The EU mediation struggle in Kosovo-

Serbia talks

Name: Ylli Hoxha

Supervisor: Dr Leslie Vanjimuri

MA International Studies and Diplomacy

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“This dissertation is submitted in partial fulfilment of the requirements for the degree of MA

International Studies and Diplomacy/Globalisation and Corporate Developments of the

School of Oriental and African Studies (University of London)”

Acknowledgments

I would like to express my gratitude to the Foreign and CommonwealthOffice and British Council for financing my studies.

I would also like to thank my family and friends who stayed behind me every step of the way.

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Table of ContentsAbstract...........................................................5Introduction.......................................................7

Literature Review..................................................9Conflict Background...............................................13

What are the issues to be negotiated............................16EU, Kosovo and Serbia state of affairs..........................18

Assessing the EU effectiveness in Kosovo Serbia Dialogue..........21Impartiality....................................................23

Leverage........................................................24Withholding carrots for Serbia, applying special sticks for Kosovo................................................................28With Europeanization image recovery becomes a leverage..........30

Lack of coherence...............................................32Ambiguity.......................................................33

Solutions that disregard EU values..............................37

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Conclusions.......................................................40Bibliography......................................................42

Appendix 1 (Dialogue Chronology)..................................52

Abstract

This paper analyses performance of the EU in the on-going process ofnegotiations between Kosovo and Serbia. The study will try to answerthe question whether the EU has effectively utilized its potential as mediator in this Dialogue. Special attention is given to mediators’ exercise of influence over parties: whether the EU is going to use the accession to resolve the conflict or once again it is going to fail due to the lack of coherence. The paper analyses mediator characteristics through the lens of results, opportunities and expectations. The paper will argue that five non-recognizers of Kosovo Independence weaken the role of the EU as mediator and important international actor. If the EU aspires more important rolein international community it needs to show effectiveness in its backyard. Kosovo-Serbia Dialogue is perfect opportunity for the EU to overcome the image of past failures in the region.

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Introduction

The image of ‘an economic giant, political mouse and military worm’

is how an EU senior diplomat described the European Union, at the

time Catherine Ashton took the office of High Representative of the

Union for Foreign Affairs and Security Policy (thereafter High

Representative). Among a pile of duties and unsettled policies, the

Kosovo-Serbia dialogue has been one of the main political challenges

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since she took charge over the European Union’s foreign affairs.

The mandate to mediate a low intensity conflict in its ‘backyard’

has been perceived as a chance to recover from the image of

‘incapable mediator’ and ‘irrelevant actor’ in international

relations.

The EU, ‘as a global actor committed to the promotion of peace,

democracy, human rights and sustainable development’ identifies the

mediation to conflicts as one of its most important tasks. Aware

that conflict management will be an important diplomatic duty, the

EU has developed capacities and institutions to comprehensively deal

with occurring crises. ‘Mediation efforts are ‘supported through the

full range of civilian and military crisis management instruments as

well as trade and development tools available to the EU’(EC

15779/09). Accession in particular, although limited only to

countries geographically belonging to Europe, has been the tool that

has given the EU the edge over other international actors.

Mediation in the Kosovo-Serbia conflict, the last unresolved piece

of the Yugoslav conflict, is seen as a perfect opportunity for the

EU to apply all the range of instruments at its disposal and

demonstrate effective mediation and maturity, in the aftermath of

the Lisbon Treaty. With parties economically dependent and dedicated

towards accession into the Union, and effective presence in the

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field through its largest mission, the EU has an excellent

opportunity to manage the conflict effectively, and by using its

transformative capacity. Whether the EU has effectively utilized its potential

as mediator in Kosovo-Serbia dialogue is the question we ought to address in this

paper.

This paper analyses the process from the perspective of the

mediator’s performance being able to observe expectations,

aspirations and limitations of parties to the conflict as well as

the mediator. This paper will analyse different characteristics of

the EU as mediator and will discuss strengths and weaknesses

manifested in the process. It will focus on characteristics that

determine the success of a mediator such as impartiality, relative

power towards parties, availability of ‘sticks’ and ‘carrots’,

availability of resources and capacity to build partnerships with

other stakeholders. This paper pays special attention to the issue

of homogeneity, the issue identified as the ‘Achilles heel’ of the

EU in mediation. Finally, the paper will discuss some of the

specific results that bring into surface the tendency of the

mediator towards the achievement of short term goals on account of

the long term objective of integration of the region into the

European Union.

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The study is significant because it assesses the efficacy of the EU

as mediator within a context in which the overall capacities of the

Union can be utilised. Secondly, it deals with the process that is

on-going; consequently there is limited academic research on the

case study of the topic. Thirdly, because it covers one of the most

important niches of ethnic conflicts in the Western Balkans, that

holds the region hostage in its path towards peace, stability and

integration into the EU.

Since the process is on-going, and some of the contested issues are

currently being negotiated in Brussels, this paper will be limited

in observation of the incomplete process. Nevertheless, the amount

of information already available is sufficient to academically

discuss the phenomenon and tendencies of the process.

Literature Review

‘Mediation as a subject has undergone analytical development

alongside its Siamese-twin subject, negotiation, and conceptual

awareness of crucial aspects of mediation has expanded enormously

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over recent decades’ (Stenlo 1972; Kressel and Pruitt 1985; Touval

and Zartman 1985, 2007; Mitchell and Webb 1988; Bercovitch 1984)

‘Mediation is a form of third-party intervention in a conflict with

the stated purpose of contributing to its abatement or resolution

through negotiation’. (Young, 1967, Bercovitch 1984, Zartman and

Touval 1985). Zartman and Touval (1985) consider that ‘it is an

intervention acceptable to the adversaries in the conflict who

cooperate diplomatically with the intervener’. ‘It is a special kind

of negotiation designed to promote the settlement of a conflict’. It

is a negotiation with a distinct role played by ‘a third party, that

is, one not directly involved in the dispute in question‘(Berridge

2005)

The mediator to a conflict needs to be perceived as competent in

delivering impartial results throughout the process. Scholars

consider that mediation by definition, requires the third party to

be impartial on the issue. (Young 1967; Northedge and Donelan1971;

Beridge 2005) Impartiality enables the third party to be trusted by

both parties, therefore reducing fears of distortions while

convening messages between them (Beridge 2005). It is of a crucial

importance that adversaries believe in the mediators’ capability to

propose compromises which are of equal benefit to both and ‘provide

guarantees if this is required by any defaulting on a settlement

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achieved- irrespective which party is guilty’. The notion of

impartiality ‘comes from a popular common-sense image of the

mediator, who stands between the parties and is not part of them;

s/he must not destroy the triadic structure of the mediation’

(Touval , 1982, pp.15).

However, later studies contradict this observation, arguing that a

Bias could also play an effective role as mediator in conflict

management (e.g., Stevens, 1963; Touval, 1982; Touval and Zartman

1985; Zartman, 2008). The condition of effective bias, Touval and

Zertman (1985,pp. 257) argue, ‘is the concomitant supposition that

the biased mediator will deliver the party toward which it is

biased’. Berridge (2005) also agrees that the bias mediator could

become acceptable on two conditions: first, if the third party

believes that the mediator will be impartial on the disputed issue,

and second if he is able to ‘deliver’; its traditional friend. On

these terms, one could explain Zimbabwe’s acceptance of the UK as a

mediator in the conflict with the Rhodesian government, or

Argentina’s acceptance of the US in a conflict with the UK over the

Falkland Islands. In both these cases the parties believed that the

mediators close relations with their adversary will enable them to

produce better results in the negotiating process.

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The second characteristic of an effective mediator is ‘leverage’. To

exercise any degree of influence the mediator needs effective power

over the parties in the conflict. ‘Leverage or mediator power

enhance the mediator’s ability to influence the outcome’( Brookmire

and Sistrunk, 1980; Touval and Zartman, 1985; Bercovitch and Regan,

2004). ‘Persuasion is best achieved not when a mediator is unbiased

or impartial, but when he possesses resources which either or both

parties value’(Kleiboer 1996). According to Zartman leverage arises,

‘first, from the parties need for a solution that the mediator can

provide; second, from the parties' susceptibility to shifting weight

that the mediator can apply; and third, from the parties interest in

side payments that the mediator can either offer (‘carrots’) or

withhold (‘sticks’)’. ‘Theoretically, the more ties mediators have

with a party—and the more disposable goods they possess that the

party values—the greater the potential they have for pressing the

party by suspending ties and denying values.’ (Touval and Zartman,

1985)

As an effective mediator, the third defining characteristic is the

capacity to devote sufficient attention to the conflict. Conflicts

seldom end overnight, thus they require adequate resources in the

mediation. It is of crucial importance that the mediator can

continuously be involved in the process. The benefits derived from

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being constantly involved in the process for the mediator are

familiarizing themselves with key players, enabling the relationship

of personal trust and enabling themselves to seize the opportunity

for breakthroughs. In this respect, Berridge (2005) considers,

international organisations with their secretariats having the edge

over state diplomacies whose interest shift according to their

priorities. Since the maintenance of the attention to a conflict may

be a difficult in the ever increasing world of relationships, the

mediator needs to have strong incentives to achieve lasting

settlement. Self-interest is an important motive that helps

mediators to sustain their commitment to processes that are usually

lengthy, tiring ad expensive.

‘Mediation is as common an occurrence in international politics as

is conflict’(Touval and Zartman, 1985). Berridge brings the note

that 255 out of 300 conflicts appearing between 1945 and 1974

enjoyed some form of official mediation. Mediation in a conflict can

be utilized by individuals, representatives of states, or

international institutions (Bercovitch, 1986 ) . One of the usual

suspects in conflict mediation is international organizations. As

this paper will focus on the role played by the EU as a mediator,

we’ll focus our attention into literature and research conducted

over role of regional and global International organisations in

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conflict management, and then analyse the EU’s capacities to meet

the challenges of mediation in conflicts.

Although the early theorists are critical on the capability of IO-s

as mediators to the conflict, there is increasing success of

regional IO-s in dealing with intrastate disputes. ‘IO’s can

promote peace, but success depends on attributes present in only the

most cohesive and institutionalized organizations’(Chigas et all,

cited at Hansen and Nemeth, 2008). Hansen and Nemeth (2008) argue

that the more institutionalised an international organisation is,

the more effective it will in conflict management, its efficacy as a

mediator in conflict management also depends on if its members share

homogenous preferences and the level of democracy of its membership

is higher.Boehmer, Gartzke and Nordstrom (2004) also agree that the

level of homogeneity within IO-s is fundamental for success in

conflict mediation. ‘Members of IOs may have divergent objectives.

States with partisan interests have incentives to divulge IO secrets

to fellow partisans in a conflict. Thus, IOs that possess or develop

a consensus among members are more likely to be successful in

promoting peace’. In this respect, the regional organisations lead

in front of global IOs, because they have greater homogeneity and

compatible interest’.

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Conflict Background

10 years after NATO intervention and expulsion of Serbian security

and military forces from the province, in February 2008 Kosovo

Parliament declared independence (KA Decission D-001). The

negotiating process initiated by the Security Council and mediated

by the UN envoy, ex-Finnish President Marti Ahtisaari, failed to

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convince the Serbian state representatives to accept the

Comprehensive Proposal for the Status Settlement of Kosovo. After

two years of negotiations with Pristina and Belgrade in Vienna, the

UN Envoy recommended supervised independence for Kosovo with

advanced provisions on Serb minority rights and protections for

religious sights. His proposal failed to get the approval of the

Security Council, threatened by Russia’s Veto. Russia was determined

not to give its consent to any decision that was not accepted by

Belgrade. (Weller, 2008; Fridl 2008)

In its continued efforts to achieve a negotiated settlement, the

Contact Group supported by the UNSG, established a Troika, composed

of US, Russia and the EU, whose task was to facilitate a period(120

days) of further discussion between the parties in pursuit of a

settlement. Wolfgang Ischinger, who headed the Troika, proposed ‘a

status neutral’ solution between Belgrade and Pristina modelled on

the German-German treaty of 1972. The proposal foresaw the

normalisation of relations between Kosovo and Serbia, mutual

recognition of institutional integrity without recognition of

sovereignty as states. (UNSC S/2007/723) But, Ischinger’s proposal

had the same fate as that of Ahtisaari’s. It was refused by the

Serbian Government.

3 years of struggle to find a negotiated solution, exhausted the

local population who were living under an unsettled political

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status. The Quint1 afraid that further delays would result in

violence gave the green light to Kosovo Institutions to declare

independence (Lehne, 2012).

Although Western support to the new-born state was apparent, having

most of the NATO/EU countries recognising Kosovo independence

immediately, strong opposition from Serbia, supported actively by

Russia, made the battle for international legitimacy and recognition

an uphill struggle. 5 since, 100 countries recognise Kosovo as

independent. Decreasing but significant number of states headed by

Russia still doesn’t recognize Kosovo. Importantly for the context

of this research, 5 EU members do not recognise Kosovo, therefore

making the prospect of EU accession for Kosovo uncertain (ICG 2012).

Kosovo successfully became a member of financial organisations such

as the World Bank and IMF, but was unable to find a passage to

membership of international organisations such as the UN, OSCE, IOC,

Council of Europe, where consent of the countries opposing Kosovo’s

independence was necessary.

While Kosovo attempted to make Kosovo independence a reality,

through diplomatic support received from the US and other western

countries in battle for recognitions, Serbia put enormous energy in

its diplomatic efforts to convince countries not to recognise

Kosovo. In line with this objective, in 2009, Serbia ‘sought an 1 US, UK, France, Germany and Italy,

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advisory opinion from the International Court of Justice (ICJ) on

the legality of Kosovo’s Independence’. Through this move it aspired

to transform the political battle of recognitions into a legal

battle and postpone possible recognitions of Kosovo. It has used the

argument that the issue is legally contested and recognition would

be an impediment to the process (Surroi, 2011).

But, In July 2010 the ICJ ruled in Kosovo’s favour, declaring that

Kosovo’s Declaration of Independence did not violate international

law nor did it violate resolution 1244 (ICJ, 2010). Concurrently,

Kosovo asserted that the ICJ ruling not only ruled out that the

declaration of independence was an illegal act, it also acknowledged

the legal continuity of the independent state and UNSC Resolution

1244, which guaranteed Kosovo’s territorial integrity. Therefore,

any presence of Serb institutions in Kosovo is illegal as it is

claimed by the Resolution. Secondly, they claim that the ruling

acknowledges that the declaration of independence was a culminating

act that came after several attempts to come to a negotiated

solution, therefore any future negotiations should not touch over

the issue of Kosovo’s status, but the status of relations between

the two independent countries, Kosovo and Serbia (FPC, 2011). But,

despite the failure, Serbia launched a diplomatic offensive and

submitted a controversial draft resolution to the UN General

Assembly which stated that one-sided secession cannot be an accepted

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practice for resolving territorial issues, and called on a mutually

acceptable solution to be found for Kosovo status via dialogue. EU

and US pressure forced Serbia to amend the initial draft (B92,

2010). As a result Serbia resubmitted a draft cosponsored by 27 EU

member states, which acknowledged the content of the advisory

opinion and called for EU facilitated talks between parties. The

resolution called the EU to mediate the dialogue between Kosovo and

Serbia, ‘to promote cooperation, achieve progress on the path to the

European Union and improve the lives of the people.’(UN

A/RES/64/298)

On the other hand, EULEX’s deployment under United Nations Security

Council resolution 1244 (1999) marked the shifting point where the

international supporters of Kosovo softened their course from the

idea of imposing the independence as ‘fait accompli’ to the

necessity for further negotiations. In this regard, the ‘Six-point

plan’ presented in the report of Secretary General, that came as a

compromise between US and the EU in one side, and Serbia and Russia

on the other, adopted to ensure the legal basis for deployment of

the EU mission. This marked the transformation of the EU Mission

from ‘status supportive’ to ‘status neutral’. In addition, the ‘six

point plan’ enlisted Police, Courts, Transportation and

infrastructure, Customs, Borders, Protection of Cultural Heritage,

as six major issues in which renewed talks between Kosovo and Serbia

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were deemed necessary. This was a huge blow to Prishtina’s plan to

stick exclusively on the unilateral implementation of the Ahtisaari

Proposal (Dzihić and Kramer 2009). At this point, it became clear

that the momentum was shifting on the new platform of dialogue

between Belgrade and Prishtina.

What are the issues to be negotiated

The very first and the main dispute between parties remain

territorial. While Kosovo authorities consider themselves

representatives of an independent state, Serbia continues to claim

Kosovo as part of its territory. Resolution 1244 demanded

‘withdrawal from Kosovo of all (Serb) military, police and

paramilitary forces’ and since then Kosovo is under the protectorate

of an international force led by NATO. Therefore, Serbia doesn’t

adopt an aggressive attitude to implement its claim, rather it

sticks to the claim of sovereignty over Kosovo(ICG, 2013). As the

dispute over the statehood has become a stalemated issue, with

neither side capable of significantly shifting the balance of the

international community on its favour, the contest is supposed to be

addressed somehow, or at some point, although the issue is labelled

as ‘non-negotiable’ (Woehrel, 2013). Until the international

legitimacy of Kosovo is contestable and the status issue is not on

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the table, the process will carry the burden of this fundamental

contention.

While Kosovo authorities hope that the EU will condition Serbia’s

accession process with recognition of Kosovo, this aspiration is

unrealistic until the EU itself remains divided over Kosovo’s

statehood. Five EU members; Spain, Greece, Romania, Slovakia and

Cyprus remain reluctant to recognize Kosovo’s independence (Serwer

2013). Furthermore, the official position adopted by fragmented EU

members is as usual the lowest common denominator that expects

Serbia to respect Kosovo’s territorial integrity as an international

protectorate and not as an independent state (Lehne 2012). This

leaves Kosovo in the rather difficult position of accepting its

incomplete nature of statehood in the relationship with Serbia, but

also with European Union.

The second pending issue, and probably the most difficult part of

the problem, is the frozen conflict in the north of Kosovo. The Serb

population in the four northern municipalities: Mitrovica, Zveqan,

Zubin Potok and Leposaviq, reacted violently on the declaration of

independence by burning border crossing points and invading the

Municipal Court in Mitrovica. Ever since they have rejected

Pristina’s jurisdiction (ICG, 2012; 2013). ‘Serb parallel structures

continue to operate in that area in the fields of security,

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education, health and public services, with Belgrade’s support, thus

undermining Kosovo’s territorial integrity, its domestic sovereignty

and its internal security’ (Pasqualine 2012 ). With Prishtina

institutions unable to extend its control over this part of Kosovo

and the international community undetermined to help them doing so,

the territory has become a safe haven for criminality, smuggling and

tax evasion (Hysa, 2011). In addition to the situation on the

ground, the shrinking of UNMIK defined by the UN SG on his report to

the Security Council on June and December 2008, acknowledges the

need for special arrangements in administration of the ‘Serb

majority areas’ in Kosovo. With his ‘six point plan’ the territorial

contest already apparent in the field has gained international

legitimacy, therefore has become an issue to be settled in future

negotiations between parties. Consequently, in its enlargement

conclusions The EU Council urges Pristina and Belgrade to engage in

dialogue for the North and make ‘irreversible progress towards

delivering structures in northern Kosovo which meet the security and

justice needs of the local population in a transparent and

cooperative manner, and in a way that ensures the functionality of a

single institutional and administrative set up within Kosovo’(EC

PRES/12/517).

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Third group of issues expected to be dealt with in the Dialogue, are

the issues labelled as ‘technical’. These are all accumulated

problems between parties that ‘have a negative impact on people’s

daily lives’ (EU Press 7566/11). Among the main issues listed in

this category are: free movement of people and vehicles, Kosovo’s

representation in regional initiatives and organisations, return of

Kosovo’s Civil and Cadastral Registry confiscated in the Serb

retreat from Kosovo in 1999, management of border points in the

northern borderline, recognition of custom stamps and implementation

of CEFTA agreement, recognition of University Diplomas, issues on

telecommunication and energy. All the problems labelled as

‘technical issues’ are in fact highly political because they derive

from the basic dispute over statehood (Hamilton 2012). They are

considered as technical because of the belief that they represent

the easier part of the procress, adequate to be addressed in the

initial stages of negotiating process, before more difficult issues

are brought up.

The Dialoge already produced results in most of the ‘technical

issues’ except Telecommunication and Energy. More important it had

delivered the First Agreement for Normalisation of Relations between

parties that ought to resolve the problem of the North. However,

parties ended up renegotiating most of the points of this Agreement,

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which we will discuss in following chapters. Full chronology of the

Dialogue is presented in the Appendix of this paper.

EU, Kosovo and Serbia state of affairs

Serbia receives an estimated 200 million Euros annually from

participation in EU programs. Since it became a candidate country

the number of programs is expected to increase and with that the EU

is expected to dedicate more funds to the struggling economy. The EU

remains Serbia’s main trading partner, accounting for 57.7% of the

country’s total exports and 55.6% of its total imports in 2011. The

share of Foreign Direct Investments inflows from the EU reached 88%

of the total inflow in 2011 (EU Progress Report 2012).

This year (2013) the EU Council decided to start negotiations with

Serbia but with German demand, untypically, set the date for start

of negotiations for January 2014. The Council ought to meet once

more before this date to confirm its decision (EUCO 104/2/13).

Although many of the EU countries where satisfied with Serbia’s

progress, German evaluation of the success on the dialogue was not

affirmative enough for an unconditional decision.

Kosovo –EU relations on the other hand are more nuanced. Since NATO

intervention Kosovo has been dependent on the EU. It receives

economic, financial, political and administrative support. ‘Through

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the international donations, the European Commission, and individual

assistance of member states, the EU has been the biggest contributor

to the reconstruction of post-war Kosovo and has assisted this way

the return of hundreds of thousands of refugees. On a per capita

basis, Kosovo is the greatest beneficiary of EU financial aid

globally’ (KFOS, 2013).

But, Kosovo struggles in the EU accession process. EU had severe

difficulties on building a political consensus on the establishment

of formal relations with Kosovo. Since 2000 when the EU announced

accession perspectives for countries of the Western Balkans, Kosovo

could not establish formal contractual relationship with the EU.

Instead, a so-called ‘magic formula’ was devised that allowed

special mechanisms for application of a processes similar to the

official SAP. This meant engagement with Kosovo’s institutions but

with no real expectation for advancement in formal accession. It was

more an exercise for Kosovo institutions whose benefit was

hypothetical, in case the legal obstacle for the formal relationship

will disappear in the future. (KFOS, 2013 )

This left Kosovo far behind other countries of the region in the

integration process. The need for ‘magic formulas’ came as a

consequence of the lack of unity in the EU surrounding Kosovo’s

status. However, legal advice given to the EU Council in 2010, gave

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the green light to negotiate legal ‘framework agreements’ with

Kosovo based on paragraphs 3 and 4 of an Article in the Treaty on

the Functioning of the European Union (TFEU). This meant that the EU

is using its discretion to enter into contractual relations with an

entity that is not a recognized state. A similar legal base was

applied on agreements signed with Hong Kong, Macao and Palestine

(Magdalena 2011). On the same legal bases, the Council decided to

authorise the Commission for the opening of negotiations on a

Stabilisation and Association Agreement between the European Union

and Kosovo in June 2013.

On the other side the EU operates in Kosovo as an organisation with

responsibilities on the rule of law, through its mission EULEX. This

is so far the biggest mission in the Common Security and Defence

Policy (CSDP). Due to the threats from Russia to block the mandate

for the mission in Security Council and due to internal divisions,

the Mission transformed into a ‘status neutral’ that operates under

the authorisation of the UN (Apadimiriou and Petrov 2012).

In January 2011 the Council of Europe adopted the report of Senator

Dick Marty that contained serious allegations of war crimes and

organised crime in Kosovo, implying some high ranking politicians in

Kosovo including the current Prime Minister (COE AS/Jur 46). In

spring 2011, the EU Rule of Law Mission in Kosovo (EULEX), with the

25

full support of all 27 EU Member States, decided to set-up a Special

Investigative Task Force with the view to further the investigation

into the allegations. Prosecution is expected to close its

investigation by the year 2014.

Assessing the EU effectiveness in Kosovo Serbia Dialogue

26

According to Kleiboer (1996) the issue of evaluation of success in

international mediation ‘is a tricky one: evaluation criteria are

often taken for granted, but as soon as one starts reflecting upon

them, they seem to raise more questions than answers’. Authors tend

to generate their own criteria. Some assert that ‘by successful

outcomes we mean producing a cease fire, a partial settlement or a

full settlement’ (Bercovitch, Anagnoson, and Wille, 1991). This

criterion is subjective and could be further elaborated contingent

to the context. Second group of authors ‘equate mediation success

with effectiveness, taking the mediator's, or the parties,

objectives as their starting point’ (Touval and Zartman 1985).

Arguing that neither of the approaches are comprehensive enough

Kleiboer, notes: ‘Success and failure are construed rather than

discovered by the analyst: they are a matter of idiosyncratic

values, interpretations, and labelling, like many other concepts in

the social sciences. This is not problematic as long as embraced

definitions and operationalizations of mediation results are

embedded in a systematic normative and analytic perspective put

forward by the analyst’.

In respect to this, I will evaluate the performance of the EU

through the characteristics of a mediator within the theoretical

framework presented in the second chapter. I will analyse the EU

27

performance based on criterion of impartiality – capacity to deliver

impartial result, availability and application of leverage over the

parties - capacity to use carrots and sticks and devotion of

sufficient attention to the conflict.

I will also discuss the issue of credibility and homogeneity of the

EU as an international organisation in reference to the process.

Finally, I will assess the effectiveness of the mediator through

capacity to match short term goals of mediation with long term goals

of peace building as an international organisation.

EU as a mediator

‘The EU in fact represents the (unfinished) product of one of the

greatest and most successful conflict resolution endeavours

worldwide. It is the outcome of an idea: securing peace in post-

World War II Western Europe through integration and the ensuring the

creation of dependable expectations that inter-state disputes would

be settled in a peaceful manner’ (Deutsch, 1957; Haas, 1968 in Wolf

and Yakinthou 2011). The EU has prioritised conflict resolution as a

foreign policy goal since the beginning of its existence. The

Maastricht Treaty marked the point when the EU started to

consolidate a joint foreign policy which highlighted conflict

resolution as one of the priorities of the Union ‘alongside

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promoting international security, regional cooperation, democracy,

the rule of law and human rights’. From Maastricht to Lisbon the EU

evolved its instruments and mechanisms in foreign policy and as a

part of its conflict management. The Treaty of Lisbon states ‘that

the EU would be ‘guided by, and designed to advance in the wider

world, the principles which have inspired its own creation,

development and enlargement’ (Article III-193(1)). ‘In other words,

having secured peace internally, the Union’s foreign policy vocation

would be to promote peace externally, drawing on and promoting the

principles upon which it was founded. These principles include

democracy, human rights, fundamental freedoms and the rule of law’

(Wolf and Yakinthou 2011). Therefore the enlargement policy comes as

an extension of the already successful peace project whose aim is to

maintain a peaceful Europe.

In reference to Hansen and Nemeth’s (2008) criteria for IO’s

success in mediation, one can assess that EU has become a highly

institutionalised organisation with clear mechanisms and norms that

address its engagement in conflicts. With the vast range of tools,

instruments and supposedly political and economic power at its

disposal, the EU should be a critical and important actor in the

field of conflict management. Its external action managed by the

Common Foreign and Security Policy has been complemented with that

Common Security and Defence Policy CSDP (later ESDP) as its

29

operational element. Within the reform of Lisbon Treaty the European

External Action Service (EEAS ) was established, and within the

EEAS , the Conflict Prevention, Peacebuilding and Mediation

Instruments Division. The High Representative in charge of external

actions has become double-hated serving also as a deputy head of the

European Commission, the EU pillar that operates with highly

attractive financial and trade instruments. Above all, it manages

what I consider as the sweetest carrot, applicable for the countries

in the EU neighbourhood, ‘the membership’ or enlargement policy.

Overall, it could be concluded that the EU has established multi-

layered institutions with capacity to use a variety of effective

instruments in dealing with conflict management.

Impartiality

The EU, as a union lead by its core members; the UK, France and

Germany, could be easily labelled as a partial party within the

Kosovo-Serbia contest. ‘22 member states have not only recognized;

they have actively designed Kosovo’s post-independence settlement

and contributed to Kosovo’s declaration of independence, while some

even defended it in front of the ICJ’ (KFOS, 2013). All of them

contributed to NATO strikes against Yugoslavia that expelled Serb

forces from Kosovo in 1999.

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But a closer assessment of its decision making and the discourse

taken towards the problem will provide enough counterarguments to

challenge the claim. Although the EU is the leading donator,

protector and its 22 members states are the main supporters of

Kosovo’s institutions, the EU as a supranational forum, doesn’t have

a unique stand towards Kosovo therefore applies the ‘status neutral’

formula when it deals with Kosovo status. Having 5 EU members

opposed to the Kosovo independence enables the EU to claim

impartiality towards the case. In this regard Veton Surroi (2011),

Kosovo senior negotiator in Ahtsaari process, comments that:

‘Kosovo, by not being recognized as a contractual partner for

the EU has a ‘status negative’ relationship rather than a

‘status neutral’ relationship. Namely, the five non-

recognizing EU countries have the upper hand in determining

the nature of the relationship between the EU and Kosovo. In a

bizarre development, it is Cyprus and Romania, not France and

Germany who are fundamentally influencing most of the policies

of the EU vis-a vis Kosovo’.

On the other hand, according to Berridge (2005) impartiality is not

the condition per se. The parties in the contest should perceive the

mediator as capable of producing an impartial solution to the case,

and not necessarily having an historically impartial record in

relation to the parties. Within this definition parties would have

31

enough reason to believe that the EU was the adequate mediator.

Serbia could expect the EU to deliver Kosovo institutions on the set

of agreements based on the status neutral formula (Gov. Platform

2011). These solutions will enable Serbia to keep its feet on the

open door of Kosovo statehood and gain some ground in the overall

share of power in the province. On the other hand, by becoming an

active stakeholder in Kosovo matters, that have implications on the

functionality of the EU mission itself, Serbia expected to advance

its strategic position towards the EU. That will help her advance

its major goal of integration into the EU. Kosovo institutions

would also be ready to believe that the EU could bring Serbia closer

to the recognition of Kosovo, lifting of obstacles for participation

of Kosovo into international forums, integration of the North and

constructive solutions of other technical problems (Citaku, 2013).

This would apparently be achieved through the conditioning of the

Serbia’s accession process. Constructive engagement by Prishtina,

could also lead to the change of attitude by the 5 EU countries that

didn’t recognize Kosovo, therefore leading to the improvement of

Kosovo’s international position and EU integration process.

Leverage

The second characteristic of an effective mediator is ‘leverage’. To

exercise any degree of influence a mediator needs effective power

32

over the parties in the conflict. According to Zartman (2005)

‘leverage comes, first, from the parties' need for a solution that

the mediator can provide; second, from the parties' susceptibility

to shifting weight that the mediator can apply; and third, from the

parties' interest in side payments that the mediator can either

offer (‘carrots’) or withhold (‘sticks’)’. Theoretically, the ‘more

ties mediators have with a party—and the more disposable goods they

possess that the party values—the greater the potential they have

for pressing the party by suspending ties and denying values.’

(Touval and Zartman 1985)

The EU had enormous success in Eastern Enlargement, where a coherent

and comprehensive platform for the negotiations with aspiring

members was established. Perceived as a very prestigious club of

members the EU used its attractiveness as a very effective tool for

the transformation of the newcomers. Through the Copenhagen criteria

the EU conditioned the accession with policies and goals that

aspirant countries needed to fulfil before the accession. ‘These

included the stability of institutions guaranteeing democracy, the

rule of law, human rights and the protection of minorities, as well

as ensuring good neighbourly relations’(Tocci,2011). Consequently,

the process resulted in one of its biggest success in preserving

peace in its neighbourhood. ‘It succeeded in transforming ten

33

central and eastern European countries from post-communism confusion

into open-market, mature and effective systems of democratic

governments’ (Paul, 2012). Thereafter, the enlargement as its most

advanced form of contractual relations became the most important and

effective tool of the EU for promotion of its values, above all

peace. Therefore, the most valuable leverage the EU possesses over

the parties is the enlargement carrot.

Both Serbia and Kosovo aspire for EU membership and have established

EU integration discourse as one of the prevailing internal political

debates. Kosovo Think Tank proposal (FPC 2011) for dialogue platform

highlights the importance of accession process on the reconciliation

process between parties. ‘Nothing else will persuade politicians in

Belgrade to make meaningful concessions’ other than the accession

promise. ‘The EU has a vital interest in Serbia’s and Kosovos’

stability – and the countries themselves have a vital interest in

the respective EU accession process. A truly ‘Europeanised’ Serbia

is Kosovo’s best insurance against violent Serbian nationalism – and

a stable, economically prosperous and ‘European’ Kosovo is the best

neighbour that Serbia and the EU can dream of’.

The challenge therefore is how to best utilize this opportunity.

Practically, many argue (Surroi 2011, Serwer 2010, Lehne 2012) the

challenge is how to link the process of accession for both countries

with the objectives of the dialogue: the normalisation of relations

34

between parties. In order to do so the EU needs to have clear vision

of what it wants to achieve from the dialogue and where it is ready

to use its most valuable carrot in order to achieve long-lasting

peace between the two countries (Rupnik 2010). Once this decision is

made, then the EU could easily condition both parties accession with

the objectives of the dialogue. There are at least 72 points in the

accession process where the EU needs unanimity to enable the flow of

the process (Kirby M.D. 2013). A smart solution would be stretching

the process of reconciliation between parties over those 70

possibilities of conditioning. This would guarantee economic use of

accession ‘carrots’ while it will enable smooth transition from

conflict stage towards good neighbourly relations of the two new EU

members (FPC, 2011) . Within a framed process of triadic

negotiations with the EU, both Serbia and Kosovo will become members

of the EU based on their own merits, only if they deliver in the

process of normalisation of relations with each other.

The problem with this proposition is that the EU lacks unanimity

over the process and distance between parties in the EU integration

process is increasing. There is a lack of clear ideas within the EU

on the issue of Kosovo. As long as the division regarding the status

exists the EU will have no clear policy over Kosovo (Palokaj, 2013

my trans.). One should note that lack of unanimity over the

enlargement for both countries, Kosovo and Serbia, leaves the EU

35

without the most valuable carrot, therefore diminishing its

credibility as a mediator capable of delivering expected results.

‘Without a credible membership perspective’, Diaz and Albert (2006)

will argue, the EU as mediator ‘loses much of its leverage’. ‘If

enlargement fatigue in the EU spills over into reform fatigue in the

region there will be a risk that the prospect of membership might

either get blocked outright or degenerate into a rhetorical

exercise, a kind of double bluff, in which the EU just pretends to

keep its door open and the Western Balkan states merely pretend to

reform’(Lehne 2012). Moreover, the situation is not symmetrical.

Parties have different nature of relations with the EU and already

have considerable distance between each other in the accession

process. While Serbia is a candidate country for accession into the

EU, Kosovo is the only country of the region that has not started

Stabilisation and Association Negotiations. Although Kosovo was part

of the exercise for EU integration through ‘EU tracking mechanisms’

for almost a decade, this seems not to be sufficient to effectively

embark in the process of integration, even though the legal

obstacles are considered ‘resolved’. All the creative inventions,

processes based on special legal justifications, in fact represent

improvisations whose main purpose is to buy time for the EU to

address its divisions over Kosovo, rather than to produce meaningful

effects. The core objective of these processes ‘integration of the

36

country into the EU’ in the best case remains frozen, waiting for

breach of divergences that will activate it. In this sense, although

Kosovo got the green light to negotiate the SAA with the European

Commission, ‘the long-term achievement for inclusion of Kosovo in

processes of full integration in EU can be achieved only if the five

states that have not recognized Kosovo do so’(cit at Kfos 2013).

Fig 1. Chart-Illustration of the proposal to link the Process of Normalisation of

Relations with EU integration process for Kosovo and Serbia

In this respect Diez argues that ‘if only one conflict party becomes

integrated into the EU while the other side is subject to a more or

less strict external border regime’ reference to the EU becomes

contra productive. So, it is matter of time before Kosovo’s

political spectrum will share the understanding that the membership

37

carrot is not for both parties, it is rather applicable only to

Serbia (Surroi, 2011). This will open doubts that contribution to

the dialogue is about opening the path for Serbia on its pursuit of

EU integrations. Realising that the process would result in

decreasing relative strength for Kosovo due to the deepening

distance between parties in the EU integration process, it will

decrease the incentive for constructive engagement from Kosovo’s

side to the process. In this regard the leading opposition figure

in Kosovo, critical to the Dialogue, Albin Kurti (2013, my trans.),

notes: ‘One can clearly notice that Serbia has been successful on

its objectives, getting what it wanted, both from Kosovo

(arrangements for the north and technical problems) and the EU

(candidate status). On the other hand, Kosovo gave for nothing the

leverage of conditioning Serbia in the EU integration process. And

while Serbia will start to progress and develop through the access

to EU funds, Kosovo will stand still and struggle in its new

internal legal arrangements that in fact are a resurrection of the

failed Bosnian model’.

Withholding carrots for Serbia, applying special sticks for Kosovo

38

Theoretically, the ‘more ties mediator have with a party—and the

more disposable goods they possess that the party values—the greater

the potential they have for pressing the party by suspending ties

and denying values’ (Touval and Zartman 1985). Because Serbia can

peruse a normal accession process, the EU needs to follow its strict

enlargement policy over Serbia. ‘The EU will have leverage over

Serbia so long as it is a candidate, which may well be another

decade’ (Serwer, 2013). With Croatia already becoming a member, and

its shrinking economy, Serbia is desperate to find a fast track of

integration into the EU (Palokaj, 2013c my trans.). Withholding EU

monies and support for its EU aspiration is, without doubt,

efficient sticks for Serbia.

On the other hand, in absence of credible accession process for

Kosovo the EU possesses range of special sticks, applicable only to

Kosovo. Among the many ties that the EU has with Kosovo, one should

mention that:

The EU is the biggest financial contributor to Kosovo

institutions.

Its members through NATO provide most of the troops for KFOR,

the military force in charge for security in Kosovo.

some of its core members, mainly the US, UK, France and

Germany, lead the lobbying efforts for international

39

recognition of Kosovo and its membership in the international

organisations (US CFA Report 2013)

This practically makes the EU in charge of the protectorate and to

powerful towards the fragile Kosovo institutions. Withholding its

support in any of the abovementioned areas, especially in the

security and financial area, was never a viable option, since it

will have a destabilising effect on the region. Any of these acts

would contradict the EU’s basic interest which is stability of

Kosovo and the region. Therefore they are not considered as

applicable sticks, although available to the EU and its core member

states.

On the other hand, these sticks that could lead to destabilisation

are unnecessary. Smaller sticks are sufficient. The supervisory role

played by the EU provides enormous political influence over its

institutions, political parties and the public in general. A weak

government which only survives with the help of minority MP’s or

sometimes opposition parties is largely dependent on the

international community. Several times, since 2009, Kosovo’s

institutions have avoided early elections, due to decisive

international intervention that pressured opposition parties to vote

in favour of government acts. The stick of overthrowing government

is available, viable and could be used at any moment of the process

40

(Deda 2013 my trans.). Therefore, only withholding political support

would be considered an effective and appropriate stick.

An Illustrative example of this phenomenon is the vote regarding the

ratification of the agreement between Kosovo and Serbia, where an

absolute majority was required. Although, LDK Members of Parliament,

representing the biggest opposition force, made arguments against

the agreement in parliamentary session, they ended up voting in its

favour. In this way they avoided a crisis that would have probably

led to the fall of the government. They not only acted in

contradiction to their self-interests but were also publically

humiliated.

With Europeanization image recovery becomes a leverage

In both Kosovo and Serbia the process of Europeanization is being

installed and constructive relations with the EU have become

important criterion for political evaluation (Pesic 2013). In Kosovo

there is no significant political force that doesn’t share the

policy of integration into EU and in Serbia, the situation has

improved dramatically with the transformation of the leading SNS

party policy from ‘anti-western’ to ‘EU friendly’. Leave aside

Seselj’s Radical Party and Kostunica’s SDS, that altogether

represent about 10% of the electorate, all other political forces in

41

Serbia as well as Kosovo are committed to EU integration. Within the

Europeanised context, both leaderships, in Pristina and Belgrade,

bear the burden of the ‘bad’ image. While Serb leaders try to

recover from an anti-western image obtained during the Yugoslav

wars, Kosovo leaders suffer from the image of criminality obtained

during the international administration of Kosovo.

The Serb PM was the closest associate of Serbia’s indicted

president, Slobodan Milosevic and spokesperson of his party. The

Prime Minister together with Serbia’s president, Tomislav Nikolic,

who leads the largest party of the coalition, both have been

enlisted in EU/US travel ban list (Council Decision 1999), as part

of Serbia’s leadership not allowed to enter the Schengen area during

the war in Kosovo. In the internal political struggle, they both

lead parties belonging to the radical corner of the spectrum, with

clear responsibility for promoting politics that caused vicious

crimes in the Yugoslav dissolution during the 90’s. For over a

decade they were portrayed by pro-western political forces in Serbia

as radicals, who threaten to radicalise Serbia and put into question

its pro-western orientation. Therefore, within the new Europeanised

context, this Serb leadership is eager to reconstruct its image

internationally and prevail over their political rivals who

monopolised the pro-western image in internal political debate. This

leadership needs constructive engagement with the EU High

42

Representative, Catherine Ashton, as it is the fast track to

reconcile their personal image (Pesic 2013).

Kosovo’s PM is even more vulnerable. Foreign Policy Magazine

portrayed his government in 2010 as ‘coterie of thuggish leaders,

holdovers from a Kosovo Liberation Army (KLA) unit accused of war

crimes and weapons dealing’(Mason and Healy-Aarons 2011). Thaci’s

government entered the negotiating process with the burden of the

damaged image. His reputation further deteriorated due to the

‘industrial election fraud’ (The Economist, 2010) organised by his

party in the 2010 elections. Some of his closest associates are

currently trailed for war crimes and corruption charges, while he

himself is under investigation for war crimes by the EU special

investigative task force, expected to deliver its findings in 2014.

Thus his goal is a far more ambitious goal. He not only seeks to

recover his image internationally, he also seeks to avoid

prosecution for crimes prescribed to him and some of his close

associates by the Council of Europe’s report written by Swiss

senator, Dick Marty. Having in mind that investigations are being

conducted under the EU patronage, through EULEX mission and Special

Investigative Task Force, this could be seen as vulnerability

towards the EU as the mediator in the negotiating process. Although

there is little empirical evidence to suggest that the possibility

of international criminal indictments serve as a deterrent or

43

moderating force on governments, one cannot exclude its effect on

the decision making (Geis and Mundt 2009). Moreover, ‘prosecution

may be one of a range of factors taken into account in the

calculations made by government leaders determining how to respond

to a challenge to their authority’ (Grono 2012). Many in Kosovo

believe that this investigation represents a valuable stick for the

EU that could be used as an effective deterrent to persuade Kosovo

leaders to deliver in the negotiating process. Kosovo PM himself

publicly admitted he felt the pressure of the process and considered

resignation.

Lack of coherence

Although the EU instruments to influence the parties to the conflict

are numerous and attractive the records as mediator to international

conflicts are not congruent. The EU has a poor performance when it

comes to coherence of its institutions as well as the capacity of

its members to act in one voice in challenging issues of foreign

affairs. The lack of coherence remains one of the greatest

challenges for EU foreign policy in general, and conflict resolution

in particular (Pinelli 2007;Grant and Leonard 2006; Crowe B.

2003).

The EU had a really bad start as a mediator. In the Yugoslav

dissolution in the early 90’ ‘the EU displayed all the weaknesses

44

inherent in its nature as an association of states reluctant and

unable to share sovereignty and act in unison in international

affairs’ (Wolff and Yakinthou 2011). The legacy of the Yugoslav

failure still remains as a shadow over the Union, while the symptoms

repeat from one conflict to the other. From Yugoslavia to Cyprus,

and Iraq to Georgia, the EU member states struggle to build unified

positions due to different preferences and interests. Stefan Lehne

(2012) will note that ‘member states look at EU foreign policy as a

toolbox to be used for the purpose of its own national foreign

policy, rather than seeing themselves as part of the EU as an

international actor in its own right’. This reflected directly on

the ability of the Union to perform as an effective actor on the

international scene, as peace broker and promoter of peace.

The Kosovo contest is the best example to show how a lack of

coherence within an International Organisation impedes its

effectiveness and credibility. Division into two groups of states,

into recognizers and non-recognizers, made the EU incapable of

performing effectively, especially when it comes to the enlargement

process (Vaquer 2011). Instead, division has imposed the need to

operate on the lowest common denominator. This ineffective policy is

labelled ‘differences regarding the status, unity about action in

Kosovo’(KFOS, 2013). In too many instances the EU Council, or other

decision making bodies within the EU, struggle to build consensus

45

over policies on Kosovo. The approach taken by the 5 EU non-

recognizers, ‘in practice, slows down the decision-making processes

in the European Council. ‘…it is usually Slovakia, Cyprus and

Romania, who claim that UNMIK should be involved in signing the

agreements between Kosovo and the EU…. they additionally ask that

each time Kosovo is mentioned to refer to the UNSC Resolution 1244

and to include the formulation on: ‘non-prejudicing the position of

the member states towards Kosovo status’(Sláviková 2011). This

illustrates the diplomatic efforts that the EU needs to invest in

order to deliver on its policy of ‘unity of action’, each time it

discusses actions in regard to Kosovo.

With this burden the Dialogue, led by the HR Catherine Ashton, is

handicapped and uncertain. In the best case, it is expected to

deliver results that fall short of long term solutions to the

problem that will lead to reconciliation between the conflicting

parties. In addition to obstructing dialogue the division further

damages EU credibility as an important international actor. ‘If EU

fails to act effectively, due to the lack of cohesion, in a low

intensity conflict that’s happening in its backyard, it’s hard to

imagine how it can aspire the mediation role in more intense and

complicated conflicts around the world’ (Citaku 2013).

Ambiguity

46

The lack of unity in the EU reflected upon the agreement reached in

the process. The EU, that itself relies on ambiguity to avoid open

disagreements between member states in reference to Kosovo, had no

credibility to insist in solutions that reflect clarity beyond its

capacities to absorb. Therefore, most of the agreements reached

between Kosovo and Serbia, so far, are either ambiguous or rais

doubts to where they are leading. The agreements are built on the

principle of status neutrality. They recognize the contest as

legitimate state of relations between parties and the mediator

(Surroi,2013 my trans.) . Therefore, the agreements are usually

subject to further bargaining in the implementation phase and their

implementation is highly dependent on continuous exercise of

pressure by the EU.

The Kosovo government interprets agreements as a necessary step to

dissolve parallel structures and allow integration of the North into

Kosovo’s institutions. In addition, they claim that process will

gradually lead to full recognition from Serbia (Thaci, 2013).

However, ‘unofficial’ Pristina will address doubts that the process

is leading towards functionality of Kosovo. Instead they consider

the process is giving Belgrade capacity to interfere in Kosovo’s

internal affairs (Surroi, 2013). Serb society reflects with none the

less same contradictions. Serb government interprets the agreements

47

as necessary concessions that bring Serbia closer to the EU. They

claim that agreements obtain substantial autonomy for a Serb

political entity, with clear executive powers, while leaving open

the issue of statehood (Dacic, 2013). The opposition argues that the

agreements are an implicit recognition of the Kosovo state

(Kostunica 2013).

But, these contradictions go beyond the opposing attitudes in the

power struggle within societies. Contradictions, beyond the natural

inclination of the opposition to criticize the government, are a

result of the high level of ambiguity in the content of the

agreement. Scott (2001) argues ‘the sought-for ambiguity will serve

to allay anxieties on either side or to secure a margin for

subsequent interpretation. Those which may have to give something up

have an interest in obfuscating their potential obligation, and

those which stand to gain have an interest in clarity and

precision’. Therefore some ambiguities have a face saving effect in

the process. In this regard the Agreement of Principles Governing

the Normalization of Relations (thereafter 15 Points Agreement),

reached in the 19th of April, foresees the creation of a Serb entity

composed of Serb majority municipalities in Kosovo. While the

Agreement refers to the entity as ‘Association of Municipalities’,

it gives Kosovo authorities an opportunity to interpret the

48

concession as something already made by Kosovo within the Ahtisaari

process. This is ‘face saving’ manoeuvre of avoiding the term

‘autonomy’ that is unpopular within the Albanian community in

Kosovo, who believe that concessions made in the Ahtisaari plan

‘bring the system in the limit of functionality (Surroi, 2013). But

the agreement provides the Serb government with ammunition of the

content of the Agreement that can rightly be described as

substantial territorial autonomy. The ‘Association’ will operate

with its legislative and executive bodies, ‘president, vice

president, assembly and council’, that exercise municipal

competencies collectively, and have control over economic

development, education, health, urban and rural planning. In

addition, Association will have its autonomous police hierarchy,

Serb regional commander and separate appellate court. Above all it

will have its own system of budget collection at northern border

crossings, as the territory that will be practically treated as a

unique customs zone.

Another example of the ambiguous agreement is the one on the

management of border crossing. This time ambiguity comes as a

solution to avoid the core contention between parties. The Agreement

foresees implementation of IBM (International Border Management), an

EU concept applicable to countries in the accession process. But the

agreement refers to the concept only through its acronym in order

49

not to bring up the contention between parties on where the line

that ought to be managed is a ‘border’ or a ‘boundary’. The

Agreement elegantly estivates the contention through a footnote that

explains that ’one party recognises the line as a border; the other

party recognises the line as an administrative boundary’. However,

the basic issue whether the line is border or boundary, the

fundamental contention, is left open hopefully to be addressed in

the future.

Unfortunately, at some points, the EU itself acts in self-interest

as a mediator, favouring ambiguous solutions. This becomes obvious

in regard to the issues that the EU itself faces internal

contradictions. Typical, is the example of the agreement on regional

representation of Kosovo. The agreement referred to as ‘asterix

agreement’ provides for Kosovo to be seated in regional

organizations with the nameplate of ‘Kosovo*’, not to be referred to

as a ‘Republic’ anymore. The agreement ‘allows the country to take

part in conferences, sign agreements on ‘its own account and speak

for itself at all regional meetings’, including those with EU

institutions, no longer being represented by UNMIK. The asterix

directs the reader to a footnote that states. ‘This designation is

without prejudice to positions on status, and is in line with UNSC

1244 and the ICJ opinion on the Kosovo Declaration of Independence’

(Pasqualina 2012). Ironically the solution, as ambiguous as it can

50

be, was immediately adopted by the EU institutions that also

struggled to build an agreement on the issue of the name of Kosovo.

The feasibility study for the SAA that was awarded to Kosovo after

the agreement refers to Kosovo with the ‘asterix’ sign.

While Kosovo authorities, endorsed by the international community,

adopt optimistic interpretations of the events, its critics have

enough arguments to argue the opposite. Blerim Shala (2013), a

coordinator of Kosovo delegation in the dialogue, asserts that

‘there cannot be clarity in these kind of Agreements, a clarity that

will resolve all the obstacles in its implementation....but one

thing is for sure, the High Commissioner, Catherine Ashton, will be

the final authority in the interpretation of the agreement during

its implementation’. But Veton Surroi, asserts that ‘the (15 points)

Agreement foresees that this political entity will have to

integrate in Kosovo legal and institutional framework, but with no

explicit demand to abandon the Serb constitutional framework. This,

in silent manner, means that we are moving towards a sharing of

sovereignty in the North. He then argues that the agreement doesn’t

specify the nature of relations of the new entity with the Kosovo

Government, instead he claims that this ‘will be an open issue’. ‘If

the new entity is going to become an autonomous part of a functional

state or it will ‘democratically’ move towards a functional entity

51

within a dysfunctional state, such as ‘Republika Srpska’ within

Bosnia and Herzegovina’ that remains to be seen.

Therefore, we can conclude that ambiguous solutions not only raise

doubts and uncertainties across the political spectrum but also feed

the ambitions of the parties to the conflict, thus leaving open the

possibility of the resurrection of conflict.

Solutions that disregard EU values

Unable to focus on long term goals, due to a lack of a single policy

towards the Kosovo-Serbia contest, the EU as mediator ends giving

more weight to short term objectives than long term ones. By doing

so the EU sometimes accepts or even promotes solutions that

undermine some of its long term interests in transformation of

societies in accordance with EU standards and values. Adekanye

(1998) argues that while power-sharing plays an important role in

the transition from armed conflict, such arrangements might not

necessarily help maintain post-conflict stability or democracy.

Typical example of an agreement that obstructs democracy and rule of

law is the Law on Amnesty that derived from the 15 Points Agreement.

Although the agreement foresaw amnesty only for the Serbs engaged in

parallel structures, who contested Kosovo statehood, the Law

prepared by Kosovo Government and adopted by Kosovo parliament,

52

provided amnesty to all of its citizens for a considerable amount of

crimes. The list of crimes goes far beyond the needs of the

agreement. The objective of this act, according to civil society

organizations that petitioned the law, was to include some of the

ruling government members in the amnesty, for the crimes they have

committed in post 1999 Kosovo. So crimes such as ‘espionage’,

‘smuggling’, ‘falsification’, or ‘tax-evasion’ etc. were proposed

and adopted by the parliament (KA 04-L-203). Since the adoption of

the law required 2/3 majority vote, a considerable amount of

pressure from the EU diplomats was exercised on political parties

and members of parliament (Euroasia 2013). By doing so, the EU short

term interest of enabling implementation of the 15 points agreement

overweighed the long term interest of rule of law. In this respect,

Kosovo’s civil society states in an open letter sent to EU

representatives in regard to the Law on Amnesty:

‘If the current draft Law on Amnesty is enacted, the pardon

provisions will seriously hamper the entire work on fighting

organized crime, corruption and financial crime by Kosovo’s

judiciary and prosecution; by EULEX; and will also seriously

endanger the rule of law criteria specified in Visa

Liberalization Process; Rule of Law Dialogue with the EU; the

53

upcoming SAA negotiations; and in short the entire investment

for a just Kosovo in the last 14 years.’

A second illustrative example that undermines the long term interest

of Kosovo to fulfil European standards is the agreement to select

regional police commanders on an ethnic basis. ‘There shall be a

Police Regional Commander for the four northern Serb majority

municipalities….The Commander of this region shall be a Kosovo

Serb’’ states the 15 Point Agreement. This particular result is

inconsistent with European values against discrimination codified in

the European Convention on Human Rights. It is also inconsistent

with the ruling of the European Court of Human Rights, which ruled

in favour of a Jew and a Roma, who sued Bosnia and Herzegovina

against discrimination, not being eligible to be elected as

President (Eur. Ct. H.R. Dec. 22, 2009) . Finally, the accord is

inconsistent with the EU enlargement policy. ‘The Ashton-brokered

compromise foresees a Serb police chief for Northern Kosovo while

Bosnia is asked to implement a decision of the European Court of

Human Rights striking down the principle that public offices should

be reserved for members of a particular ethnic community’(Bachev,

2013) 

54

In this respect, the eagerness for success manifested by the EU High

Representative, Catherine Ashton, during the Dialogue, has been

highly important for successes on achieving agreements between

parties. However, examples, illustrate that some parts of the

agreements are in serious breaches of some EU standards and long

term objectives of parties, as aspirants of EU accession as well as

the EU itself. Moreover, they bring into surface a lack of

institutional coherence between EU institutions: High Representative

pushing for an agreement that imposes solutions that contradict

demands for reforms set by the EU Commission. Since one of the

goals of the process, beside conflict resolution is to lead both

societies towards the EU integration process, these elements of the

agreement show recklessness of the High Commissioner for the long

term goals of the institution it represents. This leads us to

conclude, that the EU will endanger its credibility therefore

effectiveness as a mediator if the focus on short term success

overweighs the long term objectives of the EU.

55

Conclusions

To conclude, the Kosovo-Serbia dialogue is a perfect platform for

the EU to successfully promote itself as a credible meditator. A

platform, of two European countries with conflicting legacy, engaged

in low level conflict that reached the political impasse, with

practical problems that could easily be resolved within the EU

integration context, and with struggling economies that leave no

alternative to EU integration, is a great opportunity for the EU to

56

succeed and recover its image as mediator. Closing successfully the

last open issue of dissolution of Yugoslavia would have been the

best revenge the EU could apply towards Western Balkans – to achieve

victory at the same place where the reputation of the Union as an

international actor was severely damaged. Failure in Yugoslavia,

Cyprus, Georgia or Turkey should be used to draw lessons. The

reputation of the EU as international actor is undermined by the

lack of coherence and diverging interests of its member states. The

very same risk is threatening the EU in Kosovo-Serbia dialogue. The

five non-recognisers of Kosovo’s independence should not be allowed

to indefinitely keep EU policy towards Kosovo hostage, therefore

towards other countries of Western Balkans.

Results of the dialogue, up to this point, are elite-pacts (Daniel

Serwer) that were possible based on leverage applied by the EU

towards parties at two distinct dimensions. Towards Serbia the EU is

successfully applying the EU enlargement as leverage. Meanwhile

towards Kosovo, in the absence of a clear single policy, the

enlargement is applicable only as ‘face saving’ facade, and not as a

credible process. Instead, the EU so far is successfully applying

political leverage (including deterrence through investigations),

towards Kosovo political elite. But, this state of relations is

neither permanent, nor does it guarantee commitment during

57

implementation. In contrary, extensive use of sticks towards

political elites may result in their isolation and loss of

legitimacy. Sooner, rather than later, Kosovo institution will

surrender to public pressure that realizes the fact that Kosovo

under current circumstances is lacking the enlargement carrot. This

could endanger results of the process and bring resurrection of the

conflict. Therefore it is of a crucial importance that the EU

addresses its divergences, and adopts a single policy that enables a

credible accession process for Kosovo. Only if both parties benefit

from the enlargement, the EU can count that agreements reached so

far can develop to a long term success and durable peace between

Kosovo and Serbia.

And only if the EU succeeds in resolution of conflicts in its own

backyard, can it count on gaining credibility to engage in more

violent and complicated conflicts throughout the world.

It is of crucial importance that the EU, aware of the lack of short

term perspectives for Kosovo integration process, doesn’t shrink

expectations towards Kosovo and propose and pressure for solutions

that undermine Kosovo functionality, thus jeopardizing the long term

goal of EU accession. So far, there are clear indications that the

High Representative of the EU, as mediator to the conflict, is

capable to close its eyes, and pick up short term success, on the

58

account of long term needs for Kosovo. This practice needs to stop,

and it can only stop if High Representative balances its role as

person in charge of foreign affairs with its role as deputy-head of

EU Commission. Only by balancing between the requirements of

accession process and the challenges of process of normalisation of

relations between Kosovo and Serbia, there is a chance for success

in the process. Doing the opposite, enabling accession of Serbia

without the normalisation of relations with Kosovo, will be a dejavu

of the EU/UN failure in Cyprus and a waste of yet another

enlargement process.

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