After K.Serbs left the institutions: Kurti in the 1990s, Serbs in the 2000s

Dragutin Nenezić
Dragutin Nenezić je pravnik iz Beograda koji više od deset godina radi na Kosovu i Metohiji. Tokom rada u advokaturi, savetovao je i zastupao stranke u privatizacionim i imovinskim sporovima pred prištinskim sudovima, i vremenom se profilisao kao ekspert za pitanje imovine na Kosovu i Metohiji, u kom svojstvu je učestvovao u različitim forumima i inicijativama. Trenutno radi kao konsultant u oblasti infrastrukture, energetike i ekologije, kao i javnih politika.

By Dragutin Nenezic (Text written on Monday morning)

Many questions are being raised after Saturday’s events, some of which I will try to answer in this text. At the same time, I have to say that this is a very changeable situation, with plenty of unknowns and events that will inevitably occur after this text is published. We know that an (essentially political) decision was made for the Serbs – mainly in northern Kosovo – to withdraw from the institutions of the Pristina legal system, but we still do not fully know how that decision will be implemented, nor how long it will last, especially bearing in mind the term „suspension” – used in the text of the conclusions. Therefore, this text should be viewed as an initial reflection of the possible legal consequences of such a decision, one that will require an update over time.

Legal consequences – institutions

For starters, the Serbs did not decide to leave all institutions they participate in within the Pristina legal system, but „the Assembly, the Government and four municipalities in the north of Kosovo, but also to leave the judicial bodies, the police in the north of Kosovo and administrative sector in four municipalities in the north of Kosovo“, so I will briefly analyze the possible legal consequences for each institution individually.

With all 10 Serbian MPs stepping down from their posts, the Assembly will be completely paralyzed when it comes to the adoption of acts for which the Pristina constitution requires a majority of votes of MPs from the so-called non-majority communities. This includes, among other things, amendments to the constitution itself, as well as laws regulations, among other things, territorial arrangement, the rights of the so-called communities, use of language, local elections, protection of cultural heritage, and freedom of religion, as well as agreements with religious communities. Although it is possible to replace these MPs in theory, the current political practice does not allow this. Therefore, parliamentary elections are the only way to do it.

The government can continue operating without a Serbian representative without major complications, so I will skip that – especially since the formation of Kurti’s government already set a precedent as a Serb was not appointed as the deputy prime minister at the same time. Therefore, the role of the Serbs, even before their withdrawal, was primarily limited to Ministry for Communities and Returns.

At the local level, the withdrawal by councilors can qualify municipalities as non-functional under the Pristina Law on Local Self-Government, so it can be expected that the assemblies of such municipalities will be dissolved by the government, followed by local elections. In the meantime, it remains to be seen to what extent the withdrawals will take hold in the municipal administrations, the consequences of which will primarily affect the citizens of those municipalities.

As far as the judiciary is concerned, I would refrain from making any analysis here since there are no details yet on the extent of withdrawals in judicial institutions. Regardless of that, even before this, Pristina neglected its obligations listed in the corpus of Brussels documents in the field of justice (especially when it comes to obligations related to the composition of judicial panels), and similar behavior can be expected now – for example, „creative“ interpretation of the jurisdiction of the supreme court, which could take over the jurisdiction of the basic court in Kosovska Mitrovica.

Finally, as far as the police are concerned, the situation there is particularly interesting, given that the withdrawals from the police recorded the highest numbers, and advanced the farthest. For starters, according to the Pristina Law on Police, the procedure for appointing commanders in municipalities with a Serbian majority requires the participation of the municipal assembly, which is currently impossible to implement. This raises the question of who will take care of order and peace in the municipalities of the north of Kosovo, and thus we arrive at the most interesting field – the role of international missions.

Namely, announcements can be heard that the police stations will be taken over by KFOR and EULEX. If that happens, it will once again show the provisional nature of Pristina’s legal system, which is replaced at critical moments by international missions with their mere presence. In addition, this shows the essentially destabilizing nature of Pristina institutions, which are incapable of being maintained in North Kosovo without a) the consent of the Serbs, who, as it turns out, have been a stability factor in a system directed against them; and b) major security problems, which this announced intervention of KFOR and EULEX should prevent.

Legal consequences – acts

After this short analysis by institutions, I would like to move on to the analysis of legal acts, the application of which is called into question by this withdrawal. It could often be heard that the abandonment concerns of the so-called Brussels Agreement, but it is actually both narrower and wider than that.

First, the so-called Brussels Agreement concerns several areas: the so-called Association of Serb municipalities, police, judiciary, and elections in the north of Kosovo, as well as telecommunications and energy. In this sense, withdrawal concerns only one part of the so-called Brussels Agreement, and its implementation in that part is being interrupted – cynics would say it is self-suspended. A question remains – what about other areas (except the so-called ASM, which will be discussed in the next part of the text), as well as those areas that are regulated by other documents from the Brussels corpus, such as e.g. customs.

On the other hand, abandoning the assembly and the government, as well as the local self-government bodies, directly encroaches into the constitutional matter, so the legal consequences in that sense are much deeper, because it is not possible to apply the constitution, nor to implement Ahtisaari’s plan.

Therefore, it cannot be said that the so-called Brussels agreement is terminated by leaving the institutions, nor does it return to the situation before 2008. It is more right to say that it is some kind of a combination of those two claims, limited to certain areas, and in one part also territorially – to the north of Kosovo.

Also, it can be said that with this withdrawal, Pristina was brought into an unprecedented legal crisis and that for the first time the foundations of its legal system were shaken from within, all the way to Ahtisaari’s plan as the source of Pristina’s constitutionality. In this context, Kurti’s statements seem somnambulistic, thanks to which he joined the ranks of Balkan leaders from the early nineties, such as Mesic or Jovic, who witnessed the disintegration of the system they headed. This may be in some way connected with his reminiscing of politicians from the nineties, such as Milosevic or Seselj.

Finally, this may represent a turning point in the current course of the Brussels process. Until recently, it was a sign of the integration of northern Kosovo into the Pristina legal system, since that integration in the south has already been implemented – within the framework set by Ahtisaari’s plan.

The final stage of that process is reserved for the so-called Comprehensive Agreement, which has recently been reformulated into a framework agreement based on the model of two Germanys. It has now been halted at the very root – i.e. Ahtisaari’s plan, and even if some kind of agreement is reached, any constitutional or legislative intervention necessary for its implementation is, as I stated in the previous part of this text, impossible as long as the „suspension“ persists.

It is also possible that the implementation of such an agreement will require new elections at all levels of the Pristina government (parliamentary and local in the four municipalities in the north of Kosovo), in which probably none of the Serbs would participate at this moment, at least until the „suspension“ ends.

Possible developments

Further developments depend above all on Kurti’s political fate. Since he exposed himself as the most destructive politician in the Balkans and led to a disturbance comparable to that of 1990-1991, it is clear that he has to step down from the political scene, it is only a question of the political mechanism that would have this effect. The participation of KFOR and EULEX in taking over the police stations will be an indicator that Kurti has become a burden for the international patrons of Pristina, so it is realistic to expect his replacement.

On the other hand, the question is what Belgrade will do. Continuous insistence on the formation of the ASM (which in the light of recent events is shown to be completely pointless), as well as on the full implementation of the so-called Brussels Agreement (which, in the same light, appears to be partially dead), means that Belgrade’s position has not changed since the initial one, and in that sense, when it comes to Kosovo, Belgrade currently has the status of a good student for the political West.

If the Brussels process is at a turning point, it seems that it would be expedient for Belgrade to change its position. Since it’s clear that inserting Kosovo Serbs into a legal system that by its nature does not want them is not a good solution, even if instead of Kurti it is headed by Mother Teresa – in fact, the problem lies in the system itself, not in the people at its head, and what is occurring is a symptom of the exhaustion of that system and its fundamental acts – perhaps Belgrade should offer an alternative to that system, or at least define certain guidelines for setting up such an alternative. Instead of the formation of the ASM, it should be the protection of the collective rights of Serbs without territorial restrictions, and instead of the application of the so-called Brussels Agreement, it can be a new political agreement, which does not necessarily have to be „comprehensive“ – it can also be a framework agreement, to the extent that this framework can protect the rights of the Serbs, the Serbian Orthodox Church in Kosovo, as well as the Republic of Serbia.

Furthermore, what is happening also demonstrates that the Pristina system, which is against the Serbs, cannot survive without the Serbs’ active participation because the moment the Serbs leave such a system, it begins to crumble.

Perhaps the time has finally come to define the role of Serbs in Kosovo differently, so that they are not forced to be part of a system that is against them, but that they, as an authentic political factor, engage in the construction of a system that will also be on their side. If this does not happen, the Serbs from the south of Kosovo, where the Pristina system remains intact, will be hostages of Pristina, while the Serbs from the north of Kosovo who, once forced into the Pristina system, lost their jobs due to this withdrawal, will be at the mercy of Belgrade. In other words, Kosovo Serbs are now in a situation similar to that of 1999-2000.

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