Pristina that was to support Kosovo’s new aspirations and to help it prepare for eventual EU accession and participation in regional and transatlantic structures. As it grew in numbers and visibility the ICO defined its operational concept and strategic goals: “The ICO has a mandate of limited duration. The ISG will conduct a review of the organization in February 2010, at the two-year mark of our existence. The CSP makes clear the meaning of the exercise –

14 Letter of the UN Secretary General Ban Ki Moon to President Fatmir Sejdiu, 12 June 2008.

16 Building a State and Exit namely, ‘with a view to gradually reducing the scope of the powers of the ICR and the frequency of intervention.’” Thus, the ICO would not require budgetary support indefinitely.15 Inherent in the operational planning of the organization was a built-in exit strategy, also envisaged in the CSP, and this would continue to be defined and studied as the organization moved into full drive and into the next phases of the maturation of its CSP mandate. 

15 “ICO Operational Plan: Strategic Overview”, internal document, February 2008.

II: THE CONSTITUTION

On 17 February 2008 the elected representatives of Kosovo took the step of declaring Kosovo an independent and sovereign state and committed themselves without reservation to the implementation of the CSP. These commitments were embedded in the Declaration of Independence, itself.16 17 However, in the same declaration the Kosovo authorities had also committed to acting within the principles of international law and UNSC resolution 1244.

16 Introduction, Report of the International Civilian Office to the International Steering Group, 27 February 2008, Vienna, Austria. 17 “We accept fully the obligations for Kosovo contained in the Ahtisaari Plan, and welcome the framework it proposes to guide Kosovo in the years ahead. We shall implement in full those obligations including through priority adoption of the legislation included in its Annex XII, particularly those that protect and promote the rights of communities and their members.” (Declaration of Independence of the Republic of Kosovo, Article 3.) The Declaration also added: “We also invite and welcome an international civilian presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led rule of law mission.” (Article 5.) This reference was to the ICO and EULEX. 18

Building a State and Exit

Thus it was a complicated dynamic that existed on the ground as the ICR took charge of the ICO as well as being the coordinator of EU presences. It was unclear as to who was in control. According to resolution 1244, the Special Representative of the UN Secretary-General (SRSG) of UNMIK was the boss. If Kosovo was independent, the last word on governing the country should lie with the members of the elected government, but, on the other hand, the declaration welcomed the ICO, whose head could, should he see fit, dismiss them.18 In the first ten months of its existence as the supreme legislative body, the Assembly of Kosovo passed over fifty laws directly related to the implementation of the provisions of the CSP. Included among these legislative provisions were acts to decentralize governing authority to Kosovo’s municipalities, to build Kosovo’s governing capacity and to safeguard the rights and freedoms of Kosovo’s communities, including through the protection of religious and cultural heritage.19 As it continued to build staff strength internally, the ICO began working closely with Kosovo authorities on the key areas of CSP implementation, beginning with the earliest implementing laws related to the critical process of decentralization, the core area defined by the CSP. The laws on Local Self-Government, on the Boundaries of Munici- palities, on Local Government Finance, Local Education and

18 Tim Judah, Kosovo: What Everyone Needs To Know, Oxford University Press, 2008, 2008, pp. 145. 19 Report of the International Civilian Office to the International Steering Group, 27 February 2009, Vienna, Austria.

19 International Civilian Office

Local Health codified the central principle of decentralization—that the interests of democracy and efficacy are best served by moving governing capacity closer to citizens.20 ICO worked closely with the Government of Kosovo’s Inter-Ministerial Working Group on Decentral- ization to determine the modalities for the formation of Municipal Preparation Teams, tasked with building the governing infrastructure of the new municipalities. Another set of CSP-implementing legislation that the Assembly passed in 2008, assisted fully by the ICO, were designed to establish the institutions necessary to exercise the full measure of sovereignty. Critical among these were the Law on the Kosovo Security Council, the Law on the Ministry for the Kosovo Security Force, the Law on Service in the Kosovo Security Force, the Law on the Civil Aviation Authority and the Law on the Establishment of the Kosovo Intelligence Agency.21 On the protection of community rights and religious and cultural heritage, at the very heart of the CSP and enshrined in the Kosovo Constitution, the Assembly of Kosovo passed the Law on the Protection and Promotion of Rights of Communities and their Members and the Law on the Establishment of Special Protective Zones. The ICO assisted in the setting up of the Communities Consultative Council (CCC), which was established in accordance with the Constitution of Kosovo and by Presidential decree. It

20 Ibid. 21 As reported by the International Civilian Office to the International Steering Group meetings of 5 June 2008, 27 August 2008, and 18 October 2008.

20 Building a State and Exit began deliberations on December 2008 and was mandated to address all communities-related matters. The ICO worked closely with the EUSR office to preserve Kosovo’s rich religious and cultural patrimony, including but not limited to the sites of the Serbian Orthodox Church. An Operational Order, designed in close cooperation with the ICO, was to ensure a smooth withdrawal by KFOR and assumption of duties by the Kosovo Police (KP) in the protection of Special Protective Zones. The ICO engaged closely with the Joint Technical Commission (JTC) to discuss the border demarcation between Kosovo and the Former Yugoslav Republic of Mace- donia (FYROM). The JTC agreed on the location of the placement of all the primary border stones. The future development of a functioning rule of law sector would be the responsibility of the soon-to-be- launched ESDP mission, EULEX, throughout the country. EULEX police, judges, prosecutors and customs officials would support Kosovo’s efforts in strengthening the rule of law. The Assembly adopted a Law on the Constitutional Court in late 2008, also setting up an interim mechanism for registering prospective cases for this court until it was fully established. The process of selection of national and international judges was launched with international judges being appointed in consultation with the President of the European Court of Human Rights. Several other areas of statehood were beginning to take effect in Kosovo in the year that followed the Declaration of independence. Recognitions stood at around fifty-five by the end of 2008. Citizens of Kosovo had been

21 International Civilian Office issued identity documents and well as passports that were considered valid by all states that had recognized Kosovo’s statehood. The Law on the Ministry of Foreign Affairs was one of the first to be adopted by the Assembly, followed by the Law on the Foreign Service of the Republic of Kosovo and the Law on the Consular Service in Diplomatic and Consular Missions of the Republic of Kosovo. These laws provided the legal framework for the establishment of Kosovo’s first consular and diplomatic presences abroad. Kosovo’s first foreign missions, to be headed by ten Chargé d’affaires, were announced in August 2008. The ICO supported the build-up of the Ministry of Foreign Affairs (MFA) by establishing the External Relations Working Group, which included officials from the MFA and ISG representatives. Kosovo received several foreign dignitaries in its first year since the Declaration of independence, from the region and from other recognizing states. In July 2008, with full support and backing of the ICO, the Republic of Kosovo applied for membership in the International Monetary Fund and the World Bank. A major challenge for the Government of Kosovo in its first year was how best to address the needs of members of the Kosovo Serb community. There was no effective dialogue between members of the majority community with their Kosovo Serb counterparts. Kosovo Serb deputies in the Kosovo Assembly had boycotted all events and meetings around the Declaration of independence as well as the entry of force of the Kosovo Constitution, in solidarity with Belgrade’s vociferous opposition to the creation of an

22 Building a State and Exit independent Kosovo. The ICO reported to the ISG members in late 2008: “The ICR, primarily in his capacity as the EUSR, is facilitating a round-table between key government ministers and Kosovo Serb representatives, which discusses how to ensure the effective implementation of the CSP with regards to the needs of the Kosovo Serb community.”22 With its Declaration of independence on 17 February 2008, the Government of Kosovo had assumed executive authority over all matters and had rendered UNMIK ineffective and non-operational. The ICO was now the supervising body of CSP implementation, but with no legal sanction from the UNSC and with Resolution 1244 providing the legal umbrella for EULEX deployment. The intra-EU complications of resource mobilization and non- recognition of Kosovo by five of its members created delays in the deployment of EULEX during its initial months of operational capability. Added to this was EULEX’s inability to penetrate the north, unless, as Serbia insisted, it was done under UN and Resolution 1244 auspices. The security vacuum in the north, despite an overall calm situation following the declaration of independence, became of grave concern to the international community and it was clear that a resolution to the current impasse was of utmost importance. The Government of Kosovo continued to reiterate that the ICO was its current and future partner in the implementation of the CSP, and that it would extend the

22 Report of the International Civilian Office to the International Steering Group, 27 August 2009, Pristina.

23 International Civilian Office necessary cooperation to EULEX in its technical role. The ICR reported the following facts to the ISG members on 12 September, 2008: “As a consequence of the entry into force of the Constitution, UNMIK’s reconfiguring has been accelerated. The fact of not being able to officially handover charge to either ICR/EUSR or EULEX has put some strain on UNMIK’s relations with the Government. The SRSG is therefore quickly losing his ability to influence Kosovo institutions. The situation on the ground is not helped by the fact that KFOR, OSCE and the Council of Europe have instructions not to work directly with the Government, the ICR/EUSR and EULEX.”23 The envisaged 120-day transitional period of UNMIK drawdown and ICO/EUSR and EULEX build-up in fact became a drawn-out period of several months. The UN, although in the process of reconfiguring its presence, was not disengaging rapidly enough for EU presences and the ICO to take full charge. A crisis for the ICO erupted in late 2008 when the UN conducted a series of meetings with Serbian authorities on what was deemed as a six-point plan for the deployment of EULEX in the whole territory of Kosovo. In effect, this was a plan for a time-limited and consensual transition of authority in the areas of police, customs, justice, transportation and infrastructure, boundaries and Serbian patrimony. The six-point approach foresaw “practical arrangements” between Serbia and Kosovo that would remain in effect until the EU presence was fully deployed and would give access to EULEX deployment in

23 ICR’s address to members of the International Steering Group, 12 September 2008.

24 Building a State and Exit the north under a status-neutral resolution 1244. Secretary- General Ban noted: “My Special Representative has also consulted the authorities in Pristina. They have clearly expressed that they do not accept the results of the arrangements….in addition to rejecting the results of the dialogue, they favored the quick deployment of EULEX and would cooperate with EULEX on its deployment throughout the territory of Kosovo…”24 The Kosovo authorities were resolute in their rejection of the six-point plan which they saw as a threat to their newly-won independence and territorial integrity. The President and Prime Minister both assured their citizens that their rejection of the plan would not imperil their relations with western powers or those that had recognized Kosovo’s independence. Intensive efforts by the Quint and the ICR notwithstanding, the Kosovo government persisted in its rejection of the UN proposals and successfully managed to have their position in the form of a four-point statement annexed to the Secretary General's report to the Security Council. UNMIK had no choice now but to significantly reduce its presence in Kosovo. It was left with two tasks that would be undertaken while resolution 1244 was still relevant for Kosovo. It was to a) provide political reports to its headquarters in New York and b) support Kosovo in assuming its international obligations in regional and multilateral fora. Meanwhile, Mr. Feith, in his capacity as the EUSR, and as directed by the Council Secretariat, continued to provide political guidance to the EU presences in Pristina,

24 Ibid, pp 11-12.

25 International Civilian Office namely the European Commission Liaison Office (ECLO) and the slow-paced deploying EULEX mission. Following the demise of its six-point plan, informal contacts went underway between UNMIK and ICO on transfer of competencies that would be in the remit of the ICO. An internal memo on the transitional phase indicated this clearly: “Discussions on different options are ongoing within the UN and it should be noted that UNMIK is cooperating with the ICO on these issues. A regular dialogue at the technical level is already underway and is to be supplemented by discussions at a higher level in Kosovo.”25 These early months indicated the ICO’s strategic role as Kosovo institutions took charge of their own future and began to shape a state as envisaged and pledged in the Kosovo constitution. The ICR was determined that the ICO must remain focused on ensuring the early implementation of the core provisions of the CSP. The Public Information unit began familiarizing the public with the ICO and its role as implementer of the CSP. In the first year following the declaration of independence, the north remained a problem for the international community. Lack of access by the EU and the ICO at this early stage was a precursor for later challenges. KFOR and KP were reluctant to assume a permanent presence in the north, EULEX was not fully deployed, ICO was not present at all, and UNMIK was reconfiguring and therefore withdrawing its presence as well. The situation was ripe for

25 ICO internal memo, 23 November, 2008.

26 Building a State and Exit what could have been a much more volatile and dramatic security situation in this area and the fact that escalation could be avoided constituted one of the limited successes of the international presences following Kosovo's declaration of independence. In its first year, the ICO had designated the entry into force of the Constitution, passing of relevant legislation, preparations for decentralization, community-related issues and protection of religious and cultural heritage as key areas for implementation. This early consolidation would be followed by the transparent selection of key state officials, ensuring that the Assembly of Kosovo assumed greater responsibility for political debate and decision-making, reform of the economy and improved standards of governance of all publicly-owned enterprises with a view to their eventual privatization. 

III: REFORM AND STABILITY

Following the first year of the ICO’s creation, the ICR outlined three core priorities for this second year: reform, reconciliation and stability. In an op-ed piece in early 2009 the ICR shared his vision for the year ahead with the people of Kosovo and the wider world: “In myriad ways, 2009 must be a continuation of 2008. Kosovo’s leaders must continue to fight against corruption, to strengthen the rule of law and the foundations of a democratic society and to build a strong economy by attracting foreign investments and working toward membership in international financial institutions. But, unlike 2008, 2009 will be the first year to begin with the will of Kosovo’s people for their future fully exercised by their leaders.”26 The first significant step in the area of the reform of the justice system was the setting up of the Constitutional Court in January 2009. As stipulated in the CSP, the Consti- tutional Court was to be composed of nine judges, of whom six would be Kosovar nationals and three international

26 Pieter Feith, “Kosovo’s New Dawn”, Koha Ditore, January 2, 2009. 28

Building a State and Exit judges. The ICO provided consistent assistance and support. The national judges were appointed in June 2009 and the international judges in September 2009. The ICO was involved in the recruitment of the international judges together with the president of the European Court of Justice as required in the CSP. Additionally, the ICO recruited support staff (legal advisors and translators) to assist the work of the Court. The ICO also worked with Kosovo authorities in the selection of the six national judges, with due regard to gender balance. The challenge lay in ensuring that an initially high-performance Court would convert into one holding the highest judicial standards for a sustainable length of time. The Constitutional Court, as the final custodian and interpreter of the Kosovo Constitution has delivered a number of landmark judgments on CSP compliance (Kurtisi v. The Muncipal Assembly of Prizren on the logo issues), and the case against the former President of Kosovo, Fatmir Sejdiu (Rrustemi v. Sejdiu) that established that in concurrently holding his party’s chairmanship and the Presidency, the President was in violation of the Constitution and must resign from his post. Analysts of the Constitutional Court give it an optimistic appraisal for the future: “While its long-term effectiveness remains to be proven, the experience of the Kosovo Constitutional Court offers important lessons for transitional justice and institutional capacity building. The structural design and careful planning of the Constitutional Court, its composition, and its mandate represent a concerted effort to empower local judges and to establish rule of law in a

29 International Civilian Office post-conflict context…While not without its limitations, Kosovo’s hybrid experimentation provides tentative hope that prudent institutional design and implementation can forge a path of viability, collaboration and legitimacy.” Other areas of the justice sector where the ICO played a critical role included providing guidance on the re- appointment and vetting process for judges and prosecutors conducted by the Independent Judicial and Prosecutorial Commission (IJPC), a function that has since been passed on to the Kosovo Judicial Council.27 ICO’s key equity here was to ensure the participation by members of the minority community on the bench and in the prosecutorial service – a requirement that remained an elusive goal throughout. The ICO also played a key role in the drafting of the Law on Courts, Law on Prosecutors’ Offices, Law on the Kosovo Judicial Council, Law on the Temporary Kosovo Judicial Council and Law on the Kosovo Prosecutorial Council. Finally, the ICO provided support in all deliberations that ensued between Kosovo and its legal counsel on the advisory opinion that was to be forthcoming in July 2010. Advice was provided in -house to the ICR and the DICR, as well as to the Kosovo legal team and that of the representing legal counsel before the International Court of Justice. Decentralization is at the core of the CSP and it became front-and-center in the ICO’s reform and reconciliation efforts in 2009. The CSP spells out the aims of the decentralization initiative at the outset of Annex III: “to address the legitimate concerns of the Kosovo Serb and

27 Comprehensive Status Proposal, Annex 1, Article 6.5. p.15.

30 Building a State and Exit other Communities that are not in the majority in Kosovo and their members, encourage and ensure their active participation in public life, and strengthen good governance and the effectiveness and efficiency of public services throughout Kosovo, an enhanced and sustainable system of local self-government in Kosovo shall be established…”28 The actual implementation of the process began with the selection of the Municipal Preparation Teams (MPT’s) as a first step toward the setting up of new municipalities. The ICO selected and assisted MPT’s in the early-set up and establishment and assisted in the successful conduct of elections in 2009 and 2010 in the new municipalities of Gra- čanica/Graçanicë, Klokot-Vrbovac/Kllokot-Vërboc, and Ra- nilug/Ranillug and in the expanded municipality of Novo Brdo/Novobërdë, and Parteš/Partesh. The period leading up to the elections was contentious with the Quint being divided on the number of new municipalities that should be created. The issue was one of tactics more than of substance as projections of the number of Serbs expected to come out to vote in the municipal elections varied among the Embassies. The ICO was instrumental in obtaining consensus on the matter and the 5+1 formula described above was finally agreed to as the best way forward. And as it happened, sufficient numbers of Serbs participated to warrant the establishment of the new municipalities. At this time, the plan for an MPT in northern Mitrovicë/Mitrovica was also under consideration. Elections in the north were deemed to be a lot more complicated and the ICO engaged actively in all aspects of the planning of future elections in

28 Comprehensive Status Proposal, Annex III, introductory paragraph.

31 International Civilian Office this contentious region of Kosovo. Once the new municipalities were up and functioning, the ICO continued to assist with the drafting of the legislation on local self-government, ensuring that new legislation and amendments were in full compliance with the CSP provisions and the rights of the municipalities. The ICO also enabled the new municipalities taking over the competencies of the mother municipalities as well as from the central government. The ICO co-chaired the Inter- Ministerial Group on Decentralization (IGD) and its sub- working groups – whose purpose was to ensure that all sectors of Government contributed to the complex process of decentralization, and not just the MLGA. The ICO also facilitated donor coordination and capacity building in all areas of self-governance in the new municipalities. Decentralization efforts, largely led and coordinated by the ICO, were a significant turning point in encouraging the integration of Kosovo Serbs south of the River Ibar into the fabric of mainstream Kosovo civic and political life. The European Commission Progress Reports of 2009 and 2010 have given high marks to decentralization as a political step in the right direction, amidst a myriad challenges that the young state continued to face.29 However, despite early successes the new municipalities continued to face challenges. Full transfer of delegated and enhanced competencies to the new municipalities, particularly in the areas of education and health, did not follow immediately and may take a long time

29 European Commission Progress Report for Kosovo, 2009.

32 Building a State and Exit to be realized. At one point the GoK actively considered re- centralizing some competencies, such as fire-fighting and civil registry, and a significant portion of the ICO’s work was to explain and hold the “CSP line” on decentralization. In the very important area of local finance, the new municipalities do not have the autonomy outlined in Annex III, Article 8 of the CSP which provides that: “Municipalities shall have the right to determine the structure and size of their own budgets covering tasks falling within their competencies. Central legislation shall set forth the basic public financial management and accountability requirements applicable to all municipalities, in accordance with international standards.”30 Progress, albeit slow, was also evident in 2009 in the ICO’s relationship with the Serbian Orthodox Church (from here on the Church) and by extension the relationship of the Church with the local Kosovo authorities. The CSP foresaw the establishment of an Implemen- tation and Monitoring Council to facilitate contacts and dispute settlement between the Church and local authorities. However, this mechanism could not come into being as a result of Serb refusal to cooperate in implementing the CSP. The ICR therefore proposed to appoint the Greek Ambassa- dor in Pristina as the EU facilitator for the preservation of religious and cultural heritage in Kosovo. This was accepted by all sides and once appointed he assumed the functions of the IMC (as envisaged in Article 4 of the Law on Special Protective Zones (SPZ’s). The ICO furthermore assisted in

30 Comprehensive Status Proposal, Annex III Article 8.1.

33 International Civilian Office the drafting of laws for the special protective zones in the historic center of Prizren and the village of Velika Hoča/Hoça e Madhe and, in close partnership with other international partners, established operational procedures in 2009 for the progressive takeover of the security of about 20 Church sites by the Kosovo Police ( KP) from KFOR. Another achievement in 2009 was the successful conclusion of the border delineation and demarcation between Kosovo and Macedonia (FYROM). As alluded to earlier, the ICO remained actively engaged in the work of the JTC and a team led by the US Deputy ICR helped in resolving any outstanding technical issues. The ICO’s role in the border demarcation process was crucial and indispensable: It made mutual recognition of Kosovo and Macedonia (FYROM) possible, helped foster good- neighbourly relations, border security and stability in the border region and laid the foundation for interactions in trade, tourism and other ventures. The Swedish Presidency of the EU hailed the concluded demarcation exercise as…”an encouraging sign of responsibility and maturity when mutually acceptable solutions are found to outstanding issues between neighbours.”31 Economic and fiscal reform also remained high on the ICO’s agenda in its second year of existence. The CSP mandated the ICO to ensure that Kosovo established an “open market economy with free competition” and pursued an “economic, social and fiscal policy necessary for a sustainable

31 Inside Brussels XV Public Affairs in the New Europe, “EU hails Macedonia and Kosovo for solving border quarrel.” 19 October, 2009.

34 Building a State and Exit economy”. 32 More specifically, the ICO had four main areas of focus and responsibility: 1) Budget consultations with government and other international agencies; 2) Affirmative powers i.e. direct appointment powers in the Privatization Agency of Kosovo (PAK), Kosovo Pension and Savings Trust (KPST) and the Kosovo Property Agency (KPA); 3) Consent powers with respect to appointments of the heads of the Central Bank, tax administration, customs services and treasury; and 4) Sovereign debt allocation. The ICO undertook its core tasks in advising the Kosovo Government in the above areas jointly or in close coordination with the European Commission (EC) and the International Monetary Fund (IMF). In 2009, the Govern- ment of Kosovo (GoK), assisted by the ICO, made modest strides in the area of economic and fiscal reform efforts. An internal ICO report highlighted areas of progress and remaining challenges: “The absolute judgment is that fiscal policy remains unsustainable in the medium term but a bit more may be realistically achieved and we see the possible beginning of a positive trend (an IMF program may soon be agreed upon). Moderate success was seen in economic policy reform. Very few positive initiatives have emanated from the government mainly owing to lack of capacity in relevant institutions. Economic governance has also seen insufficient results in relative and absolute terms, the only redeeming factor being the avoidance of inappropriate appointments and decisions. A majority of appointments to the PAK, KPST and KPA have been completed

32 Comprehensive Status Proposal, see Annex VI, Articles 1.4 and 8.1.

35 International Civilian Office with the remaining few due to be done in the next months.”33 Other international partners corroborated the challenging economic and fiscal environment identified by the ICO. Kosovo had won membership to the IMF and the World Bank, with both bodies cognizant of the macro- finance challenges that faced the Kosovo economy. The World Bank conducted an exhaustive survey that identified key areas of economic and fiscal development that were in disrepair and needed fundamental reform.34 The study concluded that Kosovo faced serious barriers to a sustained and transparent reform agenda if the Kosovo government did not undertake expeditious programs to create a healthier economic and fiscal climate. An IMF team’s fiscal assessment similarly recommended that the Kosovo government: 1) Reassess expenditure and introduce cuts to restore fiscal sustainability; 2) Identify a credible anchor to underpin fiscal policies and regain control – once and for all – over expendi- tures and the deficit; 3) Broaden the tax base. Both bodies had presented a daunting list of tasks requiring the newborn state to align its economic and fiscal policies to international standards and work to remove corrupt practices from public and private sector enterprises. Kosovo’s political landscape presented a diverse picture in the two years following the declaration of independence. There was a functioning government, local

33 ICO Retreat Document, 19 October, 2009, Brezovica, Kosovo. 34 World Bank Group, International Finance Corporation Enterprise Surveys, Kosovo, Republic of Country Profile 2009.

36 Building a State and Exit elections had been conducted in a peaceful manner, membership in international bodies had been secured and internal reform in key areas was underway. The ICO’s support was pivotal as Kosovo navigated changes in its relationship with the UN and the EU, marked by a reduced role for UNMIK and the much increased role for the ICO and the EU. A Washington Post article described how Kosovo appeared in 2009 and 2010: “…in spite of its problems and growing pains, Kosovo is cited by many diplomats as a credible model of nation-building, a sign – relevant to the current debate on identity in Afghanistan – that a determined effort by foreigners can help to build a country from the ashes. After years of ethnic conflict, security and stability are taking root.”35 Northern Kosovo still remained a challenge for the ICO despite its well-conceived and exhaustive strategy to make inroads into the Serbian-majority northern region. Mr. Feith, in his capacity as coordinator of EU presences in Kosovo, alluded to this in a speech as early as April 2009, in which he stressed, “The question of how best to address the North so that the Kosovo government is able to exercise its competencies in customs and judiciary-related areas also remains a challenge for us. The EU stands for good neighbourly relations, and here, as with other issues, a dialogue between Belgrade and Pristina on practical issues could be useful.”36 Democratic oversight, political debate and multi-

35 Craig Whitlock, “Despite its troubles, Kosovo offers model for nation- builders”, Washington Post, December 1, 2009. 36 Pieter Feith, ICR/EUSR, “EU Presences and Partnership with the Kosovo Government”, speech delivered at the Kosovo School for European Integration, April 16, 2009.

37 International Civilian Office ethnic coexistence still faced challenges in Kosovo’s political life. The Assembly of Kosovo had passed many of the basic laws but their implementation was slow or non-existent. Organized crime and rampant corruption still pervaded daily life, and the anticipation of the upcoming ICJ Advisory Opinion had frozen momentum in key areas of political life. There was anxiety as to the outcome of the Advisory Opinion and how it would address issues of legality and sovereignty. Years of negotiations had produced a final declaration of independence in 2008 but little thinking had gone to determining the post-declaration phase. 

IV: CHALLENGES AND CRISES

The second anniversary of Kosovo’s independence saw the ICO positioned as the overall coordinator of the international effort in assisting Kosovo’s statehood. The ICO had worked closely with the government of Kosovo, the Quint members, civil society and others to consolidate Kosovo’s statehood and, starting in early 2010, began to review residual tasks that the mission planned to complete during the course of the year. The highly anticipated advisory opinion of the ICJ would also be one of the key instances that set the political tone early in the year. Pristina and Belgrade remained keen on asserting their public relations spin in the period leading up to the issuance of the opinion and its aftermath. The ICR briefed members of the ISG on 8 February 2010 in Brussels, on challenges still remaining in CSP implementation. On decentralization (CSP Annex III), the ICR reported that the new municipalities had to be brought up to basic standards in order to function in a democratic manner. 39

International Civilian Office

The ICR reported encouraging progress in the area of religious and cultural heritage (CSP Annex V) with the appointment of a Facilitator of communication between Kosovo institutions and the Serbian Orthodox Church, improved security around religious and cultural sites, and the arrangements for the October 2010 enthronement of a new patriarch at his traditional seat in Peć/Pejë. In the economic sphere (CSP Annexes VI and VII), the ICR informed ISG members that unemployment in Kosovo stood at around 45 percent, foreign direct investment (FDI) had declined in the past two years and there remained persistent inefficiencies in the private sector.37 The ICR also mapped the ICO’s strategy for the north, so that citizens of the whole territory of Kosovo would have their needs addressed, based on democratic participation and local ownership. The ICR highlighted that a Municipal Preparation Team (MPT) for Mitrovicë/Mitrovica North had just been named and that further progress was possible once rule of law and social and economic improvement were more visible to the residents in the north. In assessing progress made in CSP implementation, the ICR also presented the first snapshot of ICO’s rebalancing of the organization and a review of his affirmative powers. Keeping in mind the ISG’s previous guidance that it was not yet time to reduce affirmative powers (December 2009 ISG meeting), the ICR pointed to an “engaged vigilance” on the issue of his affirmative powers and “active management” of the rebalancing exercise. The ICR added

37 ICR’s opening remarks at the twelfth meeting of the International Steering Group, February 8, 2010, Brussels.

40 Building a State and Exit that he envisaged a “flexible mechanism, responsive to continuing progress and evolving priorities.”38 The Prime Minister of Kosovo attended this meeting and both he and the ICR affirmed that their close mutual cooperation would continue in this next phase of Kosovo’s development. The priorities for the ICO were continued support for Kosovo with a greater emphasis on local ownership and transfer of competencies to the EU. For the Kosovo authorities, the pressure was on to intensify reforms in all areas of statehood adhering to international norms and democratic practices. The ICO had assumed a central role in Kosovo’s state- building efforts by ensuring that other actors, EULEX, ECLO, embassies and other external stakeholders were kept fully engaged and informed on critical issues that impacted governance at all levels. The ICR early on laid out his visions for strategic change in several critical areas: parallel structures in the north, customs, the Mitrovicë/Mitrovica courthouse, electricity, education, healthcare and organized crime to name a few. It was imperative to forestall three catastrophic scenarios in northern Kosovo: armed conflict, frozen conflict or partition.39 The ICR emphasized that as far as the north was concerned, four strands were to be drawn together in a coherent approach: strengthen rule of law (EULEX presence, improved performance by Kosovo police, attention to courthouse and customs), prepare Mitrovicë /Mitrovica north for elections following the ICJ decision and

38 Ibid. 39 ICR’s presentation at the Foreign Policy Club, 23 February, 2010, Pristina.

41 International Civilian Office increase funding to Kosovo Serb communities, governance in the rest of northern Kosovo (three municipalities) after new elections, and finally the improvement of social and economic conditions via the Kosovo Government Fund and an active EU presence.40 Other big-ticket items remained: completing decentralization south of the river Ibar, with the transfer of competencies to the new municipalities and ensuring that the municipalities were able to sustain themselves. Elections for the yet-to-be decentralized municipality of Parteš/ Partesh, elections in Mitrovicë/Mitrovica North, approval of a Serbian-language curriculum, laws on Special Protected Zones (SPZs), tangible results in privatization through PAK and resolution of property issues through the KPA were priorities as well. The ICR maintained that a raft of legislation would reinforce all these sectors, examples being laws on reform of the judicial sector, on the Central Bank of Kosovo (CBK) and the Kosovo Pension Savings Trust (KPST), on Missing Persons and War Veterans, amending the law on elections in view of upcoming general elections, on statics and on the census. In the lead-up to the ICJ advisory opinion, the ICR and the ICO had full support from the Quint and other partners in Kosovo. This was reiterated at several meetings of the Quint in Pristina as well at subsequent ISG meetings following the 8 February 2010 meeting reported above. In a June 2010 capitals-level ISG meeting, the U.S. commended the ICO for a steady execution of its mandate, stating, “Decentralization is considered a permanent success” and that a

40 Ibid.

42 Building a State and Exit rebalanced ICO would be able to fulfill remaining CSP functions. The American representative advocated a vigorous drawdown: “. . . there should be a period of transition in Euro-Atlantic Strategy…..a smaller ICO can achieve that – 50 percent smaller – continuing to accomplish CSP requirements.”41 In his comment on behalf of the participating EU states, the representative from the EU Council Secretariat reaffirmed the EU’s growing commitment to deeper engagement with Kosovo and its priorities of reform. Acknowledging the ICO’s achievements and its own rebalancing initiatives, the EU representative reiterated that “the European Union wants to be stronger in Kosovo. The fact that there are differences (between EU members) does not mean we don’t want to be here.”42 As regards the northern strategy devised by the ICO and the government of Kosovo, following vigorous discussions in Pristina and in capitals of the ISG members, an agreement was reached that this approach was the prudent way forward in addressing contentious issues in the north. The strategy as outlined by the ICR early in 2010 (as discussed above) contained a four-pronged approach: strengthening rule of law; decentralization and the establishment of the municipality of Mitrovicë/Mitrovica North; governance issues addressed in the three existing northern municipalities of Leposavić, Zubin Potok and Zvečan; and improving the economic and social situation for all the residents in the north. The strategy highlighted the

41 Remarks by the representative of the United States, Minutes of the International Steering Group Capitals level meeting, June 14, Pristina. 42 Remarks by the EU Council Secretariat representative, Minutes of the International Steering Group Capitals level meeting, June 14, Pristina.

43 International Civilian Office expectation of “cooperation from Belgrade to advance the integration of the Kosovo Serb community in the north into Kosovo society as a whole, also in view of Serbia’s aspirations for integration into the EU.”43 One of the early initiatives of the ICO was a series of meetings hosted for Kosovar Serbs citizens from throughout the country. Chaired by the ICR, these meetings were intended to hear the views of members of the Kosovar Serb communities, north and south of the Ibar, on issues as wide ranging as water allocation, policing, legal and property issues, law and order and the socio-economic challenges faced by members of the community. These were held in both Pristina and Mitrovicë/Mitrovica. The meetings indicated the political and social vacuum that had prevailed for the past decade. Participants at the meetings voiced frank views on the under-representation of Kosovar Serbs in government institutions in Pristina as well as the almost daily problems that they faced in dealing with local government structures (legal and illegal parallel structures). The ICO established additional contacts with members of the Kosovo Serb community and ensured that their concerns would find a voice in Pristina as well as in the imminent Pristina-Belgrade dialogue.44 The northern strategy (to be later known as the “comprehensive approach”) was debated in the Kosovo Assembly and endorsed as being in the interest of the nation

43 Internal ICO document, Summary Of The Strategy For the North Of Kosovo. 44 Internal ICO meeting notes on round-table meetings between the ICR and members of the Kosovo-Serb communities.

44 Building a State and Exit and as a tool to provide services to all citizens of Kosovo. Embedded within the northern strategy was a clear message for Serbia: “On the one hand, Belgrade could continue its confrontational policy that seemingly has the partition of Kosovo as its goal, as well as with pressuring for some kind of new negotiations, or it could use the ICJ decision as a basis to reduce its support for the parallel structures, and work with the international community.”45 The crafting of the northern strategy seemed timely since as the summer of 2010 approached and a date was set for the issuance of the ICJ opinion, speculation was rampant as to the content of the decision; both Pristina and Belgrade were keen to preserve their most immediate self- interests. How the northern strategy would play out remained a matter of debate for the international community even as its members agreed that almost any strategy was better than no strategy at all. In May 2010, the ICR took the ICO’s remaining priorities and organizational agenda for discussions to the United States. In his meetings in Washington DC, the ICR focused on ICO’s residual tasks to ensure that the outstanding CSP provisions could be implemented as expeditiously as possible. The ICR provided a vision of the ICO’s evolution and progress, and its complementary role in the efforts of capitals to ensure that the period of the aftermath of the ICJ opinion would be positive for Kosovo. Discussions also included progress in the north and the further drawdown of NATO in the near future.46 The ICR also briefed officials in Washington on

45 Strategy for Northern Kosovo. 46 ICR meeting with Assistant Secretary of State, Phil Gordon, May 25, 2010, US Department of State, Washington DC.

45 International Civilian Office progress in the security sector. The ICO played a vital role in such landmark achievements as the establishment of the Kosovo Security Force (KSF), the Kosovo Security Council, the Kosovo Intelligence Agency and the intelligence oversight committees in the Assembly of Kosovo assembly. The Constitutional Court, the Supreme Court and, to some extent, the establishment of an Ombudsperson improved the functioning of the rule of law. Finally, the delineation and demarcation of the border with Macedonia, global diplomatic representation, and admission to membership in the IMF and World Bank all increased Kosovo’s nascent international profile.47 The ICR expressed his appreciation for the contribution of 25 percent of the ICO budget by the United States, in addition to the seconding of six US staff members to the ICO team, three of whom were U.S. Foreign Service Officers. The ICR also expressed gratitude for a bill pending in the U.S. House of Representatives (known as H.R. 5139), introduced by Congressman Howard L. Berman (Democrat of California) that would provide the ICO with immunity from suit in the United States. While there had been no moves against the ICO, it was prudent to have this measure in place in case of any future action against the organization. The ICR responded to queries about the future of the ICO as well as the EU and the creative and pragmatic way forward for Pristina and Belgrade to engage in a constructive dia-

47 ICR meeting with Director of the National Security Council, Jeff Hovenier, May 26, 2010, Eisenhower Executive Building, Washington D.C.

46 Building a State and Exit logue with each other.48 Overall, the ICR received encouragement and support for his vision of the ICO in its transition phase, continued engagement in Kosovo’s state-building enterprise while ceding some spheres of activity to the EU, and for com- mencing a rebalancing exercise for the ICO, resulting in a leaner but still effective office. These meetings were particularly timely as they fell on the eve of the delivery of the ICJ opinion, where Washington’s support was crucial and decisive. It was also evident that from Washington’s point of view, Kosovo had been “dealt with” and on its way to writing its own history on the Western Balkans map, whole and free from any external domination. United States foreign policy had assumed focus in other conflict-ridden areas and clearly the EU would steadily assume the lead in Kosovo. As envisaged in its internal work plan and shared with members of the ISG, the ICO took its first major step in the rebalancing exercise by closing down the Security Affairs Unit (SAU). The core tasks of the SAU entailed providing political security advice to the ICR as well as to all other ICO units. The unit’s achievements were significant, given the short time-span within which they were executed. SAU had provided leadership and advice in key areas: 1) finalization of legislation pertaining to the establishment of a democratic and accountable security sector; 2) active participation in the Joint Technical Commission (JCT) leading to the successful demarcation of the Kosovo-Macedonia border on 17 Oct- ober, 2009; 3) providing democratic oversight over the Kos-

48 ICR meeting with Senators George Voinovich and Jeanne Shaheen, May 25, 2010, Hart Senate Office Building, Washington D.C.

47 International Civilian Office ovo Intelligence Service; 4) establishment of the Kosovo Security Council; 5) establishment of a fully functional civil aviation authority (KCAA), ensuring its participation in NATO-led and other international civil aviation fora as an equal partner; 6) comprehensive involvement in the setting up of the Kosovo Intelligence Agency from the drafting of the law stage to the recruitment of core executive staff and establishment of practices and procedures; 7) support to NATO’s efforts for the formation of the Kosovo Security Force.49 In a recommendation for its closure and the way forward, the SAU proposed the transfer of residual tasks to the Political Affairs Unit (PAU): “It is commonly understood that security is a precondition for the sustainable development of a state. In Kosovo much has been achieved to establish a democratically accountable public security sector. In light of objectives realized by April 2010, ICO should reflect on how the overall change in function—from robust and at times operational oversight to a more general and political intervention—impacts on its organizational structure. One way ahead would be the transfer of specific tasks to a suitable unit, preferably the Political Affairs Unit.”50 SAU’s recommendation was approved and as it closed, residual tasks and two officers (one national, one international) transferred to the PAU. The residual tasks that were transferred included: 1) ensure conformity of the security architecture with international norms and stand-

49 SAU paper submitted to the senior management retreat, Brezovica, October 2009. 50 Ibid.

48 Building a State and Exit ards, thus relieving the ICR from direct supervision; 2) general oversight of the KIA and KSF committees; 3) ensure that international standardization of legislation is ongoing; 4) ensure long-term development of the KSF; 5) monitor the progress made in civil aviation; 6) monitor the development of the KIA as developed nations assist the Agency to achieve consistency with European standards.51 The drawdown of the SAU set the tone for the ICO’s rebalancing exercise and remained consistent with the ICR’s vision for a leaner organization as CSP tasks were completed. The SAU’s legacy has been the set-up of enduring security institutions that are the foundation of a well- functioning state. Further professionalization of the security agencies is contingent upon continued training and main- tenance of international standards by Kosovo officials and unstinting support of the main stakeholders of Kosovo. The ICJ announced in the spring of 2010 that the advisory opinion on Kosovo’s unilateral declaration of independence would be issued on July 22, 2010 in The Hague. The first three months of the year had seen a flurry of activity in the political and legislative arenas. Lawmaking outpaced 2009, also including the creation of the Rules of Procedure, the IMF package, and the Law on Civil Servants. The government’s Legislative Strategy for 2010 included 123 new laws, of which 38 had been promulgated by the spring.52 However, this momentum slowed once it became clear that the ICJ opinion was imminent. Kosovo had a high stake in

51 Ibid. 52 Internal ICO memo “Assembly Output in 2010 Far Outstripping 2009”, 2 August 2010, Pristina.

49 International Civilian Office the outcome of the ICJ’s deliberations, and Serbia appeared certain that its view of Kosovo’s legal status would be affirmed through the advisory opinion. The ICO kept up support for Kosovo through its mandated activities without prejudicing the outcome of the ICJ. Thus the use of the ICR's corrective authority was discouraged by Kosovo's legal counsel as it could weaken Kosovo's position before the Court. On 22 July 2010, the ICJ delivered its advisory opinion in accordance with international law on the unilateral declaration of independence in respect of Kosovo. After a lengthy readout of the overall advisory opinion, the Court concluded, “that the adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) (UNSCR 1244) or the Constitutional Framework.”53 In what was widely viewed as an unexpected outcome and in obvious favour of Kosovo, a sense of relief and vindication seemed to be the predominant mood in Pristina and in embassies and capitals of all the states that had supported Kosovo’s arrival to this juncture. In a swift internal legal analysis of the implications for ICO and its mandate of the advisory opinion, the ICO concluded that the ICJ ruling did not bring CSP obligations as adopted under the declaration of independence into conflict or over- lap with resolution 1244, therefore the ruling would have no negative impact on the ICR/ICO mandate in Kosovo, or the legitimacy or applicability of the CSP. In fact, “the advisory opinion serves to legitimize ICO’s relationship with Kosovo and

53 See the ICJ Advisory Opinion, Accordance with International Law Of the Unilateral Declaration of Independence In Respect of Kosovo, pp1-123, The Hague, The Netherlands.

50 Building a State and Exit with UNSCR 1244 allowing for better cooperation between ICO and UNSCR 1244 based organizations.”54 A certain bounce in recognitions was surely expected in what seemed a major step forward for Kosovo and for the continued relevance of the CSP and the ICO. The post-advisory opinion phase found the Kosovo government beginning to assume a fairly assertive role and be less pliant. The Prime Minister announced in public that the time for supervised independence would soon come to an end. The government decided not to grant Serbian requests for visits, and patience began to wane for several other issues left hanging for the “right moment.” There were delays as a result of proposals that would have the effect of re-centralizing (sometimes incompletely) decentralized competencies leaving several municipalities struggling to function.55 The Kosovo authorities informed UNMIK that they would refrain from any participation in regional cooperation forums (Central European Free Trade Assoication, Regional Cooperation Council) with UNMIK’s facilitation and this rapidly became governmental policy. It can be argued that this was hardly a mature response for a new state that seemed to have struck good fortune at the highest court of appeal in international law. There was no immediate jump in the number of recognitions from the rest of the world and the euphoria in the immediate aftermath of the issuance of the advisory opinion rapidly died down. Meanwhile, domestically, the government as well as

54 Ibid. 55 ICO internal document, “Welcome Home Note ICR/EUSR”, 23 July-23 August 2010, Pristina.

51 International Civilian Office opposition parties began jockeying for positions using the ICJ opinion as their tactical weapon. The Prime Minister’s governing coalition tried hard to capitalize on the ICJ ruling for political traction but an unwieldy although persuasive opposition continued with its criticism of the government for failure to get more recognitions, for lacking an effective strategy to counter Serbia’s aggressive strategy in the UNGA and for making no efforts to improve the economic life of the citizens of Kosovo. 56 Despite their own internal troubles, the opposition was also successful in forming a united front and walking out of the Assembly as the Prime Minister presented Kosovo’s “privatization strategy” for the post and telecommunications department (PTK). The arrest of the leader of the most dynamic opposition party, Ramush Hara- dinaj, for alleged war crimes and his consequent incar- ceration in the ICTY remand prison in The Hague, dealt a blow not only to his own party, the Alliance for the Future of Kosovo (AAK), but also bolstered the strength of smaller and less voluble parties. Following these political developments, Kosovo was further mired in a constitutional crisis when the President was accused by members of the Kosovo assembly of being in violation of the Constitution by holding the office of Presi- dent of Kosovo as well as leading the Democratic League of Kosovo (LDK), a coalition partner in the Government. The matter was referred to the Constitutional Court and in a 7-2 ruling the Court determined that the President’s simul- taneous party chairmanship was in serious violation of the

56 ICO Briefing Memo, “The Opposition after the ICJ and Haradinaj’s arrest”, 2 August 2010, Pristina.

52 Building a State and Exit

Constitution. The Court ruling asserted that: “In determining whether this violation was ‘technical’ or ‘serious’ the Court looked to the impact of the President’s decision to hold a political party function on the confidence of the public in the Office of the President. The public should feel assured that their President is impartial and independent. When the President holds high office in a political party, they cannot be assured of this.” As such, the Court concluded that the President committed a serious violation of the Constitution under Article 88.2.57 Following the verdict of the Court, the President re- signed from office on 26 September 2010, the Assembly was dissolved and general elections were scheduled for early December 2010. The crisis brewing in Pristina made it impossible for the government to focus any further attention on how to handle the north following the ICJ opinion, inducing a continued political and security vacuum. To analysts and observers, as well as to many within the ICO structure, there was a curious unraveling of events that seemed to make the statehood enterprise in Kosovo increasingly difficult to manage. Despite numerous layers of international support within the region and from capitals, it appeared that Kosovo was still not firmly in control of a mature and democratic political system and required vast amounts of continued advice and support. On 12 December 2010, in a generally peaceful but sometimes tense atmosphere, the citizens of Kosovo went to the polls in freezing temperatures in the first general

57 Constitutional Court ruling in the case of the alleged violation of the Constitution by the President of Kosovo, as reported in an ICO internal memo, 28 September 2010, Pristina.

53 International Civilian Office elections since the declaration of independence. By ICO’s own estimates, the voter turnout was 47.80 percent with Kosovo Serb participation relatively high in the south. Several reports from polling areas indicated that there had been fraud and irregularities in several municipalities. Based on the complaints filed with the Election Complaints and Appeal Panel (ECAP) by political parties, the Central Elections Commission (CEC) organized a re-run of all polling stations in three municipalities and for the whole municipality of Mitrovicë/Mitrovica, to be held in January, 2011. Final results were announced and certified in early 2011, with a return to power by the Democratic Party of Kosovo (PDK) and the Prime Minister sworn into office for another term. No sooner was he ensconced in office than Dick Marty, a Swiss member of the Parliamentary Assembly of the Council of Europe and its Parliamentary Committee on Legal Affairs and Human Rights, issued a report entitled, “Inhuman treatment of people and illicit trafficking in human organs in Kosovo” alleging the involvement of the “Drenica Group”, among others, in human organ trafficking when Mr. Hashim Thaçi was a leader of the Kosovo Liberation Army (KLA). The report produced an outcry internationally and was quickly adopted by the Council of Europe that called for immediate investigation into Marty’s serious allegations. The report could not have come at a less opportune time for the Prime Minister and for Kosovo. As Kosovo completed its third year since the declaration of independence, there was less room for optimism among Kosovo’s

54 Building a State and Exit supporters. Its international image had “taken a hit,” recognitions stood at 75 and no more, and now the credibility of its leader was called into question. The ICR and the Quint members spoke as with one voice when they reiterated that a call for investigation of the alleged atrocities must be respected and that indeed Kosovo had to be held to international standards on any violation of human rights or crimes against humanity. The Marty report further slowed political momentum and uncertainty surrounded the next steps to be taken to regain lost ground and credibility. Meanwhile, the quest for a new President had begun. The ICO and the ICR maintained a steady pace of engagement with Kosovo authorities and continued with the transfer of core tasks to the EUSR office. The second wave of rebalancing of the organization would go into effect on 31 March, 2011 when staff who had completed their assigned areas of responsibility would leave the organization. Core remaining tasks of the CSP were identified and staff required to fulfill them were retained for another year. 

V: THE DUAL MANDATE

The European and American involvement in Kosovo and Euro-Atlantic cooperation would be critical to Kosovo’s establishment as a viable state following its declaration of independence. Accordingly and keeping in view the EU presence as well as that of the ICO as the way forward post- UNMIK, the EU Special Representative (EUSR) was given an additional, concurrent role as International Civilian Repre- sentative (ICR) in order to lead the state-building phase of Kosovo’s new history. In introducing the EUSR shortly after his 4 February 2008 appointment, then-EU High Representative Javier Sol- ana, spelt out the role of the EUSR in Kosovo: “Pieter Feith will in particular offer the EU’s advice and support in the political process and promote overall EU coordination in Kosovo.”58 The ISG, at its inaugural meeting on 28 February 2008,

58 Council of The European Union, “Javier Solana, EU High Representative for the CFSP, welcomes the appointment of Pieter Feith as EU Special Representative in Kosovo and Yves de Kermabon as Head of Mission of EULEX Kosovo”, S060/08, 16 February, 2008, Brussels, Belgium. 56

Building a State and Exit referred to the ICR’s appointment in its statement: “We have today appointed Pieter Feith, an experienced international diplomat who has already been appointed the European Union Special Representative in Kosovo, to be the International Civilian Representative (ICR) for Kosovo. As ICR, Mr. Feith will have certain responsibilities and powers as outlined in Annex IX of the Ahtisaari Plan, to help him supervise Kosovo’s fulfillment of its obligations under that Plan. He will as of today establish under his authority an International Civilian Office (ICO) to assist him in fulfilling his mandate. Mr. Feith will undertake his duties in a spirit of partnership and cooperation with the government of Kosovo.”59 The ICR/EUSR, thus, came to assume a dual role that offered several possibilities with which to engage Kosovo and ensure its compliance with international standards of governance. However, as time would show, it was also a challenge for the same person to engage with Kosovo’s leadership and citizens, donning a pro-status hat as the ICR and leader of the only international organization that recognized Kosovo’s independence, while concurrently acting as a status-neutral EUSR, given that five of the EU’s members did not recognize Kosovo’s independence. The lack of EU member state unity in recognizing Kosovo’s independence was one among several factors that did not provide the EU with a firm footing in Kosovo as the EU Rule of Law Mission (EULEX) deployed, and as a European Commission Liaison Office (ECLO) and an EUSR were set up in Pristina. Cyprus, Greece, Romania, Slovakia

59 Press Statement, first meeting of the International Steering Group for Kosovo, 28 February 2008, Vienna, Austria.

57 International Civilian Office and Spain would remain resolutely opposed to supporting Kosovo’s independence, disabling the EU from speaking with one voice. A second issue was to ensure that cooperation with the United States would be maintained by the EU, despite the differences that were bound to emerge from a protracted engagement of both in Kosovo. According to one analyst: “Brussels certainly wanted to follow Washington’s lead and was determined not to repeat the nightmare of the transatlantic split and the rift within the EU’s own ranks over the U.S. invasion of Iraq in 2003.”60 As later challenges, particularly around the issue of elections, would highlight, the EU was compelled to present a unified and cooperative stance with the United States so that issues would achieve real resolution and in a timely manner. A third real challenge for the EU in Kosovo was to adjust to UNSCR 1244 and a reconfigured UN presence, so that it had the legal basis for operating in the entire territory of Kosovo, including the highly contentious north. Lack of cooperation from the UN and slow mobilization of resources hampered the EU’s effectiveness as it became clear that UNMIK would continue operating for an indefinite period.61 On the issue of the north, the EU realized that unresolved issues had remained in place for a decade and that the Ahtisaari Plan also foresaw a special relationship between Belgrade and the Kosovo Serbs as long as those links remained transparent. Lack of decisive leadership in Brussels and on the ground contributed to the perception among EULEX that it seemed impossible to tackle the north comprehensively and root out

60 Elizabeth Pond, “The EU’s Test in Kosovo”, The Washington Quarterly, 31:4, pp. 97-112, Autumn 2008, Washington D.C. 61 Ibid, p. 100.

58 Building a State and Exit criminal and other linkages that were deeply entrenched in the region. This was the scenario within which the ICR/EUSR would operate over the next several years: Pieter Feith led an ICO that had the strong political support of the ISG members, significantly the United States. He was the coordinator of all EU presences in Kosovo, dispensing political advice as needed, of a disparate EU whose members seldom agreed on common policy and in the face of constraints placed by UNSCR 1244. The ICR/EUSR also worked in an environment where irate members of the Kosovar/ Albanian and Kosovar/Serbian communities did not have the appetite for yet another “occupying” mission in Kosovo. The UN simply ignored the existence of the ICO, and the Serbian Government deemed it to be illegal. The ICR/EUSR “grounded ICO legitimacy in authority conferred by the states that have recognized Kosovo, as well as by the Pristina government’s invitation to the EU to supervise Kosovo’s independence in accord with the new constitution.”62 The first year of the ICR/EUSR’s mandate demonstrated that whilst the ICO was proceeding at often dizzying speeds to ensure implementation of the CSP, particularly in passing legislation and in setting up core institutions, the EUSR office was slow to take shape, de- pending on Brussels to give vision to its Kosovo policy. In the timeframe following the passage of the Lisbon Treaty, the EUSR finally began to engage more closely with Kosovo and with other partners in the region. The ICR/EUSR’s double-hatted role has been debated and analyzed by senior officials involved in the ICO/EUSR

62 Ibid, p. 103.

59 International Civilian Office set-up, as well as reflected upon by the ICR/EUSR himself. There are six main themes that encompass their views. Firstly, there is a general agreement on the point that, had there been an early consensus and clear chains of command in the setting up of the post-UNMIK international presence, there may not have been the need for a double ICR/EUSR hat. The EU would have spoken in one voice and had a clearer chain of command, itself, and also perhaps a stronger presence in the ICO.63 The non-recognizers paved the way for a split within the EU as well as the propensity of the EU status-neutral view to collide with the pro- independence stance of the ICO. It was therefore clear that to break the possibility of an impasse on key issues of importance, splitting the highest executive authority into two hal- ves seemed the most pragmatic solution. Secondly, and converse to the first point, it has been argued that the double-hat has served a useful purpose, particularly in the first two years of the ICO/EUSR set-up. One “hat” focused on independence and state building and the other on a European future for Kosovo; both are forward-looking agendas. Therefore, investing both authorities in one individual, and housing two sets of staff under one roof, seemed prudent to encourage momentum in a positive direction towards democracy and statehood.64 There were some areas that the ICR/EUSR could address donning both hats, such as healthcare, human rights, women’s rights, education and economic reforms. These were in the long-term

63 Interviews in Vienna and Brussels. 64 Internal ICO interview. Interview in Brussels.

60 Building a State and Exit interest of Kosovo as an independent state as well as a democratic European one. A third view held that the dual-hat arrangement provided fodder for local and international officials to manipulate the sometimes diverging EU/US positions on strategic issues. The ICR/EUSR was put at odds in arbi- trating competing positions between local authorities and international actors. A classic case in point was the 2009 municipal elections, where the EU and US were keenly divided on what a feasible number of new municipalities would be, with even the UK (a close US ally) taking a diametrically opposed view to that of the US.65 The ICO/ EUSR office premises held several of these contentious discussions and the ICR/EUSR was continually challenged in ensuring that he dealt with competing demands, keeping in view Kosovo’s long-term prospects in sustaining the state- building enterprise. A fourth theme that present and former senior official have reflected on is that the ICR/EUSR has never had a formal chain of command in either Brussels or through the ISG. It is, therefore, believed that in the absence of crucial guidance to the politically most influential figure in Kosovo, the ICR/EUSR was often left isolated in his decision-making, having to rely on the cooperation of the Quint members in Pristina. Brussels, in particular, was criticized for lack of support in instances of intra-EU policy differences that needed resolution by the ICR/EUSR.66

65 Quint meeting notes 2009 and internal ICO interviews with staff. 66 Interviews at the EU Council Secretariat and in-house in the ICO/EUSR.

61 International Civilian Office

Fifthly, the ICR/EUSR often became the focal point of the transatlantic divisions on major issues. As the ICR and with the support of an American Deputy as well as American diplomatic staff members on board, the ICR/ EUSR was able to resolve outstanding differences between his office and the position taken by the US Embassy in Pristina. However, as the EUSR and therefore reflecting a status-neutral position, this was a much harder task, as he was unable to take a forceful stance on many issues. As one ICO official stated: “The double-hat hung like the sword of Damocles over the ICR/EUSR’s head, the responsibility for which lies directly with Brussels. It impeded his ability to take robust action particularly in the face of Kosovar transgression of assumed international obligations.”67 Lastly, the ICR/EUSR double-hat worked best as long as it was useful and not strained. As the friction within the EU structures became more apparent and the push for a more magnified EU role became stronger in 2010, the utility of the double-hatted arrangement became less apparent. Contractual arrangements were untenable, as the EUSR would get an awkward six-month extension on his contract with no idea of what was to follow beyond the six-month period. It was clear that the EU now had ideas for greater expansion and that the EUSR “hat” was increasingly difficult to wear. The ICR/EUSR identified the transition stage early in late 2009/ 2010 as he wrote to Brussels:

67 Internal ICO interview.

62 Building a State and Exit

“In light of the EU’s intentions according to the Lisbon Treaty to establish an appropriate European presence in Kosovo, 2010 will be a year of transition for the ICO/EUSR. The International Civilian Office will begin a process of gradual rebalancing and drawdown, while the EU presence is expected to be enhanced.”68 In light of what was thought to be the imminent enhancement of the EU presence, the ICR/EUSR issued several statements in late 2009/early 2010 as EUSR, even in areas considered to be ICR-mandated functions. He was paving the way for the EU to assume new functions and perhaps absorb residual ones from the ICO as it began to downsize. A sampling of ICR/EUSR statements from this period follows: “I welcome the Study on Kosovo, published together with the Progress Report. The important thing for Kosovo is that the Study contains concrete proposals on how to advance further its European perspective—in particular with regard to measures in the area of visas and trade. ...I congratulate the people of Kosovo on the overall smooth conduct of local elections and on the good and constructive atmosphere that prevailed. This helps Kosovo in its transition towards a multi-ethnic society, and in its effort to bring more effective governance closer to the people….I would like to remind Kosovo authorities, of their commitment to ensure greater participation of women at all levels of decision-making. Continuing efforts are needed to address issues like domestic violence and human trafficking within a strengthened institutional

68 Pieter Feith letter to the General Secretariat of the Council of the European Union, 21 January 2010, Pristina, Kosovo.

63 International Civilian Office framework.”69 “The Progress Report is a key tool for Kosovo to fulfill its European aspirations. It gives concrete and practical guidance required to achieve European standards that will translate into better living conditions for people in Kosovo. That is why I welcome the upcoming series of progress report debates as an opportunity to increase understanding of what the report means for Kosovo’s future.....” The ICR/EUSR summed up his own experience of the double hatting by stating: “During the institution-building stage the two-hat arrangement was very useful. In the upcoming phase of dialogue between Kosovo and Belgrade, I imagine it will be less so. The EU should be in the lead during that process.”70 The ICR/EUSR acknowledged the challenges he often faced while wearing both hats: “The double-hatted arrangement remained constructive and brought together the European perspective as well as the support of the states that recognized Kosovo. But clearly it has also been difficult because I had to be very careful in keeping separate the messages under the one or the other mandate, being either status-positive or status-neutral. An end to this arrangement is inevitable, to split up the two hats, since the European Union is keen to establish a unified EU presence either as an office or a delegation that will report directly to Lady Ashton. I think I

69 EUSR statement, “Higher representation of women in politics and economic important for Kosovo’s progress”, press statement, 4 March 2010, Pristina, Kosovo. 70 Interview with the ICR/EUSR, 26 February 2011, Pristina, Kosovo.

64 Building a State and Exit pushed the two hats as far as I could.”71 Although the ICR/EUSR was granted wide-ranging executive and appointment authority in Annex IX of the CSP, the very letter and spirit of the CSP assumes that Kosovo would eventually run its own affairs. As much as the CSP granted these powers to the ICR, it also provided a checking mechanism for them in Annex IX of the CSP: “Based upon the recommendations of the ICR, the International Steering Group shall establish benchmarks for a periodical review of the mandate of the ICR, and shall conduct a full review of the powers of the ICR no later than two years after the entry into force of this Settlement, with a full view to gradually reducing the scope of the powers of the ICR and the frequency of intervention.”72 During the course of his tenure, the ICR/EUSR did not exercise his powers, other than the powers to make or consent to certain appointments, in a single instance. He was given legal advice in instances where he came close to exercising his powers but then it was decided that local authorities should be involved rather than the ICR issuing an executive order. One case in point was the municipality of Viti/Vitina, the mother municipality of the newly established Serb majority municipality of Kllokot- Verboc/Klokot-Vrbovac. The mother municipality decided to transfer all Socially Owned Enterprise (SOE) land to itself even as the land was under the trusteeship of the

71 Ibid. 72 CSP Annex IX, article 5.1.

65 International Civilian Office

Privatization Agency of Kosovo. Construction began on this land in full earnest with court orders being ignored by the Viti/Vitina municipality. For many months, the ICO attempted to address this situation through persuasion and dialogue, urging local actors to make full use of available political and legal tools to stop unauthorized construction. The municipality also obstructed the creation of the new municipality. The ICR consulted with the Prime Minister of Kosovo on the matter and it was decided that a graduated and proportional course of action should be followed. In the three-step action plan, which included EULEX support for the ICR’s use of executive authority and the intervention of the Kosovo government, the ICO legal team presented the ICR with recommendations on the use of his executive authority. The legal team concluded their brief by adding: “This would mark the first use of these corrective powers by the ICR. He is mindful of the policy implications and will ensure the International Steering Group is kept appropriately informed. The International Steering Group recently concluded that these powers should be retained precisely to ensure compliance with the terms of the CSP.”73 Ultimately the ICR/EUSR was not required to use his powers since the issue was addressed at the local administrative and judicial levels. The ICR/EUSR began an early review of his powers in preparation for the more comprehensive review that would be conducted in February 2010, the two-year mark of

73 Internal ICO memo on Viti/Vitina, 16 February 2010, Pristina, Kosovo.

66 Building a State and Exit the establishment of the ICO. In late 2009, the ICO senior team was already advising the ICR/EUSR on the upcoming comprehensive review. A distinction was drawn between the ICR/EUSR’s corrective powers and affirmative powers. The advice dispensed by his team recommended: “The ICR will need to remain with his panoply of corrective powers until the end of his mandate. If he cedes these legal powers, either in part or whole, he will risk his political standing. That said, the ICR should yield some of his affirmative powers on a case-by-case basis.”74 The reference to affirmative powers meant the consent powers of the CSP discussed above and dealt with consent to senior-level appointments of members of public and private enterprises. On the issue of the ICR/EUSR’s frequency of intervention, it was advised that there be a “view toward gradually reducing this frequency, which should begin to taper off over the course of 2010. Fewer interventions suggest a leaner organization. Much depends on developments in Kosovo. The municipal elections in 2009 and the parliamentary elections likely in 2011 will also furnish important evidence about Kosovo’s democratic maturity.”75 Armed with recommendations from his team and his own vision of his mandate, the ICR/EUSR managed a successful tenure of double-hatting responsibilities, along with frequent political ups and downs, without ever formally using his executive powers. This has fueled academic

74 The Way Forward paper, Senior Management Retreat, October 2009, Brezovica, Kosovo. 75 Ibid.

67 International Civilian Office and policy debate on the mature management of executive authority, the implications of which can hinder or help a fragile state such as Kosovo. As one study highlights: “In practice, while the ICR has appointed the international officials required by the CSP, he has carried out his mandate in a manner that has not relied on the actual use of his supervisory, executive powers. Indeed, to date there has been no formal use of those corrective powers; rather, the ICR has focused on executing the supervisory aspect of his mandate in a way that addresses and resolves potential issues before they rise to a level requiring the use of executive powers.”76 The ICR/EUSR remained aware of the merits of avoiding the actual use of executive authority for Kosovo’s fast-track progress toward local ownership. He was, however, also constrained from using his powers by the presence of powerful Quint members in Pristina, as well as other EU senior officials with whom he had to calibrate a unified approach to handling problems as they arose. The presence of the Quint kept up pressure on the Kosovar government to honor their CSP obligations and complemented the ICR/EUSR power. By his own admission, this was always a “delicate balance and it was not wise to upset the cart when we were all ultimately aiming for the same end result, a mature Kosovo with its own stakes in its future. I was not to be a United Nations SRSG and I established this fact with all my partners quickly when I arrived to assume office in 2008.”77 The

76 Steven Hill and Paul Linden-Retek, “Supervised Independence and Post- Conflict Sovereignty: The Dynamics of Hybridity in Kosovo’s New Constitutional Court,” The Yale Journal of International Law Online, vol. 36, pp 34, New Haven, CT, USA. 77 Interview with the ICR/EUSR, 26 February 2011, Pristina, Kosovo.

68 Building a State and Exit

ICR/EUSR deferred to the letter and spirit of the CSP which assumed a leaner international presence that would allow Kosovo to transfer to local ownership at the earliest opportunity. The era of interim administration and a powerful UN SRSG was over. This new phase of the international presence was one of partnership with Kosovo as well as with other countries in the region. In analyzing the avoidance of the use of executive authority, the skeptical view was “there was little use of granting executive powers to the ICR/EUSR if they were not to be used. It is as good as not having them at all.”78 Critics of the double-hat arrangement maintained that once it was clear to the Kosovo authorities that the ICR/EUSR was reluctant to use his executive powers, they manipulated the international community by delaying ministerial appointments, or passing unreasonable policies such as a 50 percent hike in the salaries of all public sector employees (in 2011). The Kosovo leadership continued to tolerate, or even promote, rampant corruption in all sectors of civic and political life. There seemed to be no accountability on the part of the Kosovo authorities, whether it was tampering with local and national elections, deferring international obligations to institutions such as the World Bank and IMF, or in the promotion of irresponsible rhetoric aimed at Serbia. This utter lack of accountability would never produce concrete results from a dialogue between Pristina and Belgrade.79 One official went so far as to state that:

78 Interview with senior EU official in Brussels, February 2011, Brussels, Belgium. 79 Interviews with officials in Brussels , Belgium and Pristina, Kosovo.

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“Pristina is living in an alternate reality if it does not realize that Serbia is important for the EU. It is not enough to declare yourself independent, the question is to take steps after that to prove that you are worthy of being free. It is not a ‘free for all,’ it requires restraint, hard work and discipline to be called a modern, mature democratic state. From too much control, it seems now there is too little.”80 A third school of thought critical of the ICR/EUSR’s reluctance to exercise executive powers added that this gave too much power to certain members of the Quint, particularly the United States, to exercise undue influence over the internal affairs of Kosovo. It was felt by several officials that the ICO was indeed only as powerful or assertive as the “Quint members allowed it to be”, and that firmer exercise of authority by the ICR/EUSR would have also given the EU more room for influence than it has enjoyed in Kosovo, especially in comparison to the United States.81 Needless to say, the ICR/EUSR remained mindful of his detractors even as he stayed the course in his preference to not use corrective powers. Evidence since Kosovo declared independence seems to indicate that the avoidance of the use of corrective powers was a masterful diplomatic move, and one that became a deterrent to more egregious malpractice on the part of the Kosovo authorities. Institutions were set up and functional, legislation was passed, privatization achieved, international representation established and sound cooperation with EU also established within a short span of three years. All this progress was

80 Interview with senior EU official in Brussels, February 2011, Brussels, Belgium. 81 Internal ICO interviews with staff.

70 Building a State and Exit made without one of the most powerful officials in Kosovo exercising his executive powers. This restraint in the use of executive authority could well serve as a sound example in other interventions in the future. The ICR/EUSR remained the only double-hatted official in Kosovo immediately following Kosovo’s declaration of independence, and the first and only ICR that remained the head of the ICO. The following are a summation of the usefulness and the lack thereof of the double-hat. • The ICR/EUSR retained the two-hat arrangement until it began to lose its utility. He used it in the beginning of his mandate to set a futuristic tone to Kosovo’s state-building initiative and later to ensure that CSP tasks were majorly fulfilled while the EU prepared to assume the reins of leadership in Kosovo. • He established sound relationships with both local and international partners in Kosovo. He did not have a major stand-off with any of the key players as far as critical issues of the day were concerned. His guidance to the other EU presences enabled them to forge a stronger role for themselves, given the specific difficulty of their status neutrality. • He further built regional linkages between Kosovo and its neighbours, ensuring that he travelled in the region to speak to audiences keen to know of Kosovo’s progress, of business and personal opportunities that could be best utilized in advancing a Western Balkans agenda. He was a keen messenger on Kosovo’s progress and aspirations in Brussels, including to the European Parliament, where he

71 International Civilian Office regularly reported on domestic developments in Kosovo and advised on the assistance that the EU could continue to provide in various sectors. • The double-hat remained vulnerable to local manipulations and the ICR/EUSR’s public messages confounded the local population, which remained unaware of the technicalities that separated the man from his dual mandates. To that end, the ICR/EUSR could have worked harder to ensure that he communicated with the local and regional populace, directly or through his interlocutors, so that his two roles were comprehensible, particularly where political sensitivities were involved. • The double-hat suffered from adequate support from Brussels, often leaving the ICR/EUSR an isolated and rudderless figure. This was perhaps the reflection of the confusion in Brussels on the way ahead in Kosovo. The ICR/EUSR always seemed more assured wearing his ICR hat, but even there the presence of powerful Quint members often required him to take a compromised position on contentious issues. In the end, the two hats did not give the ICR/EUSR the autonomy or the support that could have made it more efficient for him to discharge his mandate. • The most valuable contribution of the double-hat arrangement was the progress in Kosovo without the use of executive powers vested in the ICR/EUSR, and setting the stage for an eventual EU presence on the ground. Also, the ICR/EUSR never became a politically divisive figure and was able to establish that

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despite several constraints, he pushed the envelope as far as he could to make his two mandates workable. The ICR/EUSR assumed office during tenuous times when not much was clear as to which way Kosovo would traverse. There were more questions than answers in 2008: Would there be an outbreak of violence following the declaration? Would the institutions that were built be sustained? Would there be an exodus of Kosovo Serbs leaving Kosovo for Serbia and other places? Would there be more recognitions coming in from across the globe in favor of Kosovo’s independence? How would European and American powers carve out their new niche in Kosovo? Could they work together given such divergent political views and foreign policy priorities? Would the peace hold? Could Kosovo find its way or would international hand- holding continue? How would the north be resolved? What of partition, a frozen conflict or a return to violence in the north? What was the future of NATO in Kosovo, to remain at full strength or to draw down, and how would the draw-down schedule reflect reality on the ground? How would the new set-up engage with the residual UNMIK presence? Could an effective EU presence hold in an uncertain political climate? The new international actor in town would steadily attempt to answer at least some of these questions in yet another chapter in Kosovo’s history. 

VI: THE ICO MODEL

The Ahtisaari Plan conceived of the ICO as a light and temporary presence, a gateway to the transition between UN administration and post-supervised status as Kosovo worked toward candidacy for EU membership. To that end, the organization utilized the first three years of its life to implement as much of the CSP as was possible, recognizing that certain tasks may remain unfulfilled within the lifespan of the organization. At the first two and a half year mark, it was stated: “Thirty months on, the situation in Kosovo, though still fraught with risk, is better than many had expected.”82 As mentioned earlier, the ICO began discussions on its exit strategy within the first year of the review of its operation. The team was mindful that fostering local ownership would be the thrust of the ICO’s work in this “post-declaration of independence era,” and that the ICO would need to do its part in the enhancement of local capacities. It remained a small office with just over 250 persons, composed of staff seconded

82 Stefan Lehne, Resolving Kosovo’s Status, Policy Paper, Austrian Institute for International Affairs, 2009, p.16, Vienna, Austria. 74

Building a State and Exit from recognizing and ISG member states as well as contracted national and international staff. Financial support for the organization was a challenge from the beginning and that remained the case for much of its lifespan. The first lesson learned from the ICO experience is that member states must ensure adequate funding is in place before setting up an ad hoc arrangement like the ICO. With a short shelf life, a focused mandate and pressure to ensure smooth deliverables on the mandate and in empowering the local authorities to assume full charge of governing, the organization should not be reduced to soliciting funding at every step. A second lesson drawn from the ICO’s stay in Kosovo is that the limited use of executive authority and an early emphasis on national capacity building earned the organization credibility among the Kosovars. The ICO provided opportunities for national staff to engage in academic study and undertake training to enhance professional skills. Even the subsequent downsizing of the organization served to build capacity of national staff members, as they increasingly stepped in to assume the responsibilities transferred to their enhanced Terms of Reference as international staff members departed. National and international staff (contracted) initially joined the ICO with expectations of a longer life span of the organization and hence some professional stability, as had been their experience in other multilateral settings. However, the ICO’s shorter stay with an emphasis on building professional skills and delivering a timely mandate was ultimately its greatest strength.83 It

83 Interviews with ICO staff, January 2011.

75 International Civilian Office became a viable option as against the mixed record of lengthier interventions of the past. The ICO built vital partnerships with Kosovo authorities as well as members of civil society. Once it was clear the organization had an exit strategy and was not going to unnecessarily prolong supervised independence in Kosovo, the organization enjoyed a remarkable degree of cooperation at every level of the Kosovo establishment. It also helped to have gained some early successes in establishing core institutions that would be fundamental to Kosovo’s sustainability as a new state – the Constitutional Court, the Supreme Court, an Assembly on its way to becoming an effective democratic institution, an Ombuds- person institution, a Central Election Commission – to name a few. Officials in Brussels and Washington have often used the Office of the High Representative (OHR) in Bosnia and Herzegovina (BiH) as a reference for the establishment of the ICO.84 Most have argued that the OHR was a useful model upon which to design the ICO, although the former had a far wider mandate for a larger territory. However, the OHR’s long presence in BiH has made it less effective over time, no longer enjoying the power it once held as the only international executive authority in post-war BiH. The ICO identified institutional limitations early on in its deployment. Issues related to the Serbian Orthodox Church, educational curricula for minority populations, multi-ethnic harmony, fiscally responsible governance and the north were some of the many areas where the ICO would gain only limited momentum. These areas required

84 OHR cited in most interviews conducted in Brussels and Washington.

76 Building a State and Exit longer-term engagements by the EU, bilateral missions, and most important, by the government of Kosovo. The not-yet- accomplished tasks implicit in the CSP appeared consistently in red color within the tracking mechanism of the ICO matrix and it was reported as such to the ISG at every meeting held post-February 2008. The completed tasks were indicated in green. An eventual rebalancing of the organization would take place tied to the completion of tasks. Staff members could expect to be separated from service once the tasks associated with their positions were completed, and those retained would focus on the implementation of the final areas of the CSP. Decentralization in Mitrovicë/Mitrovica remained another challenge direction. Opinions on the north have ranged from some hope that inroads could be made by the international community, to declaring it an outright failure.85 An ultimate solution lay somewhere in between and would be addressed by actors other than the ICO. For the ICR, the double-hat was an asset in Phase 1 of the organization’s life, which focused on institution building. In Phase 2 where Pristina and Belgrade were to engage in dialogue over several technical matters, the double hat was less useful and the dialogue would be an EU-driven process. A third lesson from the ICO’s tenure in Kosovo is the management of the EU-US relationship, where differences in approach were almost always to be expected. Over the course of the first three years of Kosovo’s independent life, the EU and US learned to live with each other recognizing the “special relationship” that the US would continue to

85 The first view had merit in Washington and the second in Brussels.

77 International Civilian Office have with Kosovo, while understanding that Kosovo had a European future. American and European diplomats have criticized each other over the results-based versus process- based approaches that they brought to their diplomatic efforts in Kosovo. This difference was also present in the work-culture of the ICO where American and European positions on policy and process were frequently at odds with each other. The ICO complemented the European and American staff within the organization with an expert pool from other nations, non-ISG, non-EU, who often offered the compromise solution. Future presences may do well to ensure that multi-polarity in international engagement necessitates cooperation over competition; training diplomats more intensively to this end may be a fruitful endeavor. In taking the lead and with US support, the EU was successful in getting a United Nations General Assembly (UNGA) resolution on an imminent Belgrade-Pristina dialogue in September 2010. Serbia opposed an initial draft of the resolution and there was a flurry of diplomatic wrangling over the language of the resolution. Finally, on 9 September 2010, the UNGA declared: “The United Nations General Assembly today welcomed the European Union’s readiness to facilitate dialogue between Serbia and Kosovo over the province’s unilateral declaration of independence”, saying that the process of such talks would itself be a factor for peace, security and stability in the Balkan region. By a consensus resolution, the Assembly also acknowledged the 22 July advisory opinion of the International Court of Justice on whether Kosovo’s declaration of independence was in accordance with international law. In that non-binding

78 Building a State and Exit decision, the Court ruled that Kosovo’s 17 February 2008 declaration “did not violate general international law”. Further by the resolution, a compromise text crafted by Serbia and the 27 member States of the European Union, “the Assembly welcomed that the proposed dialogue between the parties would help promote cooperation, achieve progress on the path to the European Union and improve the lives of the people.”86 A fourth ICO lesson is that the organization remained modest in its scope and refrained from adding on additional responsibilities as Kosovo’s new state evolved. There was a clear and precise space given to the organization in the CSP and the Kosovo Constitution and it remained disciplined and focused on the tasks outlined therein. There were failures as well, particularly in the economic arena where the ICO was unable to engage the local establishment in establishing accountable and transparent economic and fiscal governance. Economic dysfunction and rampant corruption remains a part of the Kosovo landscape. A fifth lesson from the ICO model is that ineffective public diplomacy and local engagement often proves to have mixed result in any mission. Two years into its life, the ICO was still not understood by the local population, was more often than not confused with EULEX, and an unexplained exit strategy brought its own anxiety to people still recovering from memories of war and violence. Ultimately, the organization was not about an individual or two hats, it was about providing hope to those who were keen to

86 Sixty-fourth General Assembly Plenary, 20th Meeting (PM), GA 10980, 9 September 2010, New York, NY.

79 International Civilian Office rebuild their lives away from fear and violent control. Public opinion, as gleaned by ICO officials in personal interactions with the community, acknowledged the work of the US embassy and even the EU in shaping Kosovo’s democratic future. The ICO’s mandate remained mysterious to the people of Kosovo as did the elusive two-hatted ICR/EUSR. Finally, an ad-hoc arrangement such as the ICO with seconded and contracted staff required speedy deployment of specialists to begin work immediately following the declaration of independence. As a consequence, some staff lacked experience and expertise, ultimately affecting the quality of advice extended to the ICR. It is, therefore, imperative to ensure the highest quality of professional experience and excellence in recruitment of staff, if a mission of short-duration is to achieve substantial success. The vision for the ICO was carved in the new style of intervention, rapid, of a short duration and with an emphasis on local ownership. It was to be effective for a set period of time to fulfill a finite number of tasks. Therefore, its imprint on the history of this new period of Kosovo’s life can only be a modest one as are the recommendations that this paper seeks to make for future interventions styled along the ICO model. It can be said that it was the right model at the right time for the right place. We have outlined some of the lessons that this model presents above and these may be useful in further reflections on intervention as global crises only continue to grow. The international intervention debate has intensified since the early 1990’s, following lessons learned in Africa and the Balkans. Since Kosovo is important to the discourse,

80 Building a State and Exit it would be useful to examine the utility of an ICO-style intervention. The international community is rapidly realizing the limits of military intervention as well that of soft power. So are there other ways to create sustainable peace where wars have raged and to restore dignity to disenfranchised people? This paper does not offer theoretical formulations for this question; that is for the scholars to ponder over. What the ICO model can offer are some concrete and practical suggestions from its own experience that may well be emulated in other parts of the globe, as more complex situations present themselves for remedial action. We make four major recommendations to the intervention debate. First, it is imperative to ensure that mandates handed out to organizations that are to implement them, whether sanctioned by the UNSC or not, are time and resource bound. We recommend a five-year horizon to any intervention with staff and resources pledged for the ascertained period by member states committed to the intervention. It is most unfair, if not disingenuous, to hand out as complex a task as supervising a nation’s independence and then squeeze funding for the very organization that is mandated to execute the task. That has sadly been the ICO’s challenge even as it streamlined resources from the very start and throughout the length of its stay in Kosovo. A time-bound deployment also gives staff the necessary commitment and motivation to achieve their maximum potential and build professional relationships with their local counterparts that yield more permanent results. Second, a leaner organization can often achieve

81 International Civilian Office quicker results than a large inter-disciplinary mission that can be weighed down by its own bureaucratic trappings. The ICO had various departments with economists, lawyers, political analysts, security specialists and community affairs specialists; however, the number remained lean and each staff member had exclusive expertise that complemented that of the others. There was no time or manpower for endless discussion on the way to do things, although there was often healthy debate and heated dissension on methods deployed. The job had to get done and it usually got done fairly rapidly. This is further proof of the fact that skilled and experienced staff is a pre-requisite in an organization like the ICO. Third, a small organization necessitates independence of staff and adequate working conditions with well- functioning support units for the substantive departments. The ICO did well here with an administration that supported staff with tools for their work.87 The security unit ensured the safe movement of staff at all times in an area that had known volatile incidents and also ensured the safety of the leadership of the office. The ICO provided a unique independence to its staff, while retaining a well- defined chain of command. Staff members were encouraged to exchange a free flow of ideas, conceptualize their work and then deliver on their slice of the CSP in a timely manner. Unlike larger organizations where promotions often come with toeing a party line and pleasing one’s supervisors at the cost of original thinking, the ICO allowed staff to mingle with peers and superiors as equals and this egalitarian spirit

87 ICO interviews, January 2011.

82 Building a State and Exit is essential to the success of any organization. The world of intervention can indeed use this model to encourage young professionals and keep the more experienced ones engaged in new ideas in newer times. Finally, the ICO model is useful in understanding that success often comes when local ownership is assigned early on to local actors and where the use of authority is kept at a minimum, if it is needed at all. Interventions of the past two decades have exemplified the proclivity (some may say arrogance) of western powers dictating to those that they want to democratize along western lines. The ICO refused to assume a moral high ground in its supervision of Kosovo’s independence and remained the partner of the Kosovar government and the people of Kosovo. Kosovo was to develop on its own terms, within its own cultural and political context, assisted when required and with advice that made sense for Kosovo. It is telling that while the relative youth of ICO staff members reflected the relative youth of the Kosovo institutions, the wisdom of a resolute sense of egalitarianism among the young staff of the organization was reflected in the ICO’s relationship with Kosovo. This was a partnership and not a “superior and yet another” international organization deployed to teach the Kosovars about democracy and statehood. There is much that members of the ICO learned from their local counterparts since most of the international staff members had never participated in a freedom struggle themselves. The ICR insisted on an equal and transparent relationship with the Kosovo leadership and he maintained this stance through the most difficult times in his tenure.

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The ICO is a unique story as much as the same can be said about Kosovo. It yielded an important, albeit modest, function at a time when the appetite for large international deployment was waning. In this new era of austerity measures and caps on funding for new efforts in international peace and security, it is well worth considering the ICO model as a viable alternative. A similar future organization must be well thought through, experienced staff recruited, funding must be secure, and timeframe added to the start and completion of the deployment. This model can assist in building a more effective international civil service comprised of professionals who may not be members of their country’s foreign service and can yet make a useful contribution in international diplomacy. Most importantly, the ICO model empowers the international community as well as the local community that it sets out to support. The international community is more credible when its interventions are focused, have a deliverable mandate, are time and task bound and credible in their egalitarian view of partnerships with local interlocutors. For the beneficiary of these interventions, as the Kosovo case proves, this style of intervention gives impetus to remain faithful to their commitments and to an expeditious assumption of autonomy over their own affairs, an ultimate end-goal of all international interventions. 

VII: DECIDING TO END SUPERVISION

In its sense of the mission's limits, as well as its habits of intervention, the ICO leadership prided itself on not being or becoming Bosnia's Office of the High Representative. 2008 had been the year of the Constitution, 2009 the year of decentralisation. 2010 had been a year of consolidation, focused on achievements like the new municipalities (elections in Parteš/Partesh were held on June 20th of that year) and the Constitutional Court. 2011 saw the first serious discussion and planning for when and how the ICO might conclude its mandate. The ICO had already been getting smaller, consistent with progress. The Security Affairs Unit had formally closed on 31st March 2010, with most of its responsibilities substantially complete (most obviously facilitating demarcation of the border with Macedonia, with other elements of encouragement of institutional and policy development) and a few residual responsibilities and two members of staff transferred to the Political Affairs Unit. The closure of the 85

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Economic and Fiscal Affairs Unit a year later - again with the absorption of residual responsibilities and two staff members into the Political Affairs Unit - had been long planned. In advance of the ISG of 14th June 2010, Sweden submitted a non-paper calling for a “concrete strategy of phasing-out of the ICO, to reflect the level of fulfillment of the mandate”, pointedly emphasising a claim that 90 percent of ICO benchmarks had been fulfilled.88 The US suggested a reduction by 50 percent (but their clear proposals were never produced). Other stakeholders acknowledged the range of factors affecting ICO size, but were mostly cautious about a percentage-based assessment and clear that the time was not yet right to lose the ICO. The June 2010 ISG heard mentions of dramatic downsizing, and vague consideration of the idea of later 2011 as a potential earliest point of closure. But there was no explicit outcome on size or duration of mission. There was consensus – amongst others the EU Council Secretariat representative endorsed a US view – that the ICO should remain a task-driven organisation, albeit as lean as possible. In that June meeting, the ICR expected to have 180 staff remaining on 1st April 2011, and the ISG welcomed “the ICR’s continued drive to rebalance the ICO to reflect progress in the implementation of CSP tasks”89. For the next ISG meeting, at Pristina-level in December 2010, the ICO produced a paper describing in more detail how the April 2011 ceiling of 180 staff would be achieved: noting the Government's

88 Sweden non-paper 10/06/10. 89 ISG statement 14/6/10. The ICR hypothesised, subject to stability, Belgrade engagement and a stronger EU presence, a September 2011 ICO some three dozen strong.

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“considerable strides in implementing CSP benchmarks”, the ICO felt “able to re-direct and, in some cases, reduce resources allocated to several areas”90 – not just the closure of EFAU, but reductions in all Field Offices except Mitrovicë/Mitrovica and cuts in all other units where possible, consistent with tasks; there was also an attempt to reduce non-staff costs. That document was perhaps the first formal articulation that there were some tasks that were long-term, very broad or only possible with the co-operation of other players, with the implication that these factors should influence whether they could remain realistic benchmarks for the ICO. For the February 2011 capitals level ISG in Brussels, the ICO produced a paper on “ICO Goals and Staff Review” covering a new Workplan, which formally disting- uished those tasks that could reasonably be completed within a reasonable timeframe from those which probably couldn't. In endorsing the Workplan, the ISG described it as “remaining tasks that must be completed before supervised independence may end”91 – both emphasising the importance of the tasks but also establishing the end of supervision as the clear and contingent objective. By the ISG of July 2011, funding difficulties and the desire of some European ISG members to cede responsibility for the north to the EU were dominating the debate. The underlying question was when and for what reason the ICO should close, not whether it should. The idea of a non-task- driven end to the mandate had put early closure on the

90 ICO paper “ICO Staff Review” circulated electronically on 8 December 2010. 91 ISG statement issued 8 February, 2011.

87 International Civilian Office table, and it was no more than a compromise when the ICR offered i) a review of timetable in January 2012, and ii) a paper examining the legal and constitutional aspects of ending supervision. In debate, some ISG members were pushing for closure by spring 2012, but there remained wider feeling against a fixed timetable, with recognition of the potential damage to influence that this would cause. Some continued to try to refocus the discussion on a task- driven departure. The November 2011 local ISG meeting produced a stronger endorsement of the intention to complete CSP implementation, with a continued effort in the northern areas, but it seemed clear that in any case closure would happen sometime in 2012.92 Before the November meeting, the ICO had circulated as promised a recommendation on the practical process to determine whether the CSP had been implemented adequately enough to end the mandate, suggesting that it should involve the incorporation of outstanding key CSP provisions to Kosovo's Constitutional and legal framework.93 By the time this approach was endorsed more formally by the capitals-level ISG meeting in January 2012, with a first draft of the proposed Constitutional and legislative amendments that had already been discussed with the Government, completion of tasks had effectively become

92 The proposed operating budget for 2012-13, the 5th year of operation, was presented with the explicit presumption that it would be the final one, giving the mission a latest closure date of 31 March 2013 including liquidation phase. 93 “Recommendations on Constitutional and Legal issues associated with the end of the ICO mandate”, dated 8 and circulated electronically 9 November 2011.

88 Building a State and Exit something that was hoped for in the margins or as a result.94 The organisation had continued to shrink, with a substantial reduction for April 2011 and further reductions during that year – most substantially with the closure of the Field Offices, except Mitrovicë/Mitrovica. Both internal management and stakeholder engagement were focused on working in order to close. The year 2012 proceeded according to choreography. There was a further substantial staff cut for the start of the new financial year on 1 April. A capitals level ISG meeting in July ruled, on the basis of the ICR's recommendation, that the CSP had been substantially implemented enough for the Government to be authorised to bring the necessary Constit- utional and legislative amendment processes to their conclusion. This was managed in time for the final ceremonial ISG closure of the ICO in September. (More details on this process follow in the chapters on ”Managing the policy” and “Reactions and reality”, below.) It is hard to identify a single moment at which it was really decided to close the ICO and end supervision (The ICR recalls a dinner conversation with PM Thaçi and the US Ambassador in January 2011 where the formation of a new government, the end of the double hat and the end of supervised independence, subject to conditions, one year later were discussed.). The final formal decisions were stage- managed, and a contrary decision would have been very surprising and very unlikely. The earlier ISG considerations

94 Implementation of selected CSP measures was still described as “necessary for supervised independence to end” (ISG Statement, 24th January 2012); a hard-fought battle was needed for this to remain “track one” rather than “track two” of the strategy.

89 International Civilian Office and consensus about the issue affected the pace and adjusted the tone, but there was no one yes/no moment, before the outcome had already become effectively inevitable. Throughout this period, there were several factors giving momentum and shape to the decision and the process. Stakeholder attitudes Politically and financially the ICO drew its strength from its ISG stakeholders. Their formal power, meeting three or four times a year, to decide whether to continue the mission and whether to pay for it, was more than matched by their day- to-day influence on the ground. Whatever the ICR's ostensible pre-eminence among Pristina diplomats, and whatever the theoretical executive potential of the ICO, the reality of ICO influence in Kosovo was stark: if an ICR/ICO policy position had the support of the bulk of international diplomats, in particular the Quint (France, Germany, Italy, UK, US) and most especially the United States, it would almost certainly prevail; if it did not have this support, it could not prevail. Once the situation in Kosovo stabilized around the middle of 2008, Ministerial attention diminished and in its higher, “capitals” format the ISG remained an operational- level organisation, with states typically represented by Bal- kan Directors; only very occasionally did the ICO creep higher on the international diplomatic ladder – typically when considered by the EU Political & Security Committee from the EUSR perspective. This, coupled with the relatively very small budget, and the relative lack of priority given to Kosovo in the foreign policies of even ISG nations (the ICO existed approximately from the 2008 NATO surge in

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Afghanistan until the “Arab spring”, broadly concurrent with the global financial crisis), meant that ICO policy was substantially in the hands of operational-level Balkan policy players, and generally subordinate – as was Kosovo policy more widely – to strategic issues such as ISG member relations with and the evolution of the European Union. Once it became clear that the lack of international consensus on Kosovo, after her 2008 co-ordinated declaration of independence, was not a short-term weakness, nuances of opinion began to develop among ISG members. All would continue to pay lip-service to Kosovo's independence, but attitudes to the duration and activism of the ICO differed, especially as the desire grew to give greater profile to the EU's attempts at playing a coherent and positive diplomatic role in the region. Duration and activism, indeed, were seen as distinct issues. The European Commission (providing in theory half of the ICO budget) and the European Council Secretariat (driving European policy on Kosovo) were both ISG members. By later 2010, there was a clear intention in Brussels to try to strengthen its presence and role in Pristina; the impacts for the ICO would be both direct (the end of the “double-hatting” of ICR and EUSR functions) and indirect (a potentially more powerful force on the diplomatic landscape). The Council Secretariat were open about this issue in ISG meetings, and the attitude of a number of EU ISG members to what the ICO should be doing became more conservative, especially with regard to the northern municipalities of Kosovo where the EU foresaw particular

91 International Civilian Office potential for its mediation and rule of law capacity.95 But while the “Brussels” position was wary of the (status positive, activist) ICO – and while the Commission's complicated politics and procedures meant the tightest restraints on funding – some of those same EU ISG members were not in a hurry to close the ICO. Although they did not want the ICO to be in the way of the EU's efforts to involve itself more effectively in Kosovo, nor were they ready to see Kosovo unsupervised.96 The opposite position was taken by countries like the United States: enthusiastic and indeed essential supporters of the ICO's work to facilitate the Kosovo Government's realisation of its sovereignty, especially in the northern municipalities, but eager to see the hand of ad hoc supervision removed from the Government's shoulder as quickly as possible. Those on or beyond the fringes of the European Union took a view somewhere in the middle. They were committed without reservation to Kosovo's independence and territorial integrity, and had yet to see the EU's potential impact demonstrated. These countries – such as Finland, Norway and Turkey – were arguably the most consistently committed to the CSP tasks themselves. Switzerland said to the June 2010 ISG: “If we start downsizing we will be sending a wrong message. We run a risk of downsizing becoming an

95 Most obviously in the July 2011 ISG. The north was presented by two EU ISG members as, respectively, a long-term problem insoluble by the ICO alone, and going beyond the CSP, with the EU-facilitated dialogue crucial. 96 In the July 2011 ISG, at least one ISG member was pushing for the phrase “end of mandate” rather than “end of supervision”.

92 Building a State and Exit objective in itself.”97 Well into 2012 and the final debates around ending supervision, countries like Switzerland and the UK were continuing to focus on CSP implementation rather than the politics. By 2012 there was a credible ISG consensus around the end of supervision, and with that outcome clear the ISG debates of that year tended to be less fraught than previously.98 But there remains the paradox that some motives for closing the ICO were almost diametrically opposite: at one extreme the desire to remove the impression of supervision and leave Kosovo more clearly sovereign; at the other the desire to remove a stimulus for Kosovo Government dynamism, and leave Kosovo more clearly focused on its probationary relationship with the EU. Funding Funding remained the strongest, simplest manner of direct ISG influence on ICO operations. The European Commission and the United States – with generally different attitudes to Kosovo and the ICO, but both in the end keen to see the mission close – between them provided 75 percent of the ICO budget. The “structural deficit” between the total budget and the percentage due to be paid by pre-agreed commitments ensured that every year the ICO would

97 ISG 14th June 2010. 98 Most crudely but clearly reflected in the debates around the end-of- meeting “ISG Statement” issued to the public. In 2010 and 2011, when common language was sought on for example the ICO's role relative to the EU and in the north, the written and then plenary debates were detailed and divisive - especially that for the July 2011 ISG, for which alternative draft sentences had to be offered on CSP in the north and mission duration; in 2012 there was hardly any debate at all.

93 International Civilian Office depend on seeking additional donations from individual ISG members, either non-EU members or those prepared to supplement the contribution that they were effectively making through the Commission. The different and naturally rigorous national funding procedures made ICO budgeting a fraught and uncertain process. The ICO proposed a new funding strategy to the local ISG of December 2010, but none of the options was ever formally accepted. Most ISG meetings in 2010 and 2011 included a plea for funds. At one point in mid-2011, the ICO had cash for no more than six weeks of routine operation.99 This tight budget restraint was of course prudent, and an understandable way of preserving tight control and avoiding the runaway mandates of the OHR or UNMIK. But there was some negative impact on the mission's own sense of sustainability. At a time when the policy discussion was supposedly looking a year or more ahead, the financial discussion meant a horizon of a few months. This did not help morale, and distracted planning. The European Commission would eventually fulfill its commitment until the end of the ICO mandate. But the regular process of securing a Commission commitment and

99 The Pristina-level ISG meeting of 19 May 2011 revolved around a stark budget discussion; the ICR subsequently wrote to capitals (letter circulated electronically 27 May) with the deliberately dramatic message that “we are now talking about the basic survival of the International Civilian Office and the sustainability of the Comprehensive Settlement Proposal… If this EC funding [the next grant was under consideration in Brussels] is not approved, the ICO will close within weeks… our 12 July ISG will be the last moment at which you will able to direct a continuation of the mandate. Without a strong financial commitment and clear political guidance at that point to a continuation of the mandate until March 2012 (or beyond if you so wish), the organization will begin to shrink of its own accord...”.

94 Building a State and Exit then the grant itself became successively harder, with the Enlargement Commissioner increasingly uncomfortable with having to argue the case to the non-recognizing member-states. The Commission no doubt was thinking of the expanding EU mission. Individual ISG members were naturally reluctant to make commitments to a project that seemed to have such uncertain financial support from other stakeholders. The budget experience of 2011 left the ICO leadership with the clear impression that, regardless of policy questions, the mission could not continue on this basis beyond 2012.100 Kosovo attitudes and political realities The ICO was a product of the CSP, and the CSP only came into effect with the Government's declaration of independence in 2008. Although the ICR had executive power over the Kosovo political system, the position only existed because that system accepted the Ahtisaari model of independence and thereby invited the supervision that came with it. The ICO was a symbol of independence, a supporter of the principle and also of the practical efforts to realise it institutionally. But it was also a symbol of supervision and, although the Government knew that the CSP institutions and legislation were intended to help and strengthen the state, at the day-to-day level the ICO was a persistent task- master, trying to restrain the Government (e.g over its fiscal policies), or push it to fulfill commitments that were incon-

100 Funding was also the guarantee that 2012 would bring no surprises: with both the European Commission and the United States determined by that stage to see the ICO close, even had there been some small group of ISG members keen to see a rump ICO last longer it was extremely unlikely they would have been able to afford it.

95 International Civilian Office venient (decentralisation) or politically difficult (laws on the protection of religious and cultural heritage). As the euphoria of 2008 wore off, the institutional attributes of the state were established (Constitution, Constitutional Court, etc.), and the ICO's focus shifted to implementation and the harder elements of minority protection, it was natural that the Government became more ambivalent. The public, meanwhile, saw none of the working-level support and guidance provided by the ICO, and instead only another international supervisor, one that had not opted to take the crusading attitude to corruption that many had hoped for. At the same time, with the state basically functioning the Government had other international voices to accommodate, sometimes with different messages, objectives or attractions: the EU most obviously, but also players such as the IMF and bilateral states. More than once, a senior Government figure commented directly to ICO representatives of the challenge of dealing with such a busy and diverse set of international organisations in Kosovo. As the European machinery began slowly to increase the weight and clarity of its engagement with Kosovo – the dialogue, the possibility of visa liberalisation – the ICO's weight could and did diminish.101

101 While happy to lose one element of international interference, and to be seen to be making progress on the European track, the Government recognised advantages in the ICO: as the Prime Minister said to the ISG in June 2010 “let us not forget that the International Civilian Office is the only European office which is fully committed to our independent and sovereign status. I would not like to lose the support…”. Kosovo Government and public concern in summer 2012 that they were losing the only status-

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EU engagement in Kosovo The ICR was explicit that a strengthening EU presence in Kosovo was one of the pre-conditions for the shrinking and eventual closure of the ICO. As EUSR, it was a desirable objective for him. The two presences were presented as being in direct, inverse relation: as the EU got stronger, the ICO could get weaker. The ICR/EUSR facilitated this directly, by transferring responsibilities from the former hat to the latter. It may seem paradoxical, given the occasionally uncomfortable relationship between the status-neutral EU and the dynamically status-positive ICO, but in reality the ICO was an essential stepping stone towards a more coherent EU engagement – in two ways. Firstly, the fundamental, institutional and constitutional work facilitated by the ICO in areas such as minority rights, democratisation, and religious and cultural heritage protection provided the foundations for subsequent and continuing EU monitoring and encouragement in those areas. Secondly, the ICO gave Kosovo an essential manifestation of international sympathy, commitment and engagement during the period when, because of policy division and institutional weakness, the EU was unable to do so. The summer 2010 ruling by the International Court of Justice, that Kosovo's declaration of independence had not been in conflict with international law, may also have given some impetus to progress. The ruling was a triumphant committed international organisation was, paradoxically, mirrored by concern among those who had only lately begun to engage - principally the Serbian Orthodox Church - that they were losing the only international organisation with a specific blueprint for their protection.

97 International Civilian Office vindication of Ahtisaari Kosovo. But frustration quickly followed in Kosovo, as it became clear that in practical terms the international treatment of Kosovo was changing very little. For the Government, some suggestion of transition and progress in its relations with the ICO was a compensation for the lack of obvious progress on other tracks. At the same time, the ICJ summer saw a practical step forwards in European engagement: Serbia had effectively held the UN hostage, by threatening a destructive resolution and then conceding a resolution in which it was partnered by the EU; meanwhile an exchange of letters between UN Secretary- General Ban and EU High Representative Ashton was a public agreement of EU primacy in diplomatic efforts around Kosovo.102 Brussels's attempts to facilitate dialogue between Serbia and Kosovo followed and, with the US making clear to the Kosovo Government that it supported the dialogue track and would continue to protect Kosovo's interests, Brussels became even more strongly the focus of Kosovo's attention. The idea of an ICO-EU transition was acknowledged and, guardedly, welcomed by the Govern- ment: to the ISG on 14 June 2010, the PM said that “I welcome a future – I hope a near future – of the EU presence in Kosovo to present a position of commitment towards Kosovo’s status, just as the International Civilian Office does today”. In that same

102 “The European Union has a vital role in promoting a dialogue between Belgrade and Pristina, in the context of the European perspective for the region. The United Nations stands ready to contribute to this effort and coordinate closely with the European Union…” (Ban to Ashton, 24 June 2010); “In the period following the Advisory Opinion by the International Court of Justice, we would like to offer our assistance to both Belgrade and Pristina to help them continue in their respective paths towards Europe. Your contribution in areas where the United Nations has unique knowledge and experience will be highly appreciated.” (Ashton to Ban, 08.07.2010).

98 Building a State and Exit meeting ISG members like Germany were explicit in their expectation of a stronger focus on the EU path after the imminent ICJ Opinion, and the EU Council Secretariat promised a stronger, consolidated presence.103 The positive and negative aspects of the double- hatting of ICR and EUSR functions have been discussed in a previous chapter. Over time, the arrangement became harder to sustain. Although the ICO's later work to make decentralisation functional and protect minority heritage was less controversial in terms of Kosovo's status than the earlier efforts to set up the independent state, the EU's growing aspirations made the ICO seem a competitor or obstacle. If the European perspective promised to the Balkans years earlier in Thessaloniki was to be realised, with the Progress Report the central focus of Kosovo's development, then the ICR was a distraction of diplomatic focus and the CSP a distraction of development effort – however compatible the intentions. At the same time, the EU had identified the northern area of Kosovo – where the more homogeneous and entrenched Serb hard-line presence obstructed the reach of Pristina authority and ensured that CSP progress was slower and later than elsewhere in the country – as fertile ground for its mediation between Belgrade and Pristina. This made the ICO, and its work to help the Government implement the CSP across its whole territory, an unwelcome complication. The clear intention in Brussels to end the double- hatting and strengthen the EU presence in Pristina was not

103 Their External Action Service representatives were anticipating the same in the ISG meeting 13 months later.

99 International Civilian Office as easily achieved. The political challenges in Brussels, and the institutional backlog of work to establish the new Euro- pean External Action Service, meant repeated delay. For the ICO and the ICR himself, the issue was a distraction for the second half of 2010 and the first half of 2011. Throughout this time the impending shift in responsibility and perhaps power was anticipated, with an effect on the ICR's flexibility and authority, while its actual implications remained unknown; the EUSR hat became a restriction on activity, but one that could not be lifted. A European Council Decision in August 2010 extended the mandate of Pieter Feith as EUSR until the end of February 2011; a Decision in February extended it until the end of April. On 5th May 2011, the European Council finally took the formal decision to appoint Fernando Gentilini as (single-hatted) EU Special Repre- sentative in Kosovo – with effect from four days earlier.104 

104 Respectively, Council Decisions 2010/446/CFSP of 11 August 2010, 2011/119/CFSP of 21 February 2011 and 2011/270/CFSP of 5 May 2011.

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VIII: CSP PROGRESS 2011-2012

The final operative year of the ICO was characterized by intensified efforts to implement outstanding CSP tasks. The ICR and ISG representatives were able to exert sharper pressure on the Government with the more explicit promise of an end to supervision in return for CSP achievements, and this combined with a determination within the ICO to do whatever was possible, and to define a set of specific tasks that must be accomplished before the CSP could be judged to have been implemented. An understanding was growing within the organization that time was short and would not be extended for any items remaining when the eventual deadline for ending of supervised independence was reached. The matrix-based review of accomplishments was gradually abandoned. In its place a Workplan of outstanding issues was drawn up with three goals: establishing the legal and regulatory frameworks for the protecting of decentralization, community rights, and religious and cultural 101

International Civilian Office heritage; laying the groundwork for Kosovo-sanctioned elections in the north; and providing the necessary conditions for the ISG to end supervised independence. (For more on this process, see the next Chapter on “managing the end of supervision”.) There were various reasons for the progress. Particularly as the working date for the end of supervision drew nearer, the Government was persuaded that the implementation of remaining important and concrete elements of the CSP would send a very important message to international stakeholders; several ISG members convey- ed the message to the Government that their support for ending supervision really would depend on the implement- tation of these remaining tasks. The establishment of a Language Commission and the appointment of a Language Commissioner were pushed through in the last active weeks of the ICO, the appointment of an interim Director for the new Serbian-language RTK channel in the last few days. At the same time, the progress of 2011-12 built on existing ICO momentum and continued commitment. The new Municipalities continued to settle and – particularly while its Field Offices remained open – the ICO continued to trouble-shoot particular issues (e.g. the transfer of responsibilities from Pristina to Graçanice/Grä čanica; the case of the Prizren municipal logo; property/development issues between the monasteries of Visoki Dečani and Peć Patriarchate and their respective municipalities). It continued to support municipal rights in areas such as privatisation, fire-fighting arrangements and provision of water and sewage treatment. The ICO continued to support and

102 Building a State and Exit encourage the Constitutional Court and the Auditor- General, including in their relations with the other institutions. With the ICO under increasing budgetary pressure, and the privatisation process apparently slow, the organisation oversaw the end of the liquidation and liquidation review committees and the change – covered by amendment to the relevant law – to an external liquidation contractor. For obvious reasons, it remained easier both to define as a concrete task and to get the Government to manage the passing of legislation or similar procedural measures, than it was to do the same for their implementation. Nevertheless, 2011-12 saw progress in some key and substantial areas of CSP. The North The north of Kosovo remained the most complex issue for the ICO, with the local Serb majority bogged down in opposition to any engagement with Pristina. The deployment of Kosovo customs staff to border posts in the north in July 2011 sparked wide protests and the death of one of the customs officers. During the summer the Serbs started building barricades across vital roads, manned with conscripted staff from public offices, impeding even the freedom of movement of KFOR troops. In November 2011 the parallel municipalities in northern Kosovo announced an advisory referendum on accepting the institutions of the Republic of Kosovo. The referendum was eventually held on 14 and 15 February 2012, with 99.74 percent of voters rejecting the institutions of Kosovo. With this prevailing climate any thought of attempting to establish a legal

103 International Civilian Office municipal framework in northern Kosovo appeared to be lacking any realism. On the ground, however, there were significant movements in the opposite direction. In July 2010, encouraged and assisted by the ICO office in Mitro- vicë/Mitrovica (ICOM) and with support from select elements of the international community, the Government opened a new Civil Service Centre in northern Mitro- vicë/Mitrovica, and followed this in 2011 with a Centre for Citizens’ Services. These expansions of Pristina’s administrative reach offered car license registration, identity cards, passports, business registration, NGO registration and various other forms of civil registration. The offices were mainly located in the mixed neighbourhood of the “Bosnian Mahala” north of the Ibar river in Mitrovicë/Mitrovica, one of the few areas of northern Kosovo where Serbs and Albanians are mixing more freely. Very soon a trickle of Kosovo citizens from the north were appearing at the service offices to request Government registration and by the spring of 2012 the trickle had grown to a steady stream. Of the more than 10,000 registration requests filed by citizens from the north by May 2012 over 75 percent were from Kosovo Serbs who were clearly “voting with their feet” and accepting that there were benefits to gain from interacting with the Government. Discussions between the Government, the ICO and the international community in 2011 and early 2012 gradually narrowed down to how the Government could extend its legal obligation to provide municipal services to citizens in north Mitrovicë/Mitrovica. Through the Government

104 Building a State and Exit budget subsidy to the UN Office in Mitrovicë/Mitrovica and its UN Administration (UAM) structure there was an implied delegation of this obligation to the UAM. However, the UAM did not provide full services to citizens and there was marked dissatisfaction with the fact that eight UAM Directors were holding positions in the “parallel” municipalities, which reported to the Government of Serbia. The eventual solution was the creation of the “Mitrovicë/Mitrovica North Administrative Office” (MNAO). The MNAO would be a quasi-municipality for north Mitrovicë/Mitrovica and would absorb the functions of the Municipal Preparation Team as well as the main municipal functions of the UAM, such as street cleaning, social assistance and fire brigade service. It would, effectively, serve as an interim governance structure until local elections could be held, thereby reversing the order of institutional steps followed when establishing the new municipalities in the south. It also substantially expanded the role of local citizens in their own governance and in Pristina’s administrative structure. Due to its sensitive nature the MNAO project was not widely advertised, and the opening was arranged without political publicity or hyperbole. The Ministry for Local Government Affairs (MLGA) led the project, with momentum and advice from ICOM and the U.S. Embassy/USAID (in its role as the main donor) in the lead. To minimize any chance of trouble, the launch date was postponed several times due to political imperatives (Serbia’s accession talks with the EU, and the elections in Serbia, which were also held in Kosovo with OSCE facilitation), but on 23 May 2012 the Government passed the decision to establish the office.

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The decision was followed by 55 vacancy announcements for positions within the seven directorates of the MNAO structure. The Serb parallel structures in the north reacted predictably to the MNAO decision, calling it a “destabilizing provocation” and demanding “sanctions in accordance with Serbian law” for anyone who applied to work with the Office. Despite the criticism, and hardline calls for sanctions, the MLGA received 700 applications from all ethnicities for the first tranche of 55 positions in the MNAO during the recruitment period, with at least 100 applicants being Serbs from the north of Kosovo. Following a competitive recruitment process the former chair of the Municipal Prep- aration Team was appointed to the position of Principal Executive Officer, with powers equivalent to Mayors in regular Kosovo municipalities. Interviews for seven Direc- tors and 31 other staff were held by the MLGA over three days, observed by ICOM and USAID, while 13 positions were re-advertised due to lack of experienced candidates. By 1 July 2012 the MNAO was fully operative. The UAM budget had been transferred and services previously provided by the UAM were provided by the MNAO.

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ICO Outreach in northern Kosovo ICO outreach maintained strong focus on northern Kosovo during the last year of operations. A number of excursions for citizens of northern Kosovo to religious and

cultural heritage sites around Kosovo were organized by ICOM as a result of the focus group interviews conducted by the Municipal Preparation Team. The first excursions went to places like Visoki Dečani Monastery, the Peć

Patriarchate and Gračanica/Graçanicë. Later groups visited Prizren and one group even ventured for a day of bowling and shopping in Pristina. The objective was to build a more realistic image of the rest of Kosovo for

people in the north who had never crossed the river Ibar to visit southern Kosovo. The excursions were a real success and many participants commented on how much they valued the opportunity to visit religious and historic

sites and the opportunity to walk freely around Pristina.

Cultural Heritage Laws Adoption of the remaining religious and cultural heritage (RCH) laws according to Annex V of the CSP105 and in particular the laws on the historic centre of Prizren and the village of Velika Hoča/Hoça e Madhe were likewise prioritized issues in the work plan. Prizren is known as the jewel of Kosovo due to its geographic location at the foot of the Sharr mountains and because of the numerous historic buildings in the town centre. Velika Hoča/Hoça e Madhe is a picturesque farming and winemaking village with a rich

105 For the full text of the CSP, please refer to http://www.ico- kos.org/?id=38. 107 International Civilian Office cultural heritage dating back to the 12th century, with a number of Orthodox churches, monasteries, “kullas” (fort- ress towers) and traditional houses. The laws created two advisory bodies, a Cultural Heritage Committee in Prizren and a Village Council in Velika Hoča/Hoça e Madhe, to monitor and facilitate implementation of the Special Protective Zones. Both bodies would have a limited and mainly advisory role as a watch- dog over development projects. Final decision-making com- petence in both cases remained with the municipalities. The two bodies would have a particularly crucial role in resolving disputes between Kosovo authorities and the Serbian Orthodox Church by linking the Church to decisions on planned construction activities. While the laws were in principle equivalent to protective legislation in other parts of the world there were numerous misunderstandings of the character of the Protec- tive Zones, causing widespread local opposition to the projects. In Prizren there was a misperception that the Protect- ive Zone would create an “extra-territorial” area in the center of the municipality where the regular institutions would not exercise their legitimate authority and where the Serbian Orthodox Church would have undue influence. The misperception remained despite a massive public information campaign by the Government and the ICO. Together with the ICR the PM in an unprecedented way participated in meetings of the Assembly functional committee. The two laws were finally adopted on 20 April 2012, one of the most important milestones on the way to ending of supervised independence.

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The Serbian Orthodox Church and the ending of supervised independence The final year of supervised independence saw intensified efforts at reaching out to the Serbian Orthodox Church

(SOC). The SOC was becoming increasingly concerned by the near-time departure of the ICO and, in consequence, the disappearance of Annex V of the CSP as a stand-alone document. To the SOC the Annex V package was the only

viable option justifying to Serbian citizens an important stake that Serbia could still retain. This would eventually have allowed for an agreement between Belgrade and Pristina, through dialogue on the basis of Annex V. There were repeated SOC calls for Annex V to be maintained as a whole package or as a “special law” in its own right. The first-ever formal meeting of the ICR and a senior SOC

representative was held in January 2012, again with calls for an agreement between Kosovo and the EU and possibly with Serbia concerning the status of the SOC. This first meeting was followed by three more meetings in

March, July and September, all with the objective of reducing the concerns of the SOC over the end of supervised independence.

The Public Broadcasting Law The law regulating the public broadcaster RTK (Radio Television of Kosovo) was another important project involv- ing the two main ethnic groups and was an issue of controversy through most of the ICO mission. The EU Office in Kosovo and the OSCE Mission were also involved; for the

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EU the issue was conformity with European law while the OSCE watched over general media freedom. The ICO, as lead agency, was informally tasked with stakeholder coordination. The CSP (Annex II, Article 3.1.j-k) awards the right of the Kosovo Serb Community to have access to “a licensed Kosovo-wide independent Serbian language television channel”, and “guaranteed access to, and special representation in, public broadcast media as well as programming in their language, in accordance with the law and international standards”. This was interpreted by the Serb community and by some members of the international community as meaning a public service television channel in the Serbian language that was fully independent of the Kosovo public broadcaster RTK. The ICO took a different interpretation and worked for a model similar to the BBC in the UK or Swedish language non- majority broadcasting in Finland106, where different geographic, ethnic and language television and radio channels operate within a unified broadcasting house, but with a considerable degree of independence. There were two strong arguments in favour of this model. Firstly, there was a cultural argument, citing the need for national cohesion and for fostering a culture of cooperation between the two major ethnic groups. An editorially independent Serbian language television channel within the RTK would not be “Kosovo Government TV in Serbian”, but would share general values and goals with the public broadcasting company. Editors, reporters and

106 ”Minority Language Public Broadcasting – The Finnish Experience”, Internal ICO memo dated 17 February 2012. 110 Building a State and Exit technical staff on both sides would be obliged to work together across the language divide, fostering bilingualism and respect for the culture and language of the opposite community. To create a separate Serbian language public service broadcasting house would on the other hand be to cave in to a ghetto mentality according to which Serbs and Kosovo Albanians are fundamentally unable to cooperate on a common project. There was, secondly, a fiscal argument: Kosovo is a country with limited economic means and having both language channels within the same company would create viable options for sharing infrastructure and administration. An event could be covered by one camera team and two reporters, instead of two complete editorial teams. Studio facilities could be shared rationally. In order to guarantee the economic independence of the Serbian language television channel a provision was included in the proposed law to allocate the channel a fixed 10 percent of the yearly budget of the RTK. Creating a reasonable level of editorial independence was a more complex issue. The Serb caucus in the Assembly of Kosovo initially demanded full control over the right to appoint the director of the Serbian channel. This was rejected by the ICO, as it would have politicized the position. The second proposal from the Serb caucus was to put the appointment into the hands of a panel of Serb politicians and NGO representatives. This was also rejected on the same grounds as the first proposal. The compromise proposal, elaborated by the ICO Legal Unit, was to create a nominating panel with a Serb majority representing civil society and media. There would still be a competitive, transparent recruitment process and the actual decision would remain in the hands

111 International Civilian Office of the RTK Board, but the Board would have to choose between two or more candidates from a shortlist of competent applicants proposed by the nominating panel. This proposal was accepted by the Serb Assembly caucus and the law was finally adopted on 29 March 2012. Finally, in the last days of the ICO’s formal mandate, the Government and Assembly appointed an interim Director of the new Channel. Dealing with the Past and Reconciliation Article 2.5 of the CSP states that “Kosovo shall promote and fully respect a process of reconciliation among all its communities and their members. Kosovo shall establish a comprehensive and gender-sensitive approach for dealing with its past, which shall include a broad range of transitional justice initiatives.” In the work plan for the final year this was operationalized as a commitment to work with the Government to adopt a strategy supporting reconciliation and dealing with the past. Through a secondment from the Government of Switzerland the ICO employed a Special Advisor for Dealing with the Past to be responsible for the various activities supporting the project. Kosovo had experienced many years of discrimination, armed conflict and human rights abuses. The entire issue of dealing with the past remained highly sensitive and controversial within Kosovo society and within all ethnic groups and because of this the ICO approach had to be very careful. Following consultations among national and international stakeholders the eventual decision was to arrange a series of workshops with Government staff and civil society, followed by a one day international conference.

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The expectation was that as a result of the workshop and the conference, the Government would assume ownership of the process and decide on a future strategy for dealing with the past. Transitional justice foresees different mechanisms for how past human rights abuses can be addressed and fundamental trust in the society and lasting peace and reconciliation established. The fundamental basis for all the different approaches is the right of individuals and society – "bottom-up" – to know what happened in the past and have the facts about war crimes and gross violations of human rights established. The objective of the workshops and the concluding conference was to offer a platform for the Government, civil society and the international community to meet and discuss the institutional framework and needs of Kosovo in dealing with and knowing about the events of the past. The ICO also wanted to ensure that the Government would lay the basis for continued engagement in dealing with the past and the reconciliation process after the end of supervised independence, specifically by establishing a working group and a permanent secretariat. The four workshops went ahead from early 2012, with one event per month, covering respectively Truth- Seeking, Rehabilitation of Victims, Criminal Justice and finally Reconciliation. For each of the workshops a renowned international expert was brought in and was also used for outreach activities and public lectures at the University of Pristina. The low-key approach of the workshops had the desired effect of lowering the degree of

113 International Civilian Office controversy surrounding the issue of dealing with the past, effectively paving the way for the conference in late May. The Government also responded favourably to the ICO approach and agreed to use the conference as a platform to launch a permanent inter-ministerial working group on dealing with the past. The conference on 22 May was one of the bigger events on the public agenda in Kosovo during the first half of 2012. More than 400 hardcopy invitations were distri- buted and attendance at the conference was very high. The conference was opened by Minister of Justice Hajredin Kuçi, who used the occasion to announce the formation of the inter-ministerial working group, and he was followed by keynote speeches by ICR Pieter Feith, EU Special Repre- sentative Samuel Žbogar, OSCE High Commissioner for National Minorities Knud Vollebaek and by the renowned Kosovo human rights activist Adem Demaçi. The following sessions introduced the subject, discussed mechanisms for finding the truth and concluded with an intensive round- table discussion moderated by a well-known television anchor. 

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IX: MANAGING THE END OF SUPERVISION

Once the direction of travel and the very approximate timetable had become clear, the policy focus shifted towards managing the journey to the end of supervision in policy terms. There were various aspects to this: 1. the protection of the CSP for the longer term; 2. focusing the work of the ICO itself on the remaining tasks, and on closure; 3. related to 1. and 2., sustaining consensus in the ISG and moving the mandate credibly to closure; 4. public presentation of the process; 5. related to all of the above, Mitrovicë/Mitrovica North; 6. the administrative, organisational aspects of moving an organisation of some 200 people to closure. (These are addressed in the next chapter.)

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International Civilian Office

The protection of the CSP for the longer term Much of the work of the ICO had been focused on translating the structures, laws and principles described in the CSP into reality. But by the second half of 2011, when the end of supervision was being considered in practical terms, there remained a number of CSP principles that had not been captured in specific laws, partly because they were more generalised statements of right - most obviously those protecting minority participation and heritage. These latter, for example, had been covered piecemeal in relevant legislation and in the establishment of relevant institutions (most obviously the new municipalities); but it was felt that, in a future Kosovo without an ICR and with a less certain protection for the CSP itself, some stronger and overarching guarantees would be appropriate. There were also a number of technical aspects of the international supervisory presence – including international appointees to key institutions and the executive power of the ICR – that would have to be tidied up. There was also the fundamental question of what should happen to the Comprehensive Settlement Proposal itself. Its distinction and pre-eminence were explicit, and the Constitution itself acknowledged the primacy of the CSP. A debate within the ICO and then the ISG considered various options, including the preservation of the CSP as a separate and superior legal source, and its continuation as an external but not superior authority that the Constitutional Court could consult if it wanted. In the end the desire for the clearest and therefore most robust Constitutional and legal framework, and the

116 Building a State and Exit underlying precept of the CSP that it was to establish a sovereign Kosovo as a "normal" state with a Constitution as the apex of its legal framework, swung the decision. The ISG endorsed the recommendation that a package of amendments to the Constitution and to primary legislation be agreed, to capture the outstanding CSP principles, to make sure that laws pertaining to minority rights and religious and cultural heritage had the maximum protection (specifically, that they became “laws of vital interest” requiring a higher threshold and minority approval for subsequent amendment), and to tidy up the legal residue of the ICO and ICR. Once the Kosovo Constitutional and legal framework thus embodied the CSP more robustly, the CSP would disappear as a distinct and superior legal force. As part of the long-term protection of the CSP, it was agreed with the Government of Kosovo that certain of the ICR's international appointees to Kosovo institutions – including the Auditor-General and three Judges on the Constitutional Court – would continue in office at the Government's invitation. This would sustain their valuable capacity-building role, and give additional reassurance to international stakeholders that Kosovo was seeking the maximum experience and credibility in institutions vital for the protection and reputation of the constitutional framework. The fundamentals of this approach were all laid in an ICO preliminary paper in June 2011 on the implications of ending supervision, and the ISG endorsed a more explicit approach in November 2011. A draft of the Constitutional and legal amendment packages was endorsed by the ISG in

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January 2012. The two packages then began a lengthy process of finalisation and review. To give legitimacy and credibility to this "two-track" process, it was decided to use the established structures and procedures of the Kosovo institutions as much as possible. The process of review and possible amendment by committees of the Assembly was occasionally bumpy, but with close engagement by ICO, joint ownership of the process by the Government, and a generally sincere approach by the committees it moved just fast enough to meet procedural obligations and the overall timetable. The package of amendments to legislation was approved by the Assembly in its first reading in June 2012, just before the ISG met; it passed at second reading, and the package of Constitutional amendments was approved, in Assembly meetings shortly before the final meeting of the ISG in September 2012. These Assembly proceedings firstly gave an appropriate demonstration of Kosovo institutional commitment to the CSP and to a managed end to supervision, and secondly made everything ready in Constitutional terms for the ISG finally to approve the end of supervision and close the ICO. One final aspect of the ICO's preparation of its legacy was the identification of those other stakeholders who could reasonably be expected and asked to take an interest and non-executive responsibility for selected elements. Discuss- ions were held with organisations such as the EU (on religious and cultural heritage), the Organisation for Security and Co-operation in Europe and the Council of Europe (for example, on the hitherto abortive Implemen-

118 Building a State and Exit tation and Monitoring Commission intended to facilitate stakeholder discussions about religious sites), and UNDP to encourage them to focus on such issues – with mixed success. A fuller analysis of Kosovo's progress against CSP principles, with consequent suggestions for longer-term international engagement, was circulated to stakeholders as the ICO closed. The ICR also held discussions with individual ISG members who might continue to champion key values espoused in the CSP, such as with the Swiss Govern- ment, on Dealing with the Past and Reconciliation. Focusing the ICO on closure By 2010, the “Matrix” had established itself as the main tool for focusing and monitoring the ICO's work on CSP tasks. A table of 111 serials with notes and a traffic-light system to mark progress, it was periodically updated in mammoth inter-unit drafting sessions, shared with ISG members and intermittently posted on the ICO's website. It was the fullest attempt to articulate the CSP as a set of detailed tasks, but many of the tasks were open-ended. As the impetus grew for more hard-nosed downsizing, the detail and the scope of aspiration in the Matrix became inconvenient. The February 2011 paper “ICO Goals and Staff Review” was a deliberate effort to replace the Matrix with a management document more focused on prompt completion of the mission. It did two things: firstly, it focused solely on the remaining tasks – a simple but effective shift of focus from the scale of ICO achievement to the ever-narrower challenge; secondly and more significantly, it rearranged the tasks around a division between those tasks that were credibly within the ICO's capacity in a reasonable time-

119 International Civilian Office frame (set out in Annex A of the paper), and those tasks that were longer-term or depended upon (unlikely) third party support (Annex B). This was perhaps the first formal acknowledgement that the political restraints on CSP implementation – principally the non-engagement of Belgrade and the continued division in the EU – were not likely to ease imminently, and that accordingly it might not be possible for the ICO to complete the implementation of the whole CSP within a reasonable mandate length. Once endorsed by the ISG, it was a useful sharpening of the focus of ICO work. It also usefully demonstrated to ISG members and to the Kosovo Government a dynamic approach to downsizing and eventual closure. For internal use, the Annexes of this document became the ICO Workplan, in use by spring 2011. The Workplan, regularly updated, noted the state of play in each task and the necessary or current ICO activities to move it forward; a task formally completed and off the ICO’s radar would move from Annex A to Annex C; a task where the ICO had done what it could and where further progress would depend on other actors would move to Annex B. An updated “Remaining tasks” document of November 2011 refined the Workplan. It focused solely on uncompleted, but feasible elements of the Workplan, grouped under three Goals: ending supervision, the north, and everything else. For the January 2012 ISG, the document containing the draft Constitutional and legal amendments for ending supervision also included a set of “Priority CSP Tasks for the

120 Building a State and Exit

Government”. These were a further step in the continuous effort to refine the specific Government achievements that would count as fulfillment. They took the Workplan tasks of Goal 1 (the “everything else”, under sub-headings for decentralisation, community rights, religious and cultural heritage and dealing with the past) and distilled them into eleven even more specific actions107; the previous Goal 2, holding elections to a new Mitrovicë/Mitrovica North municipality, was to be “addressed separately”. The goal was for the Government of Kosovo to complete the eleven actions listed by the July 2012 ISG.108 The effect of this constant refinement was also to shift the focus from the longer-term, less tangible challenges of implementing the CSP sustainably on the ground to the more immediate, yes/no legislative and administrative achievements that would hopefully facilitate implement- tation. The residual Workplan – by spring 2012 updated on a weekly basis – became a useful internal management tool to

107 For example, the “Remaining task” that “The Assembly passes laws to ensure municipal competencies are respected in line with Article 3, Annex III, CSP.” became the requirements to amend the Law on Publicly-Owned Enterprises, to adopt the Law on Construction, and to amend the Law on Property Tax. 108 Three of them mandated “implementation”: of the Regulations mandating Municipal Offices for Communities and Return, of a Language Policy, and of the Law on Missing Persons. Again, specific sub-actions had been described to measure success. When it came to the ICR's Recommendation of July 2012, a degree of re-interpretation was once more necessary to deem success: on Language Policy, for example, the concrete elements (e.g. appointment of a Commissioner) were as usual susceptible of clear yes/no measurement and were met, while those elements that would have required more dynamic Government efforts to affect attitudes (e.g. public awareness campaign, campaigns to make all official communication bilingual) needed to be glossed a little by referring to the Government's “genuine commitment to the policy”.

121 International Civilian Office focus, encourage and monitor efforts to “tick off” the remaining objectives; it was also a usefully compact tool to encourage the Government to do the same. The process in the ISG The movement towards closure was a reflection of the prevailing attitudes in the ISG but – given the diversity and sometimes mutual inconsistency of individual member feelings – it was also necessary to manage those attitudes in order to ensure a smooth process. While largely steered by ISG mood, the ICO presented to the ISG its 2011-12 evolution as a managed, reasonable process. As ever, the ICO aimed to drive the agenda itself while offering its ISG stakeholders the chance to validate it. The ISG was pushed forward a further step with each meeting: it successively approved the rebrigading of the remaining tasks (February 2011), progress on tasks and downsizing (July 2011), the principle of the legal/ constitutional amendment approach to ending supervision within a year (November 2011), and then the draft amendments, the two-track approach and a further re-working of the remaining tasks (January 2012). Thus locked into the process – by the momentum of its own attitudes to the mission and to funding, and by the logic of the repeatedly refined Workplan – the ISG was enabled to decide in July 2012 that the CSP as now defined had been substantially implemented, and accordingly to authorise the institutions of Kosovo to complete the passage of the necessary constitutional and legal amendments. This done, along with some additional elements of

122 Building a State and Exit

CSP progress, the ISG was comfortable in deciding in September 2012 that supervision could be ended. In effect, the ISG's approval of the approach in November 2011, of the Workplan, of the list of “remaining tasks”, and then of the “priority tasks”, allowed the great sweep of the CSP – with all its aspirations and principles – to be reduced to a short list of implementation steps, predominantly legislative. It was then simple to show the ISG in July 2012 that, the short list having been completed, the CSP overall could and should be judged to have been substantially implemented. Public presentation It was important that the Government of Kosovo, and the Kosovo public more widely, had a clear perspective of the end of supervision of independence – and of it as something which it was in the Government's power to accelerate and deliver by more dynamic implementation of the CSP. At the same time, ISG members in successive meetings were clear that there remained important CSP tasks, including more meaningful implementation of elements that had been translated into institutional or legislative form but not routine operation. It was recognised that a clear date for the end of supervision and the closure of the ICO would be politically hard to step back from – that it would in effect become self-fulfilling. The July 2011 ISG, for example, was clearly focused on the end of supervision but unwilling to fix a timetable; the same was true in November, only ten months before what would become the end date. Accordingly, the public messages, and even the private discussions with the Government, were encouraging

123 International Civilian Office about the increasing proximity of the end of supervision without being specific. The July 2011 ISG “directed the ICR to develop planning, in consultation with the Kosovo authorities, for the final completion of the ICO mandate subject to a further ISG assessment of implementation”109; when the ICR briefed the Prime Minister after the November ISG it was to encourage co-operation to complete tasks “as soon as possible”; in January 2012 the ISG noted “that Kosovo is now in the final stages of implementing the Comprehensive Settlement Proposal (CSP) and [the ISG] will therefore start preparations for an organized end to supervised independence and the closure of the International Civilian Office (ICO), which should be possible by the end of 2012”110. The other consequent factor in messaging was the insistence from many ISG members that the remaining tasks should be presented as an essential, determining element of the process, rather than an aspirational parallel track. Supervision would end if and when Kosovo was judged to have implemented the CSP satisfactorily. In July 2011 the ISG felt that the Government could “aid the efficient completion of tasks by offering sufficient resources and practical commitment to the work and to the institutions”;111 in January 2012 the ISG promised that it would “meet later in the year and, if sufficient progress has been made, will finalize the timetable for ending supervised independence and closing the ICO”112. Even in July, two months before the end of supervision and having determined that the CSP had been substantially

109 ISG Statement 11 July 2011. 110 ISG Statement 24 January 2012. 111 ISG Statement 11 July 2011. 112 ISG Statement 24 January 2012.

124 Building a State and Exit implemented, the ISG Statement still described the final steps in the Assembly “setting the scene” for ending supervised independence.113 Whatever the political and practical reality – and by July 2012 it would have been very hard for the ICO not to close in September – the dignity of the ISG, and the theoretical importance of the CSP, were upheld. Mitrovicë/Mitrovica North A consistent, uncomfortable special case throughout this process was the ICO's work in the north of Kosovo. Given the diverse obstacles to that work – both within Kosovo and without – the achievements were impressive: the opening of three increasingly substantial Government of Kosovo administrative offices there in successive years; the sustaining and steering of the Municipal Preparation Team, which helped to guide spending on citizen-driven projects114 and gave a first taste of transparent, impartial administration to the district; and a tireless programme of outreach with local people that gave essential insights to the Government about its own citizens, started to identify credible and committed community representatives, and fostered a new discourse based on real needs and concerns rather than on identity stereotypes. The office in Mitrovicë/Mitrovica (ICOM)was one element of the ICO that indisputably had goals left to achieve and would, given more time, have continued to

113 ISG Statement 2 July 2012. 114 The ICR’s recommendation of July 2012 noted €1 million invested by the Government for capital infrastructure and economic development projects in north Mitrovicë/ Mitrovica since 2010.

125 International Civilian Office achieve them. But with the wider desire to push the ICO towards closure, reluctance from some stakeholders to countenance a “rump” ICO presence pursuing a narrower set of tasks, and uncertainty about whether elections to a new Mitrovicë/Mitrovica North municipality would become feasible in the short or even the medium term, this was not possible. Some stakeholders would have liked to see a continued ICO effort in the north. But they were out- numbered by, on the one side, those who supported dynamic progress in the north but did not want the prolongation of an ICO with executive powers to achieve it and, on the other, those who wanted to leave the north to the European Union. Politically and presentationally this left a problem. The CSP and its derivatives, the Matrix and the Workplan, were explicit about objectives in the north. The people of Kosovo, meanwhile, were eager for the ICO to resolve this last unresolved aspect of their statehood: opposition politicians were explicit to the ICR that they thought supervision could not end without CSP progress in the north, and the government were hoping for some way of avoiding the politically sensitive business of taking a lead in outreach themselves.115

115 The June 2011 paper on the implications of ending supervision noted: “steady progress continues in establishing the preconditions for elections. If elections had not happened before the end of the ICO’s mandate, we would have to rely on having established enough momentum in the Municipal Preparation Team, and enough commitment in the Ministry of Local Government Administration, for them to proceed without us. But the Kosovo institutions do not currently look capable of delivering elections without an external actor drawing together political and technical preparation strands, and prematurely abandoning this work would result in a frozen conflict. Experience in other new

126 Building a State and Exit

In terms of policy management, the drive to hone down the remaining tasks against which the Government would be measured meant a shifting of Mitrovicë/ Mitrovica North into the longer-term aspirations, at which the ICO would work while it was around, but which would not hinder its departure. The “Remaining tasks” document of November 2011 described work “with the intent of increase- ing GoK service delivery and profile in Mitrovicë/ Mitrovica North in advance of, and in preparation for, elections”.116 In the “Priority CSP Tasks for the Government” list offered to the ISG in January 2012, it was noted only that “Mitrovicë/Mitrovica North will be addressed separately”; Goal 2 had quietly disappeared from what became the main tool for chivvying and monitoring the Government's CSP work in the ICO's last year. This did not stop ICO Mitro- vicë/Mitrovica's continued substantial achievements in ex- municipalities in Kosovo suggests a significant need for support after the elections, to ensure a satisfactory transfer of competences to the new administration and assist the new administration’s early functioning; this would depend on any follow-on structure, and on bilateral Embassies and other international stakeholders being committed enough to the new municipality to provide this in the absence of the ICO, and to help the Government of Kosovo extend CSP-style decentralisation to the other northern municipalities.” 116 The Workplan requirement to “Hold elections in Mitrovicë/Mitrovica North and establish the new municipality of Mitrovicë / Mitrovica North. (Implied tasks: Ensure completion of MPT’s technical preparation and any necessary political preparation; GoK commits additional financial resources toward the establishment of the municipality, GoK and other actors create the conditions for elections.)” became five tasks covering debate in the north around Ahtisaari implementation, Government funding of infrastructure projects, broader Government presence, structural framework for a new Municipality, and the completion of MPT technical preparations for conditions for elections. The “dependent” tasks from the Workplan’s Annex B had sought an independent commission to review the University of Mitrovicë /Mitrovica North, and a Joint Board for the North and South Municipalities.

127 International Civilian Office tending the Government's administrative reach in the north – 2012 saw arguably the most substantial step forward, the Mitrovicë/Mitrovica North Administrative Office – but in terms of managing the Government and managing the ISG, the end of supervision would no longer be contingent on progress in the north.117 Presentationally, meanwhile, the November 2011 ISG had heard the desire from both ends of the spectrum that ICO closure/the end of supervision not be “held hostage” by the issue of the north, and this became a mantra during the following year. The reality of Belgrade's refusal to engage with the CSP from the beginning, and of the EU's failure to achieve a coherent and dynamic policy, made it unrealistic to expect this CSP task to be implemented within a short and finite term. The end of supervision would be an appropriate statement of Kosovo's relative maturity and relative achievement in implementing the CSP; it would be unfair were recognition of this progress to have been, in effect, blocked like so much else by Belgrade's intransigence. The ICR's June 2012 Recommendation to end supervision noted the progress achieved by the Government and the ICO in the north, but beyond that was a mixture of encouragement and polite concern. 

117 Despite the institutional progress in the shape of MNAO, and wide stakeholder support extending even to European institutions, it proved impossible in 2012 to stimulate the Government to almost any headway on its own Minority Engagement Plan, intended to improve the environment for progress in the north.

128

X: CLOSING THE MISSION

The ICO established early a pattern of getting smaller as tasks were completed. (It reached its peak of staff by the end of Financial Year 2009/10 – 258 plus 18 EUSR personnel – but was shrinking again from the beginning of the new Financial Year, and continued to do so.) By the middle of 2011, eighteen months before eventual closure, there was already a clear assumption that organisationally it was on a downward glide path; the only uncertainty was the effect of other factors – principally funding – on the steepness of that descent. This awareness – and the avoidance of the most dramatic of funding scenarios – enabled the ICO to manage the shedding of staff and assets in a more measured way than might otherwise have been possible. The closures of the Security Affairs and Economic and Fiscal Affairs Units in spring 2010 and 2011, respectively, had individual impacts of course; but the closures were confirmed months in advance, giving individuals some chance to manage the transition and plan ahead.

129

International Civilian Office

By the middle of 2011, some Units at least were allowing natural attrition to bring staff numbers down more smoothly and consistently with tasks. The extreme budget concerns that were building to a peak in the first half of 2011 forced consideration of a near- immediate closure of the ICO's Field Offices. Even once this particular alarm had passed, it was the atmosphere of financial uncertainty and pressure to shrink that drove their closure a year prior to that of the parent organization. Within the overall trajectory of the ICO – the accomplish- ment of many of its tasks, the gradual stepping back from responsibilities, their transfer to the Government, and the acknowledgement that the organisation would not have a medium-term role in ensuring the implementation and sustainability of what it had helped to establish – the timing of the Field Office closures seemed appropriate. But there remained concerns at the time that the very substantial work that had been achieved in the Municipalities was not yet irreversible. European Commission rules, combined with the views of other donors represented in the ICO's Financial Experts Group (the US, Switzerland), guided the disposal of assets. This gave some flexibility in donations, and beneficiary organisations included those whose creation the ICO had formally been most associated with – the new Muni- cipalities. The closure of the Field Offices naturally produced a significant saving in logistical costs – offices and vehicles – as well as in salaries. The continued shrinking of policy units allowed one of the ICO's two adjacent buildings in Pristina to be handed back in May 2011.

130 Building a State and Exit

The two most substantial chunks of the ICO budget were not easily cut. Salaries for contracted international staff, fulfilling roles for which it had not been possible to find staff seconded and paid for by their own country, tended to form around one quarter of the overall budget. For some ISG members, secondees were the easiest way to make a contribution to the budget; but by mid-2011, almost all were under much wider financial strain and being encouraged to second staff to the growing EU mission, which made it even harder to avoid a significant body of contracted expertise. The ICR's international appointees to Kosovo institutions – including the Constitutional Court and the Office of the Auditor- General – made up another approximate quarter of the budget. Their role was judged essential, by their Kosovar hosts as well as by international stakeholders, and despite efforts to change their status within the ICO budget and thus free more money for core ICO costs, most remained in post with status unchanged until the end of the mission. During the process of managing the constitutional and legal transition of the CSP, it was agreed with the Government of Kosovo that selected international appointees should continue in office for two years beyond the end of supervision. With all administrative residue of the ICO due to disappear within three months of the end of supervision, and with some stakeholders clearly against any further presence – particularly one with formal oversight of individuals notionally within Kosovo institutions – an independent commercial arrangement was necessary. Donors were persuaded that the residue of the ICO budget could be used to fund these appointees and this money, with some additional donations, was transferred to an outside

131 International Civilian Office organization, the International Management Group, to administer, along with the technical aspects of the individuals' employment in Kosovo. When the budget for what was expected to be the final financial year of operations, 2012-13, was agreed by the ISG it included the assumption of a liquidation period of up to three months. The latest this could have been, accordingly, was January-March 2013; but in the end a combination of the political momentum and the limits set by the Commission brought this forward. The ICR's executive mandate ended with the ISG decision on 10 September 2012; the contracts of almost all staff ended on 30 September118 and this, for all public purposes, was when the ICO closed. A small residual “Liquidation Team” under the former Chief of Staff, with regular diplomatic protections but no formal role or presence in Kosovo, moved into the ICO Logistics Base away from the centre of Pristina and worked until December 2012 to finish off remaining accounting, legal and administrative tasks of the end of the mission. 

118 A date they were told months in advance to expect.

132

XI: REALITY AND REACTIONS

In its meeting of 2nd July 2012, the ISG agreed the clear determination “that Kosovo has implemented the terms of the Comprehensive Settlement Proposal”119. This bold statement, desirable in order to avoid too much debate around the details, was the result of a continuous and arguably un- avoidable effort to re-interpret and re-define what “implementation” would look like. It was also the result of the credible implementation of the priority tasks that the ISG had set for itself in January 2012, and behind that, more than four years of work by the institutions of Kosovo and by the ICO, establishing the structures and procedures of a state – and applying an appropriate level of international scrutiny and advice but then establishing a process to step away cleanly and completely – in a remarkably short time. The July 2012 ISG authorised the institutions “to proceed to approve the agreed package of amendments to the Constitution of the Republic of Kosovo and to primary legislation necessary to encapsulate CSP principles and end the supervision of

119 ISG statement, 2nd July 2012.

133 International Civilian Office independence”120. There was some debate about the exact sequencing of these elements relative to the ISG's role in the process; in the end, it was judged legally valid and politically sensible for the institutions to approve the amendments first and for the ISG then to have the final word.121 The ISG statement also emphasised “that the principles and spirit that have governed the CSP need to continue in the period after ending supervised independence”122, and pushed for further progress on some residual elements of CSP implementation notwithstanding the decision it had just taken. Rhetorically at least, the implication was that a final decision to end supervision and remove the ICO would depend on the Government's continued good faith in taking the work forward. As a result, the institutions did appoint a Language Commissioner and an interim Director of the Serbian-language RTK channel. On Friday 31 August, the Kosovo Assembly approved the second reading of the package of amendments to primary legislation. On Friday 7 September it approved the package of Constitutional Amendments (and in the same session, making use of the politically-challenging higher

120 Ibid. 121 The uncertainty was over the constitutional position of the ICR and the CSP after the approval of amendments removing them from the Kosovo landscape but before the ISG had formally declared the ending. Eventually it was recognised that, although the passage by Assembly of these amendments would give a public impression of the weakening of the ICR and CSP at the hands of the institutions, the explicit legal reality was that the CSP - and the ICR with his executive powers - remained pre-eminent until the ISG said otherwise, regardless of decisions by the Assembly. Joint public messaging by the ICO and the Government about the timetable of events made this quietly clear. 122 ISG Statement 2 July 2012.

134 Building a State and Exit quorum that had been marshalled, the exchange of letters agreeing the status of the EULEX mission in Kosovo until 2014). The effect of this was that the Kosovo constitutional and legal framework was now clear of references to the CSP, the ICR, and any external source of executive power. The framework was now self-contained and self-supporting. Only ISG validation of the process was needed. The last meeting of the International Steering Group took place in the Kosovo Government Building (to represent the final transfer of responsibility) on Monday 10 September, 2012. Many members were represented at a higher level than normal, to mark the significance of the occasion. Special guests included Ambassadors Ischinger of Germany and Wisner of the United States of America, who had played significant roles in the diplomatic processes leading to Kosovo independence (another key personality, Ambassa- dor Albert Rohan of Austria had to send regrets for health reasons). The guest of honour was President Martti Ahtisaari himself, the architect of the Comprehensive Settlement Proposal and of the Kosovo that it had framed. On the recommendation of the ICR, the ISG approved the following decision and statement: “Following its judgement on 2nd July 2012 that the Comprehensive Proposal for the Kosovo Status Settlement (CSP) had been substantially implemented, and noting that consistent with their commitments the Kosovo institutions have now passed packages of amendments to the Constitution and to primary legislation satisfactorily capturing the remaining elements of the CSP within the Kosovo Constitutional and legal framework, the International Steering Group today declares the end of the super-

135 International Civilian Office vision of Kosovo’s independence, and the end of the mandate of the International Civilian Representative. Following the completion of necessary internal administrative tasks, the International Civilian Office shall close by the end of 2012. With immediate effect, the CSP no longer exists as a separate and superior legal power, and the Constitution of the Republic of Kosovo now constitutes the sole basis for the country’s legal framework.”123 Now a guest in Kosovo, the ICR along with President Ahtisaari and other dignitaries took part in a solemn ceremony of the Kosovo Assembly and, the next day, an international conference marking the end of supervision. President Ahtisaari told the Assembly: “Five years ago I offered to the Secretary-General of the United Nations a blueprint for a sovereign, multi-ethnic democracy called Kosovo. Today we celebrate the full and final adoption of the principles and structures of that blueprint into the institutions, the processes, and the legal framework of an independent, functioning state.”124 Reaction The Kosovo media were generally content to report the ceremonies factually, highlighting the senior visitors and their various statements of support in bilateral meetings with Kosovo leaders. Commentators noted the affirmation of Kosovo's relative stability as a state, but took the opportunity to repeat criticisms of positive discrimination for minorities, and to focus on the continued challenges of

123 ISG Statement, 10 September 2012. 124Ahtisaari speech to Kosovo Assembly, 10 September 2012, available at http://www.ico- kos.org/data/Image/President_Ahtisaari_Kosovo_Assembly_eng.pdf.

136 Building a State and Exit corruption and the north. The Vetëvendosje (“Self- Determination”) movement, traditionally critical of the peculiar international constitutional arrangements surrounding Kosovo, questioned whether supervision was really ending given the continued roles of KFOR and EULEX. Referring to the ceremonies surrounding the end of supervision, leader Albin Kurti said that Kosovo was getting “more circuses because it was getting less bread”. Vetëvendosje maintained their criticism of the special protections for minority communities in the Constitution.125 Among the public, in so far as mood can be summarised, there appeared to be subdued satisfaction in the vote of confidence in the state, and in the departure of one of the suite of ad hoc international missions; but those still frustrated by the failure of independence to bring economic improvement or clean government perceived little impact in the end of supervision, and those antipathetic to the Government felt that it at least needed prolonged and more aggressive supervision.126 Kosovo's minorities, and in particular Kosovo Serbs, were more explicitly worried by the end of supervision, feeling the vulnerability of their institutional protections and seeing the ICO – and a CSP superior to the Constitutional

125 See e.g. koha.net for 11 September 2012, available at http://www.koha.net/arkiva/index.php?page=1,13,114790&s=&f_d=20 12-09-10&t_d=2012-09-12&ch=2,13,31,14,15,16. 126 In his round of meetings with Opposition party representatives to explain the process of ending supervision, the ICR heard three themes consistently: polite approval of the impression of international validation, criticism of the Government, and concern that supervision was ending without further progress in the north.

137 International Civilian Office framework – as better guardians of their interests.127 One of the more exhaustive and earnest reviews of Kosovo and the ICO at the end of supervision was produced by the International Crisis Group. It drew attention to the fragility of the Serb minority's political and economic position in Kosovo, and in particular that of the new municipalities. Significantly, the emphasis was not on the legitimacy of the CSP, but on whether it had been implemented fully and enduringly: “Kosovo has implemented much of the Ahtisaari Plan… and deserves to be fully independent, but there should be no slippage, and remaining parts of the plan should be honoured.”128 Serbia and Kosovo were urged to improve their cooperation, and the specific recommendations for the Government of Kosovo focused on improved respect for minority and municipal rights, following the first recommendation to “Honour the Ahtisaari Plan fully after the end of supervised independence”129. A slightly earlier report by KIPRED noted “successes in implementing the provisions of the CSP such as the creation of new Kosovo Serb majority municipalities, decentralization, protection of religious and cultural heritage, adoption of national symbols, flag, and anthem reflecting its multi-ethnic character, the establishment of a multi-

127 In the last days before the Assembly approved the package of Constitutional amendments, the minority parties made a desperate but procedurally too late attempt to insert additional protections for their representation in the Assembly. 128 International Crisis Group Europe Paper No. 218 Setting Kosovo Free: Remaining Challenges, published 10 September 2012 and available at http://www.crisisgroup.org/en/regions/europe/balkans/kosovo/218- setting-kosovo-free-remaining-challenges.aspx. 129 Ibid.

138 Building a State and Exit ethnic Kosovo Police (KP), and gradual inclusion of non-majority communities in public institutions.”130 But the report also had other concerns: “This celebration, however, will miss Kosovo’s real problems: it remains divided internally and with limited legitimacy internationally. Besides that in general there is a lack of implementation of the passed legislation, Kosovo has deep problems with basic democratic functioning. The northern part remains de- facto divided, a situation which risks undermining all the successes in the south.”131 Conclusion The relative lack of drama or upheaval surrounding the departure of the International Civilian Representative and the end of the ICO mandate is perhaps one of the best testaments to their achievement. The work of the Kosovo institutions continued on 12 September and thereafter with no apparent change of effectiveness or confidence, because of the level of functionality and maturity that the ICO had helped them attain and practise. The CSP had intended the ICO to offer not open-ended reinforcement and co-governance of the Kosovo state, but limited-term supervision and enabling. For much of its existence the ICO was focused on the achievements that would be necessary to allow its own departure. It drove towards that goal with determination, it used the leverage of ending supervision right to the last days to secure positive developments that might not otherwise

130 Kosovo Institute for Policy Research and Development Policy Brief No. 1/12 - August 2012 The Unsupervised State: Internally Divided, Internationally Half-legitimate. 131 Ibid.

139 International Civilian Office have happened, and it departed smoothly because of the functioning system that it left behind. For Kosovo, 10 Sep- tember, 2012 was a positive and significant step not only because of what it said about the development of the state, but also because it stripped away from the state much of the ad hoc international superstructure, and left Kosovo's citizens and politicians in more direct and unmediated relation. There is a valid debate about the duration and activism of the ICO. It closed before some of its most important achievements (in particular functioning municipalities with minority community representation and protection) could be deemed irreversible. It did not achieve one of the single most substantial and important aspirations – a new municipality of Mitrovicë/Mitrovica North – nor have time to build on the significant changes that ICO personnel had started to make in the political environment and Government reach in the northern areas of the country. It took no exemplary action against Kosovo officials or institutions, disappointing many outside and some inside the organisation. This was partly the result of a deliberate calculation: that a Kosovo political system making mistakes and bad decisions and being accountable to its own citizens was more desirable than one never forced to deal with the con- sequences of mistakes and bad decisions and always able to pass responsibility to an international nurse. The wisdom or otherwise of this calculation will only be seen in time, and will depend on the ability of Kosovo's political system, judiciary, civil society and voters to regulate each other. The ICO's duration and activism were at least as

140 Building a State and Exit much the result of the international political circumstances in which the organisation had to operate. The failure to achieve unanimous UN Security Council support for CSP – and thus the de facto reinforcement of Belgrade's policy of intransigence, indifference and interference – meant that some goals were simply impossible. The disproportionate obstacle presented by the five EU non-recognisers, and the aspiration in Brussels to use Kosovo as a proving ground for European diplomacy and institutional development regardless of the policy division or the situation on the ground, meant that the ICO and the European institutions (the Commission Liaison Office, EULEX, and even the EUSR function vested in the same person) were pursuing subtly different and sometimes conflicting agendas. In many areas differences could be minimised within the broader scope of shared values. But there was significant impact on the ICO's effectiveness in the north – where its achievements and momentum despite all of the obstacles demonstrate what might have been possible without them – and the longer-term impact on the interests of the people of the north, who have endured a longer period of political, legal, economic and social stagnation than might otherwise have been necessary, remains to be seen. Deus ex machina interventions by the ICR against individual politicians (of the kind that the High Representative in Bosnia has done) might have won temporary popularity and satisfaction among the Kosovo population, but it is very unlikely that they would have addressed the underlying weaknesses that prompted and facilitated corruption or (in the case of certain Mayors)

141 International Civilian Office resistance to minority protections.132 Such interventions would, moreover, have prolonged a pattern of apparently capricious rule by an unelected authority, more familiar from Kosovo's experience in Yugoslavia. If the ICO's aim was to develop the functionality of the Kosovo state, preparing it for unsupervised independence, it was important to leave the tenure of her politicians as much as possible in the hands of her citizens. A more effective and positive lesson for Kosovo would be that politicians should be subject, not to the feelings of an unelected external governor, but to the law. This was EULEX's role, not the ICO's, and the rule of law mission has indeed pursued a series of corruption cases. EULEX's failure to imprison any top-level figures may have frustrated popular emotion, but it reinforces the lesson that justice should follow evidence. The longer-term and more fundamental protection for a democratic Kosovo would be a truly independent, clean and capable judiciary; the CSP helped to establish the structure of this (and even if politics creeps into the deliberations of the Constitutional Court, it has in general established a precedent of law over poli-

132 There's no way to be sure whether the use of the executive powers would or wouldn't have worked in some cases. Would the removal of a Mayor for obstructing CSP protections for minority religious heritage have delivered a firm demonstration of the seriousness of the issue and, by depriving him of power and patronage, have been punishment and deterrence, or would it have made him a popular hero, replaced him with someone little different, and further polarised debate in Kosovo around the ethnic axis? Would the annulment of a reckless and populist Government spending measure have protected the budget and been a firm lesson in prudence, or would it have encouraged the politicians to continue with even more foolish promises in the knowledge that the ICR would protect them from the effects?

142 Building a State and Exit ticians), but the longer-term development and mentoring role has been EULEX's. Notwithstanding those points, a closer harmony between ICO and EULEX in their objectives for the Kosovo political and judicial system might have helped. The original CSP idea that the ICR would provide political guidance to EULEX was lost against the suspicion of ICO, and the more powerful political guidance coming from Brussels. Even leaving aside the independent and subtly contradictory impetus coming from Brussels, the ICO was limited by its other stakeholders in its real power to intervene effectively. The CSP had established the ICR as the pre-eminent international diplomat in Kosovo. But failure in the UN left the Special Representative of the Secretary- General as an alternative figure in the background, and the divisions and deeper motives in Brussels meant that its de facto representative on the ground – first the head of the European Commission Liaison Office and from May 2011 the one-hatted EU Special Representative – offered an alternative voice of international collective guidance. This arrangement, less tidy than that foreseen in the CSP, weakened the ICR's pre-eminence. Meanwhile, all of the ISG Embassies in Pristina were naturally pursuing their interests independently as well as through the ICO. For some smaller ISG members, the ICO was an amplification of their interests and influence. But for those able to exert pressure on the Kosovo Government on their own, the ICO was one diplomatic tool among several: sometimes a convenient front to demonstrate community consensus, sometimes a lead representative to follow, sometimes a partner to bring in for support – and sometimes an inconvenience to be quietly left

143 International Civilian Office aside. For all the institutional and personal gravity of the ICR, and the potential energy of the executive powers, the reality of ICO diplomatic weight was limited: it would need to bring along some of the individual diplomatic heavyweights if it wanted to intervene successfully with the Government on a difficult issue (whether Government fiscal policy or implementation of religious and cultural heritage legislation); and if those heavyweights disagreed, it could not intervene successfully. As discussed above, in the end the life-span of the ICO was fixed by its stakeholders and, for different reasons, they felt that it had reached the end of its usefulness by 2012. An ICO with a longer and more certain mandate, backed by a more certain budget, might have been in a position to manage a more nuanced trajectory in developing the Kosovo state, with selected interventions and tighter control early on, a more strategic approach to the establishment and nur- turing of self-confident and functioning judicial and municipal institutions, and then a gradual stepping back. A four- year ICO, which spent the first half of its life putting in place the major structures of the state and the second half struggling to survive, did not have this luxury. On 10 and 11 September, 2012 the Kosovo Govern- ment was naturally keen to celebrate another success coordinated with the international community, and to draw a line under international supervision. Nevertheless, several speakers emphasised the future obligations that remained. The ICR observed that the ISG: “also feel that more needs to be done, and I agree. Leaders and Representatives of Kosovo, I urge you to complete the vision of

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Martti Ahtisaari: power sharing and government based on European values and traditions, not on ethnic difference; drawing together all communities within the nation, opening contacts and dialogue with the Serb community in the North and moving towards reconciliation and tolerance in the region.”133 President Ahtisaari noted to the Assembly “a unique achievement in the history of Balkan diplomacy: the closing of an international mission”134. It was appropriate that his words best summarised the role and success of the CSP (and of the organisation that had been its guardian), and best captured the enduring challenge: “The Comprehensive Proposal offers Kosovo the possibility of stability, prosperity and good governance. Whether that possibility becomes reality depends on the people of Kosovo, and in particular on you, their democratic representatives. It is in your power, and your power only, to make Kosovo prejudiced or tolerant, to make Kosovo corrupt or fair, to make Kosovo a failure or a success.” 

133 Feith speech to Kosovo Assembly, 10 September, 2012, available at http://www.ico-kos.org/data/Image/PF_ICR_speech_eng.pdf. 134 Ahtisaari speech to Kosovo Assembly, 10 September, 2012, available at http://www.ico- kos.org/data/Image/President_Ahtisaari_Kosovo_Assembly_eng.pdf.

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