Managing Hatred and Distrust:

The Prognosis for Post-Conflict Settlement

in Multiethnic Communities in the Former Yugoslavia

Edited by Nenad Dimitrijeviç and Petra Kovacs

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 115

THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO

AND THE MYTH OF MULTIETHNICITY

By Florian Bieber

Contents

1. Introduction: The Meaning of Multiethnicity in Kosovo . . . . . . . . . . . . . . . . . 118

2. Rambouillet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

3. The Constitutional Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

3.1. The Institutions of Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Figure 1: The Institutional System of Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . 125
3.2. The Role of Yugoslavia in Kosovo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
3.3. Lessons Learned from Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Table 1: Results of the Election for the Kosovo Parliament, Nov. 16, 2001. . . 129
Figure 2: Seats in the first Kosovo Parliament. . . . . . . . . . . . . . . . . . . . . . . . . 130

4. Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

5. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
 117

THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO

AND THE MYTH OF MULTIETHNICITY

By Florian Bieber

In their efforts to create a “multiethnic Kosovo,” 1 international administrators are embark-

ing on an ambitous strategy of seeking to create a state of interethnic relations that has
not existed in the territory in recent years.
The past decade has been marked by a complete segregation of Albanian and Serbian
society in Kosovo, with minimal interaction between the two groups. And, unlike other
parts of the former Yugoslavia, Kosovo does not have a previous tradition of peaceful
coexistence among the main ethnic groups inhabiting the territory.
The 1999 Rambouillet proposal and the constitutional framework of 2001 both seek to
protect minorities without defining who the real minority is in Kosovo, as such a definition
would indicate the future status of the territory. The agreements also both seek to de-empha-
size territorial divisions among ethnicities in minorities, in an intentional effort to make these
divisions less important. Although Serbs in Kosovo currently live in separate enclaves, with
restricted freedom of movement, it is clearly the hope of the international community that
this arrangement should not become permanent. This approach represents a departure from
the agreement that the international community brokered in Bosnia, where territories are
divided along ethnic lines, and it indicates an effort to correct mistakes made in past agree-
ments in the former Yugoslavia. The desire to de-emphasize ethnic enclaves also indicates
the international community’s perhaps misguided desire to create a multiethnic Kosovo.
The constitutional framework for Kosovo was not developed with internal involvement,
but was instead imposed on the territory by international administrators. Nonetheless, it
allowed Kosovo to establish its own institutions and remove international administrators
from the day-to-day running of the country—and it allowed for the country’s first elections.
The constitutional framework lacks a power-sharing arrangement or any provisions
for true local autonomy. It does offer guarantees of minority representation, and in Kosovo’s
first election to territory-wide institutions, on Nov. 17, 2001, minorities were able to win
the seats guaranteed to them, along with some additional seats. The difficulty involved in
forming a government after those elections indicates the difficulty of getting Kosovo’s par-
ties—even the Albanian parties—to work together.

1 This aim has been repeatedly made clear by key Western policy makers, i.e. Madeline Albright, RFE/RL
Newsline, July 29, 2001. Some scholars even advocated “reestablishing a multiethnic Kosovo.” See i.e.:
Eric A. Witte, “Reconstructing Kosovo: The Ethnic Dimension,” Kurt Spillmann & Joachim Krause
(eds.), Kosovo: Lessons Learned for International Cooperative Security, Bern et. al.: Peter Lang, 2000.
118 MANAGING HATRED AND DISTRUST ·· PART III

Although efforts to encourage a multiethnic society in Kosovo may not be the answer
to the territory’s problems, alternatives proposed by Serbian thinkers, involving parti-
tioning or cantonization of Kosovo, appear unfeasible and unacceptable to the Albanian
majority. The limited scope of these plans shows the lack of thought given to alternatives
to the current arrangement.
Yet the current arrangement is clearly inadequate, and offers insufficient protection to
the Serbian minority in Kosovo. Despite having probably the highest density of interna-
tional organization and military anywhere in the world, Kosovo remains a territory with
an unclear long-term political status, a deeply divided population, and a high rate of basic
violations of human rights.
This chapter will seek to explore how the international community has tried to insti-
tutionalize interethnic relations in Kosovo in recent years and to evaluate the impact of
those efforts. The Rambouillet proposal and the constitutional framework will be exam-
ined, and the implementation of the latter will be traced in the aftermath of the first Kosovo-
wide elections. In addition, the chapter will discuss some proposed alternatives to the cur-
rent institutional set-up. The chapter concludes with a discussion of the types of institutions
that are most adequate in deeply divided societies like Kosovo. The conclusion also address-
es the question of whether it is worthwhile to pursue the idea of a multiethnic Kosovo.

1. Introduction: The Meaning of Multiethnicity in Kosovo

In discussing the future of Kosovo, members of the international community often seem to
equate multiethnicity with the presence of different ethnic groups on the same territory, irre-
spective of their interaction. While the existence of more than one community is certainly a
pre-condition for a multiethnic environment, shared space is not enough. Instead, multieth-
nic society has to be based on the concepts of “recognition” 2 and “inclusion” 3 of the “other.”
The identification of a state or territory as multiethnic does not suggest any particular
institutional or constitutional mechanisms for managing diversity. It does, however, exclude
some macro-political processes. Any institutional or political steps to end diversity would
be excluded by definition. Such steps might involve morally repulsive instruments, such
as genocide and population expulsion, or more benign instruments, such as integration.
Acceptable tools for managing multiethnic societies range from varying types of autono-
my to power-sharing arrangements.4 It has been remarkable in the context of Kosovo that
the support for multiethnicity has not been coupled with a clear support for any partic-
ular institutional and/or other macro-political approach in managing this multiethnicity.

2 See Charles Taylor, Multiculturalism and ‘The Politics of Recognition, Princeton: Princeton University
Press, 1992.
3 See Jürgen Habermas, “Inklusion—Einbeziehen oder Einschließen? Zum Verhältnis von Nation,
Rechtstaat und Demokratie” in Die Einbeziehung des Anderen. Studien zur politischen Theorie,
Frankfurt: Suhrkamp, 1996, pp. 154-184.
4 John McGarry, Brendan O’Leary, “Introduction: The macro-political regulation of ethnic con-
flict,” in John McGarry; Brendan O’Leary, eds., The Politics of Ethnic Conflict Regulation: Case Studies
of Protracted Ethnic Conflict, London: Routledge, 1993, pp. 1-40.
 THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO 119

The term multiethncity suggests the importance of recognizing the existence of different
ethnic groups5—though in Kosovo ethnic divisions are politicized. The term also suggests a
normative stand in support of diversity. As such, it emphasizes ethnic or national identity while
at the same time attributing implicitly or explicitly positive values to the political relevance of
these identities. As we shall see, in the case of Kosovo, this twinning might be problematic.
As it is not the purpose of this chapter to trace the history of Serbian-Albanian relations,
it shall suffice to note that—unlike in other parts of Yugoslavia—periods of peaceful coexis-
tence between these two groups have been rare in the 20th century. Relations were mostly
marked by a high degree of distance, suspicion and stereotyping.6 While, doubtlessly, there
have been many instances of cooperation and coexistence, tensions have been higher between
Serbs and Albanians than between other nations in the former Yugoslavia.7 The creation of
a multiethnic Kosovo based on peaceful coexistence thus has to create a new state of Serb-
Albanian relations—and not re-establish previously existing political arrangements.
The concept of multiethnicity could be considered a misrepresentation of the state of
national groups in Kosovo. According to the population census of 1981, the last reliable
census in the province,8 Albanians constituted 77.4 percent of the total number of 1.59
million inhabitants, while Serbs and Montenegrins made up 14.9 percent. The estimates
of the census of 1991 place the percentages of the populations at 82.2 and 10 percent
respectively.9 Thus, even if there was a complete return of all Serbs and other minorities
who left since the beginning of the international administration in Kosovo in June 1999,
the number of minorities in Kosovo would be lower than in Croatia prior to the war in
1991.10 The term “multiethnic” could therefore be considered misleading, because it
implies a higher degree of diversity than really exists in Kosovo.11
Veton Surroi, publisher of the Kosovo daily Koha Ditore, outlined another difficulty
with the concept of multiethnicity in Kosovo:
“I would advocate a tolerant Kosovo, but not necessarily a ‘multiethnic’ one. This
reminds us of the ‘brotherhood and unity’ in socialist Yugoslavia that failed in flames, as

5 If this were not the case, “multiculturalism” might be more appropriate.

6 Sreçko Mihailoviç, “Ethniçki autostereotypi i heterosterotypi na Kosovu,” Sociologija 55, No. 3,
July-September 1998, pp. 411-426; Wolfgang Petritsch, Karl Kaser, Robert Pichler, Kosovo/Kosova.
Mythen. Daten. Fakten, Klagenfurt: Wieser Verlag, pp. 73-153.
7 Such an assessment can only be made for the 20th century, as the relationship between Serbs and

Albanians prior to the past century were not marked by nationalism. Thus, cooperation and con-
flict were determined by other considerations, such as religion and the relationship to the state.
8 As the Albanian population in Kosovo boycotted the 1991 census, the numbers are merely estimates.
9 Herbert Büschenfeld, “Ergebnisse der Volkszählung 1991 in Jugoslawien,” Osteuropa, Vol. 42,

No. 12, December 1992, pp. 1095-1101; Jens Reuter, “Die albanische Minderheit in Jugoslawien,”
in Roland Schönfeld (ed.) Nationalitätenprobleme in Südost Europa, München: Oldenbourg, 1987,
p. 141. According to Albanian estimates, the percentages for 1991 are 90 percent for Albanians
and 8 percent for Serbs and Montenegrins. Kosova Factbook, http://www.ioc.com /~ulpiana/
Albanian /Kosova /factbook.html.
10 According to the last census, 12.2 percent of Croatian citizens in 1991 were Serbs. See Büschfeld,

op. cit.
11 This assessment shall in no way endorse the way in which this homogeneity has developed in

the course of the past decades.

120 MANAGING HATRED AND DISTRUST ·· PART III

we have seen. There is a realistic life for Serbs here. Unfortunately, it will be a longer
process than we had originally foreseen. It is also very painful, because at the same time
Serbs from Kosovo have to define their local identity. Before they were always defined as
(Slobodan) Miloseviç’s Serbs.”12
Surroi emphasizes the ideological underpinnings that are associated with the term
“multiethnic.” These ideological factors deserve further examination, beyond demographic
and historical questions regarding this concept. While ethnicity has been the most salient
feature in Kosovo in the course of the recent past, one has to question the pronounced
emphasis of the term “multiethnic” in seeking to preserve ethnic divisions and identify
them as a prime characteristic of Kosovo.
The process of defining local identity, as outlined by Surroi above, cannot be limited
to the Serbian population alone. The Albanian population is also forced to define its local
identity. The extended suppression by the Yugoslav and Serbian state, coupled with an
increasing polarization of Serb-Albanian relations in the past decade, has created a degree
of unity and identity among Albanians that was directed against the country to which they
involuntarily belonged. With the end of Serbian influence in Kosovo, and the elimination
of a Serbian threat to the territory, the Albanian political spectrum, and some of the main
markers of identity, have to reorient themselves away from Belgrade. Just as Serbs from
Kosovo looked to Belgrade for support, Albanians saw in Belgrade the main opponent.
As a result, Belgrade was the prism through which the two communities viewed each
other. With the political center of Serbia no longer exercising any direct influence on
Kosovo, the relations between and within both communities will have to reorient them-
selves. While the minority status of Serbs in Kosovo will make ethnicity an important fea-
ture for this population group, the strong majority of the Albanian community will be
less determined by ethnicity and rather by other social and political differences within the
Albanian population. A multiethnic Kosovo thus reduces the possible differences between
Albanians and establishes a majority-minority dichotomy, which is easily disadvantageous
for the minority due to its small size. In the following sections, we shall see how the con-
cept of multiethnicity was reflected in the institutional design of Kosovo.

2. Rambouillet
The Rambouillet proposal, “negotiated” in Paris in February and March 1999, is one among
many examples of the international community attempting to chart an agreement to end
a conflict between ethno-nationalist leaders in the former Yugoslavia while providing a

12 Veton Surroi, “Interview: Building a New Future,” IWPR Balkan Crisis Report, Feb. 24, 2000.
13 Even so, there was reasonable doubt over the democratic legitimacy of the Serb/Yugoslav gov-
erments, given the repeated usage of electoral fraud and voter intimidation. The government
legation also included members of all national groups in Kosovo (Roma, Egyptians, Gorani,
“loyal” Albanians, and Turks), whose legitimacy was questionable and their degree of represen-
tation doubtful. See also the Serbian counter proposal, which was signed by all these groups and
representatives of Serbs from Kosovo, with similarly dubious legitimacy. Agreement for Self-
Government in Kosmet, Paris, March 18, 1999.
 THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO 121

particular territory with a new institutional framework. Here the agreement was to be
negotiated between the representative of the state in which Kosovo lies, i.e. Yugoslavia
and Serbia, on one side and the representatives of the minority dominating the province,
i.e. the Albanians, on the other. While the representation of the state easily achieved legit-
imacy, because it was sent to the negotiations by the elected government of that coun-
try,13 the representation of the minority proved to be more problematic, due to the absence
of officially-recognized elections within the Albanian community of Kosovo and the polit-
ical developments since the unofficial elections held in Kosovo. Thus, the Albanian del-
egation included others beside elected “president” Ibrahim Rugova and members of the
Democratic League of Kosova (LDK), the party carrying the most votes in this unofficial
election. The delegation also included members of the Kosovo Liberation Army, as well
as intellectuals, such as Surroi, who had no political or military following.
The constitution took a prominent place within the framework of the Rambouillet
agreement, and it was made Chapter 1 of the agreement.14 The constitution recommended
for Kosovo is generally more detailed and elaborate than the six-page constitution for
Bosnia. The proposed constitution did not define the people enacting the legal text—or
in any other way determine the composition of Kosovo. Generally, the document refrains
from clearly dividing the institutions between Albanians and Serbs. The term used here
is “national communities,” which avoids ascribing the status of “minority” or “majority”
to either of the national groups in Kosovo. While a separate definition of the communi-
ties is avoided in the text, the “national communities” are defined in connection with the
composition of the assembly. Here the constitution differentiates between “[c]ommuni-
ties whose members constitute more than 0.5 percent of the Kosovo population” and
those who “constitute more than 5 percent.”15 Both Serbs and Albanians would belong
to the second group of communities. As opposed to the main challenge in Dayton, which
was to map out the relationship between the groups within their respective entity of pre-
dominance, the challenge of the negotiations at Rambouillet lay in codifying the relations
between the province and the state, Serbia or Yugoslavia.16 Thus, as with previous agree-
ments drafted by international negotiators, the emphasis did not lie with democracy.17
Minority rights, however, did play a more significant role in Kosovo, than they did in Bosnia.
Like the Dayton constitution, the Rambouillet agreement would safeguard human rights accord-
ing to “high standards.” But this chapter is supplemented by Article VII on National
Communities, an article that goes into more detail about the non-territorial rights of the nation-
al groups in Kosovo. Article VII foresees an (undetermined) degree of self-government of the

14 As opposed to Annex 4 in the case of Bosnia.

15 Article II, 1, Constitution, Interim Agreement for Peace and Self-Government in Kosovo, Feb. 23,
1999.
16 The status of Kosovo is left ambivalent to the extent that it is not possible to determine clearly
whether the province is autonomous within Serbia or Yugoslavia.
17 The American statements relating to Rambouillet emphasize “Democratic Self-Government” with-
out elaborating on the problems of institutionalizing a multiethnic democratic society. The only
detail is the implementation of elections by the OSCE. See “Understanding the Rambouillet
Accords,” Fact sheet released by the Bureau of European Affairs, U.S. Department of State, Washington,
DC, March 1, 1999.
122 MANAGING HATRED AND DISTRUST ·· PART III

national communities and democratic elections with the group. In addition, it establishes the
right to have bilingual official signs, to set up educational institutions, to use national symbols,
to preserve religious and cultural sites, and to recognize a separate family law.18
Thus, the Rambouillet proposal pays greater respect to non-territorial national group
rights. It remains, however, vague on contentious issues, such as the degree of bilingual-
ism of Kosovo, especially in education and other spheres of interaction with authorities.
Most of the progress made in Rambouillet should be seen more as confirmation of the
basic approach of the international community to the resolution of the conflict in the for-
mer Yugoslavia: The state of affairs in the area under negotiation is taken as the basis for
finding a solution that would be acceptable to all sides without fundamentally departing
from the status quo. The absence of a territorial division in Kosovo forced the authors of
the agreement to elaborate on the rights of national communities to a larger degree than
in Bosnia, where the multinational society had been replaced during the war with a three-
way division of the state. Robert Hayden argues that the Western approach to Kosovo and
Bosnia were similar, in as far as they were mostly concerned with preserving the “legal
fiction” of an independent Bosnia and a Kosovo as part of Yugoslavia: “Legal fictions are
often useful devices, and the pretenses that Bosnia has been preserved as a state and that
Kosovo cannot be independent are useful to hide the discomforting truth that, if borders
of the state really cannot be changed, then a population that rejects inclusion with them
either must be expelled … or ruled by brute force.”19
With the war, and the subsequent international administration of Kosovo without the
participation of Yugoslav authorities, the Rambouillet agreement was reduced to a refer-
ence in UN Security Council Resolution 1244 (1999), which established the UN man-
date for the administration of Kosovo. The first year of international administration was
marked by the lack of a clear institutional road map for post-war Kosovo. It was only after
the change of the regime in Belgrade and the first local elections in Kosovo, held in October
2000, that the United Nations Mission in Kosovo (UNMIK) drafted a constitutional frame-
work to establish provisional institutions in the territory.

3. The Constitutional Framework

The “Constitutional Framework for Provisional Self-Government in Kosovo,” signed into
effect by Special Representative of the Secretary General Hans Haekkerup in May 2001,
provides a structure for the development of the autonomy of Kosovo. The framework also
marks the transition from international administration of the province to domestic gov-
ernance under international supervision. The document represents a significant depar-
ture from the Rambouillet proposal, both in the way it defines relations with Yugoslavia
and in how it governs interethnic relations within Kosovo.
As the agreement is exclusively foreign-imposed, it is neither a reflection of political
consensus within Kosovo between the different national communities, nor even within

18 Article VII, Constitution, Interim Agreement for Peace and Self-Government in Kosovo, Feb. 23, 1999.
19 Robert M. Hayden, “The State as Legal Fiction. American Proposals for the Constitutional and
Political Status of Kosovo,” East European Constitutional Review, Vol. 7, No. 4 (Fall 1998), p. 49.
 THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO 123

either the Albanian or Serb community. As Fatmir Fehmiu observed, the constitutional
framework establishes “democracy without people.”20 In response to the signing of the
framework, the Yugoslav president, the Serbian prime minister and Kosovo Serb repre-
sentatives said: “It is not a good legal basis for protection of rights and interests of ethnic
communities.”21 The critique from the Serb side focused on the process in which the frame-
work was elaborated—Serbian proposals were ignored while Albanian alterations were
included—and on its provision giving Serbs the status of a minority.22 From the Albanian
side, Hashim Thaçi criticized the agreement particularly harshly and refused to sign it. The
other two main political figures in Kosovo, Rugova and Ramus Haradinaj, also had objec-
tions to the framework, because it did not prescribe a path towards independence.23
Like the Rambouillet proposal for a Kosovo constitution, the framework avoids the
use of the term “majority” or “minority,” as making these definitions would, in part, sug-
gest the final status of Kosovo. If Serbs were officially a “minority,” it would suggest that
Kosovo is not part of Yugoslavia. If Albanians were described as a “minority,” it would
refer to their position within the territory of Yugoslavia, not Kosovo. In order to avoid the
minefield of implying the final status of the territory—and the inherent problems of ascrib-
ing the status of minorities in the former Yugoslavia—the term “communities” is adopt-
ed and refers to all ethnic and religious communities in Kosovo.24
In a departure from the former Yugoslav constitution, and the constitutions of most
post-Yugoslav states, the constitutional framework’s preamble speaks of the “people of
Kosovo,” suggesting that the people of Kosovo stand above the communities. The term
“people” in English is ambiguous in as far it can connote both an ethnically defined com-
munity or a civic nation of the community of citizens. In fact, the conventional term for
the nations of Yugoslavia in the constitution of Communist Yugoslavia is “narod,” in
Serbian/Croatian. This word is usually translated as “people” in English. The Albanian
translation of “people,” “popull,” has similarly ambiguous connotations. The more civic
conception of the term is emphasized in the Serbian working version of the constitutional
framework, where the term used is “stanovnistva,” which would translate into English as
“inhabitants,” rather than people.25 The usage of the term “inhabitants” was criticized by
some Kosovo Albanian scholars as being too inclusive.26 In fact, the term “people” was
chosen in order to avoid a narrow ethnic definition of the inhabitants, as expressed in the
constitutional texts of most other countries of the former Yugoslavia,27 while also avoid-

20 Kaci Roundtable, “Living within the Framework,” Kosova and Balkan Observer, Vol. 1, No. 2,
August 2001, p. 95.
21 Serbia Info, May 19, 2001.
22 “Umstrittenes UN-Statut für Kosovo,” Neue Züricher Zeitung, May 18, 2001.
23 Kosovalive, May 15, 2001.
24 Constitutional Framework for Provisional Self-Government in Kosovo, chapter/section 4.1.
25 This term carries it’s own baggage, as the citizens exceed the inhabitants of Kosovo, taking into
account that a large number of Serbs and Roma from Kosovo no longer “inhabit” the province.
26 Kaci Roundtable, “Living within the Framework,” Kosova and Balkan Observer, Vol. 1, No. 2,
August 2001, p. 95.
27 See Robert Hayden, Blueprints for a House Divided. The Constitutional Logic of the Yugoslav Conflicts,
Ann Arbour: University of Michigan Press, 1999.
124 MANAGING HATRED AND DISTRUST ·· PART III

ing the term “citizen,” as this word would imply a Kosovo-specific citizenship, suggest-
ing a permanent separation from Yugoslavia/Serbia.

3.1. The Institutions of Kosovo

Despite the controversy surrounding the framework, the document provides for domes-
tic institutions, thus reducing the degree of international involvement in the day-to-day
running of the province and allowing for Kosovo-wide elections. These elections would
not have been possible without the existence of the clear institutional structure provided
for in the constitutional framework.
The constitutional framework accomplishes three tasks: establishing institutions, set-
ting the powers of these institutions, and defining group rights and representation.
The institutions foreseen in the quasi-constitution resemble the Rambouillet propos-
al at first glance, with a similar presidency, parliament, and government. But the powers
and election procedures described in the constitutional framework differ greatly from the
arrangement proposed at Rambouillet.
The assembly and the government both have guaranteed minority representation. In
the assembly, 10 seats are reserved for the Serb community while an additional 10 seats
represent other communities (four Roma, three Bosniaks, two Turks, and one Gorani).
In addition, the minorities can compete for the remaining 100 seats in the assembly.28
In the seven-member presidency of the assembly, one seat is reserved for a Serb and
one for a representative of a different minority. In fact, the presidency of parliament is the
only institution where consensus-based decisions are foreseen, because it grants Serbs
and other minorities a limited degree of veto power. The presidency has to attempt to
find a consensus among its seven members in all areas. In most areas, it is allowed to take
a majority vote if no agreement can be established.29 The consensus must be preserved
in cases where at least six minority members of parliament object to a law or regulation
on the grounds that it violates the vital interests of a community.30 In such cases, the pres-
idency shall suggest a consensus-based proposal for resolving the dispute within five
days.31 If this consensus-based mechanisms fails, a new body, consisting of a member
designated from those objecting to the law, a member from the sponsors of the law, and
a delegate of the special representative of the secretary general must propose within five
days to either adopt the law as planned, reject the law, or amend the law.32 While the
final vote is left to the assembly, the minority who fears that their vital interest is adverse-
ly affected can start the procedure anew, thus possibly delaying a law indefinitely.33
Although this power does not constitute an open veto right, the ability of minorities to
block and delay legislation and regulations does constitute a key component of the legal

28 Constitutional Framework for Provisional Self-Government in Kosovo, chapter/section 9.1.3.

29 Ibid., chapter/section 9.1.29.
30 Ibid., chapter/section 9.1.39.
31 Ibid., chapter/section 9.1.40.
32 Ibid., chapter/section 9.1.41.
33 Ibid., chapter/section 9.1.42.
 THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO 125

system. How effective this tool is for the protection of minority interests can only be seen
in practice. If minorities continue to block laws through the above-described mechanism,
because they feel their interests are not adequately protected, they might run the risk of
being criticized by the international community. As result, minorities might be reluctant
to use the process in order to block legislation.

President of Kosovo

Reserved Seats for Serbs (10) Elects (2/3 majority Proposes Prime Minister
and other minorities (10) or 1/2 after 3 rounds)

Presidency of Elects Confirms Government of Kosovo,

Parliament (7), 1 Serb, 1 Serb, 1 other minority
1 other minority member (minimum)

Seats open for all parties (100)

Parliament of Kosovo

Figure 1: The Institutional System of Kosovo

All other institutional mechanisms in the constitutional framework are limited, to ensure
representation of minorities rather than guaranteed participation in decision-making.
Every committee of the assembly, for example, has to have at least one co-chair from a
minority.34 If the government consists of less than 12 ministers, it must include one Serb
and one other minority member; if there are 12 or more ministers, an additional minor-
ity member must be included.35
The president is elected by the assembly for three years. The president must be elect-
ed by a two-thirds majority of the assembly—in other words 80 deputies. If no candidate
can secure such a wide majority in two rounds, the president can be elected by a simple
majority.36 The broad support required for the president in the first rounds can give minor-
ity deputies a key role in electing the president. This voting mechanism does not, howev-
er, constitute a veto-right for the minority. As minority representation is limited to 20 seats,
or one sixth of the seats—and considering the population distribution, minorities cannot
expect to win more than an additional 10 percent of the seats in free contest—the minori-
ties would not meet the threshold to block the election in the first two rounds. Besides,
the fact that the president can eventually be elected by simple majority in absence of broad
support further weakens any possibility for minorities to determine the president.

34 Ibid., chapter/section 9.1.22.

35 Ibid., chapter/section 9.3.5.
36 Ibid., chapter/section 9.2.8.
126 MANAGING HATRED AND DISTRUST ·· PART III

The parliamentary election of the president, and this official’s relatively short term, tend
to weaken the presidential system, which is usually more powerful in the former Yugoslavia.
Furthermore, the competencies of the president are largely limited to representation, even
in “external relations.”37 The departure from the strong presidential system in Kosovo can
be seen as beneficial in terms of democratic development in general—bearing the negative
record of authoritarian presidents in the former Yugoslavia in mind. The weaker presiden-
cy is also beneficial for a system seeking to represent diverse ethnicities. As Arend Lijphart
has noted, the presidential system tends to adversely effect diverse societies, as the collec-
tion of power and representation concentrated in one person usually precludes the kind of
representation of ethnic diversity that might be possible with a cabinet of ministers.38
The main institutions of Kosovo, as outlined, guarantee minority representation, but
do not enable minorities to exert a veto at any level. Furthermore, no specific institutions
have been established for ethnic representation. There is no second chamber of parlia-
ment for ethnicities—as in Bosnia—and no committee for inter-community relations—
as in Macedonia. Thus, despite the usage of the term “communities” instead of “minori-
ties,” the institutions of Kosovo are not power-sharing institutions. Instead of guaranteeing
power sharing, the system merely provides for guaranteed minority representation at a
high level—especially among the cabinet of ministers.
Aside from lacking a power-sharing arrangement, the framework also lacks provisions
for any degree of local autonomy, whether based on ethnicity or any other criteria. The
absence of territorial arrangements in the constitutional framework reflect the concerns
of the international community, and the Albanian political elite, that there may be terri-
torialization of minority-majority relations. This attitude is exemplified by the harsh and
rash condemnation of any Serb proposal for cantonization of a division of Kosovo, a topic
that will be discussed below. At the same time, a territorialization of ethnicity has already
taken place de facto with the creation of Serb enclaves in northern Kosovo and in small
patches of territory throughout Kosovo. The refusal to recognize these enclaves is based
in part on the international community’s desire that the enclaves do not become perma-
nent.39 It could be argued that the constitutional framework’s recognition of these enclaves
is not necessary, because political realities ensure their existence.
The absence of formal territorial autonomy is compensated with a limited degree of
non-territorial autonomy, which is granted to the national minorities. In addition to a cat-
alogue of rights—ranging from education and the free usage of the language with public
authorities to use of symbols and media—the communities are permitted to establish
schools for members of the community, which “may” be funded by the province’s author-
ities.40 The fact that the role of a community’s self-government is limited, both in terms
of the legal framework and in terms of financing, gives minorities the possibility to gen-

37 Constitutional Framework for Provisional Self-Government in Kosovo, chapter/section 9.2.4.

38 Arend Lijphart, Democracy in Plural Societies. A Comparative Exploration, New Haven-London:
Yale University Press, 1977, pp. 147-150.
39 On one side, the creation of the enclaves was conditioned by the persecution of Serbs by some
Albanians after the end of the war. On the other side, the enclaves reflect in part the possibility
of separation of Serb communities from Kosovo, especially in the north.
40 Constitutional Framework for Provisional Self-Government in Kosovo, chapter/section 4.4.j.
 THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO 127

erate a certain degree of autonomy in their affairs, without, however, providing for the
establishment of community-based institutions.

3.2. The Role of Yugoslavia in Kosovo

A major difference between the current framework and the Rambouillet proposal is the
relationship with Yugoslavia. Whereas the Rambouillet proposal outlined, in detail, the
powers federal authorities would have had in Kosovo, the constitutional framework ignores
the Yugoslav authorities. While referring to the June 10, 1999 UN Security Council
Resolution 1244, which reaffirms Yugoslav sovereignty over Kosovo, the framework pro-
vides for no participation of Yugoslav or Serb organs in the administration of Kosovo.
Even the competencies of the Kosovo institutions are defined as self-standing—and not
related to Serbia or Yugoslavia.
Yugoslav authorities were granted a limited role in Kosovo, but only through an agree-
ment,41 made shortly before the Nov. 5, 2001 elections, between Haekkerup, the special
representative to the secretary general, and Nebojsa Çoviç, the president of the
Coordinating Centre for Kosovo and Metohija for the Serbian and Yugoslav governments.42
The agreement was met with considerable opposition from Kosovo Albanian political par-
ties, who were not consulted in its drafting and who opposed any role given to Yugoslav
or Serbian authorities in the governance of Kosovo.43 The agreement, signed in an effort
to ensure the participation of Serb voters in the elections, limits the role of the Yugoslav
government to participation in a coordinating working group, together with the Kosovo
administration, in “areas of mutual interest and common concern.”44 These fields are
described as mostly including missing persons, the judiciary and the police. Probably the
most far-reaching element of the document is the commitment on behalf of UNMIK to
“make the Kosovo Serb educational structures adequately compatible with the Serbian
education system and labor market requirements.”45
Due to the diminished size of the Serbian community in Kosovo, Belgrade continues to
be seen as an important protector of Serb interests in the territory. Especially after Slobodan
Miloseviç’s ouster, and Serbia and Yugoslavia’s success in regaining international respectabil-
ity, Kosovo Serb politicians pinned their hopes on Belgrade.46
The new Yugoslav authorities took a stronger role than the Miloseviç regime did in coop-
erating with post-war Serb elites in Kosovo. Kosovo Serb politicians like Oliver Ivanoviç, Rada

41 The text was officially entitled “document,” giving it a less contractual nature than an agreement
or treaty.
42 See the text of the agreement UNMIK—FRY Common Document, Belgrade, May 11, 2001, avail-
able at: http://www.serbia.sr.gov.yu/news/2001-11/14/320901.html.
43 All the media and political parties in Kosovo rejected the agreement and accused the special rep-
resentative to the secretary general of breaking both the constitutional framework and the UN
Resolution 1244. See UNMIK Headlines, Nov. 6, 2001.
44 Art. 6, UNMIK—FRY Common Document, Belgrade, Nov. 5, 2001.
45 UNMIK-FRY Common Document, Belgrade, Nov. 5, 2001.
46 ICG, Reaction in Kosovo to Kostunica’s Victory, Balkans Briefing, Oct. 10, 2001.
128 MANAGING HATRED AND DISTRUST ·· PART III

Trajkoviç, and Momçilo Trajkoviç were consulted by the new Serbian authorities. But the
constitutional framework provided the Yugoslav and Serbian authorities with no formal role
in the territory. Although the framework does not address the issue of final status, it also does
not relate Kosovo institutions in any way to Yugoslav or Serbian institutions. The formal lim-
itation to Yugoslavia’s role in regard to the province only de-facto enshrined the political real-
ity, but at the same time, it caused opposition both among Yugoslav authorities and the
Serbian minority in Kosovo.47
The key obstacle to granting the Yugoslav or Serbian authorities any role in Kosovo after
the war, irrespective of the government, has been the resistance of the Albanian commu-
nity. As a result of this opposition, Yugoslav institutions could only become active in Serb
enclaves in Kosovo, creating de-facto parallel institutions, which heightened the fear of a
division of Kosovo. At the same time, the Kosovo Serb community has been unable to
define a coherent political program of its own, independently from Belgrade. The divisions
among Kosovo Serbs are partly a reflection of different interests defined by the location of
the enclaves, whether contiguous or separate from Serbia proper. In addition, the enclave-
based constituency has prevented the emergence of a Kosovo-wide platform of Serbs. And
the absence of any democratic election among Serbs in Kosovo before and after the war
has prevented a clear evaluation of political leaders who could represent the remnants of
the Serb community in Kosovo, not to mention Serb refugees outside the territory.
To a large degree, the political dependence of Kosovo Serbs on Serbian authorities is a
continuation of the political dynamics before the war, when Serbs struggled to define a dis-
tinct political agenda that would take into account local concerns of Kosovo versus those of
the rest of the country. The few attempts to create a Kosovo Serb platform, such as the Serbian
Resistance Movement of Momçilo Trajkoviç or the activities of Bishop Artemije, did not suc-
ceed in uniting the Kosovo Serb population sufficiently before the war. The complex layers
of party and personal interests among the political elite of Kosovo Serbs has meant that power-
struggles between supporters of the Democratic Opposition of Serbia (DOS) emerged much
earlier here than in Serbia proper. In the run-up to the elections, the split between political
representatives of Kosovo Serbs was further widened by the decision to boycott the elections
by some prominent representatives, such as Momçilo Trajkoviç or Marko Jaksiç, a deputy
chairman of Vojislav Kostunica’s Democratic Party of Serbia. The permanent “negotiations”
with the international administration over the degree of participation and the hostile envi-
ronment furthered the tense political atmosphere within Kosovo Serb politics. With the begin-
ning of direct discussion between Serbia and the Kosovo Albanian leadership, fears have
emerged anew among Kosovo Serb politicians of being excluded from the political process.

3.3. Lessons Learned from Elections

The Nov. 17, 2001 elections, which were the second democratic elections in Kosovo and
the first free elections to any Kosovo-wide institutions, highlighted the difficulties of fill-
ing the constitutional framework with a working arrangement. The elections confirmed

47 Tanjug, May 23, 2001. The Serbian parliament in fact formally rejected the framework, AFP,
June 1, 2001.
 THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO 129

the dominance of the Democratic League of Kosovo under the leadership of Rugova, while
at the same time providing substantial representation to minorities, especially Serbs. Due
to the relatively moderate turnout among Albanians, and a higher than expected turnout
among Serbs, especially in out-of Kosovo voting, the Serbian coalition “Povratak” (Return)
emerged as the third-largest political force in parliament, with 22 of 120 available seats.
Other minorities, including Roma, Turks, and Bosniaks, succeeded in gaining three seats
in addition to the 10 seats reserved for non-Serb minorities. After the vote, minorities
filled 35 of 120 seats in the parliament, making them a substantial force, with just less
than one third of the seats. As minorities represent around 10 percent of the total popu-
lation of Kosovo, the outcome of the elections constitutes a significant over-representa-
tion of minorities in parliament.48 While this over-representation is probably necessary
to ensure inclusion of minorities in political decision-making processes, the situation is
likely to create resentment over the perceived privileged position of minorities, especial-
ly the Serbian minority. Furthermore, the electoral rule providing for parties and candi-
dates to identify themselves as representing a particular community to run for the reserved
seats prevented the emergence of any cross-ethnic parties.49

Table 1: Results of the Election for the Kosovo Parliament, Nov. 16, 2001.50
No. Percentage No.
Party
of Votes of Votes of Seats
Democratic League of Kosovo (LDK) 359,851 45.65 47
Democratic Party of Kosovo (PDK) 202,622 25.70 26
Coalition “Povratak,” Serbs 89,388 11.34 12/10*
Alliance for the Future of Kosovo (AAK) 61,688 7.83 8
Coaltion “Vatan,” Bosniaks, Gorani 9,030 1.15 1/3*
National Liberation Movement of Kosovo (LKÇK) 8,725 1.11 1
Democratic Party of the Turks of Kosovo (KDTP), Turks 7,879 1.00 1/2*
Christian Democratic Party of Kosovo (PSHDK) 7,701 0.98 1
Justice Party (PD) 4,504 0.57 1
National Movement of Kosovo (LPK) 4,404 0.56 1
Democratic Initiative of Kosovo (IRDK) 3,976 0.50 1/1*
Albanian Ashkali Democratic Party (PDASHK), Ashkali,
3,411 0.43 -/2*
Roma, “Egyptians”
Bosniak Party of Democratic Action of Kosovo (BSDAK),
2,906 0.37 -/1*
Bosniaks
United Roma Party of Kosovo (PREBK), Roma 2,717 0.34 -/1*
Total 120
* First number reflects the seats gained through the votes cast, while the second number represents
the seats granted in accordance with the regulation reserving seats for minority representatives.

48 Lino Sciarra, “Imposing an Electoral System,” Occasional Paper, Europe and the Balkans
International Network, 2002.
49 On this see Leon Malzogu, Illir Dugolli, Reforming the Electoral System of Kosova, Kipred, Pristina
2003.
50 Source: http://www.osce.org/kosovo/elections/results/index.php3.
130 MANAGING HATRED AND DISTRUST ·· PART III

Neither minorities nor the Albanian parties form homogenous blocs. Despite the deter-
mination of all Albanian parties to lead Kosovo into independence, lasting coalitions are
unlikely to emerge due to animosities between the heads of the three largest parties, Rugova
of the LDK, Thaçi of the PDK and Ramus Haradinaj of the AAK. A formal cooperation
agreement between the Serbian coalition “Povratak” and the LDK appears difficult to main-
tain, given the two parties’ fundamental disagreement over the final status of Kosovo—
and the criticism leveled by other Albanian parties against the LDK for cooperating with
the Serbian coalition.51
Others
KDTP
LDK (47)
Vatan
PDK (26)
AAK LDK
Povratak (22)

AAK (8)

Vatan (4)
Povratak
KDTP (3)

Others (10)

PDK

Figure 2: Seats in the First Kosovo Parliament

The institutional system of minority inclusion, as set-up by the constitutional framework,

is the reflection of an ideal development in interethnic relations. But the real situation is
far from ideal. Both the participation of Serbs and other minorities in the presidency of
the Kosovo parliament and the guaranteed control of ministries for minorities are unlike-
ly to translate into cooperation between the majority and the minority in the political sys-
tem of Kosovo. At the same time, the outcome of the first elections provided no party a
sufficient majority, so that there may be a need for a certain degree of informal cross-eth-
nic cooperation. While this possible cooperation would not constitute a power-sharing
arrangement in the strict sense, it would provide for a means of overcoming the deep
political division between the leaders of the Serbian minority and the Albanian majority.
As a result, the outcome of the elections has been described by many observers as being
ideal for creating incentives for cooperation.52

51 Wolf Oschlies, “Wahlen im Kosovo: Ungewißheiten nach dem Urnengang,” SWP Brennpunkt,
Dec. 2, 2001, available at: http://www.swp-berlin.org/produkte/brennpunkte/parlkos1.htm.
52 Ibid.
 THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO 131

The several-month-long dispute between Albanian parties about the composition of

the government—and the failure of Rugova to achieve a swift election as president of
Kosovo—pointed to the deep divisions in Kosovo politics. The stalemate was only bro-
ken through the active involvement of Special Representative to the Secretary General
Michael Steiner, who assumed office in early 2002. The government, as constituted in
March 2002, was composed of all main parties, including the Povratak Serb coalition and
parties of other minorities. A member of the Bosniak grouping Vatan took the office of
minister of health, and one Serb was put in charge of the Ministry of Agriculture, Forestry,
and Rural Development. In addition, two special positions were given to Serbs: the inter-
ministerial coordinator for returns and ethnic communities and a high counselor to the
UNMIK on refugee return.53 The overall delay in creating the government and obtaining
full participation of the Serb community lasted over half a year. Meanwhile, the Serbian
government has sought to create ties with Serbian participants in Kosovo’s institutions by
asking candidates to sign a commitment to the defense of Serbian national interests and
to follow the decisions of the Serbian government and the coordination center of the
Yugoslav and Serbian government for Kosovo.54
The aftermath of the first elections in Kosovo demonstrated that Kosovo is a divided
society. The divisions run not only between the Serb and Albanian communities, but also
among the Albanian political elite. Without the full weight of the international commu-
nity in Kosovo, there was a real danger that the institutional set-up established in the con-
stitutional framework might not even begin working. The role of the international com-
munity, primarily represented by the special representative to the secretary general, has
been that of an arbiter, but also that of a decision-maker. The international community
still maintains a number of spheres of competencies, including defense and foreign affairs,
which, for obvious reasons, are beyond the scope of the Kosovo government.

4. Alternatives
Because the gap between the communities of Kosovo is so wide that it does not allow for
a meaningful debate on the internal organization of the province—not to mention its rela-
tionship with Yugoslavia—the constitutional framework has not been the result of a domes-
tic dialogue.55 The ultimate, if at times grudging, acceptance of the constitutional frame-
work by all parties is not only due to the recognition that the international actors dominate
the decision-making process, but also due to the lack of any alternative proposal that could

53 Wolf Oschlies, “Ein Kompromiß, bei dem alle verlieren...?” SWP Brennpunkt, Feb. 5, 2002;
Povratak selects candidates for Kosovo government, Serbian Government News Service, May
21, 2002.
54 Povratak selects candidates for Kosovo government, Serbian Government News Service, May
21, 2002.
55 In addition to local parties, the international community also has avoided a comprehensive pub-
lic assessment of alternatives in structuring the institutional set-up of the province, as they are
often intrinsically linked to the final status. For an example of an assessment of alternatives, see
the International Crisis Group, “A Kosovo Roadmap. Assessing the Final Status,” Feb. 1, 2002.
132 MANAGING HATRED AND DISTRUST ·· PART III

satisfy all communities, both ethnic and political. The main political alternatives of the
Albanian parties focus on the status of Kosovo at large—or the full independence of Kosovo.
On the Yugoslav/Serbian side, only a few alternatives have been offered. Besides their insis-
tence of maintaining Kosovo within the framework of Yugoslavia, Serbs offer few visions
for how Kosovo can exist within Yugoslavia. For example, if Kosovo were to be part of
Yugoslavia beyond the symbolic level, it would be inconceivable to not have a federal gov-
ernment that includes significant Kosovo Albanian participation—especially considering
that Albanians constitute approximately 20 percent of the population of Yugoslavia. Yet it
is hard to imagine the majority of the Serbian political elite accepting Kosovo Albanians as
equal political actors, who would be involved in the governance of the whole country.
The mixture of declaratory claims to Kosovo, without any readiness to make over-
tures towards Kosovo Albanians, de facto reduced the claim to Kosovo by most Serbian
politicians to a claim over what is Serbian in Kosovo. This selective claim to Kosovo was
probably most appropriately transformed into a (short-lived) political platform by Çoviç,
who publicly contemplated the division of Kosovo into a Serbian and an Albanian sec-
tion.56 He suggested creating two entities in Kosovo within Yugoslavia: “I support Kosovo
and Metohija within the framework of FRY and the Republic of Serbia, but formed on
the basis of two entities which for a long number of years have been in conflict—a con-
flict of two realistic rights. One is the Serb historical right in this region, the other is the
Albanian ethnic right. Between these two rights, a compromise must be found. If a com-
promise is not found, there will be war and I think that there have already been enough
of those. All those who just talk and criticize remind me of when I first proposed the
plan for the south of Serbia.”57
One can distinguish two types of proposals for partitioning Kosovo. Some plans fore-
saw an outright and total partitioning, which would lead to independence for the
Albanian part of the province, while the Serbian part would remain with
Serbia/Yugoslavia. Another suggestion envisaged not a total partition, but rather a high
degree of autonomy for the Albanian part of Kosovo, while the Serbian part would join
Serbia, or maintain closer links with Belgrade. Despite the reoccurring debates on the
partition, this plan never enjoyed widespread support and can be seen as a reflection
of the uncertainty in political and intellectual circles in Serbia on how to “resolve” the
question of Kosovo. In opinion polls carried out throughout the 1990s, partition never
received broad popular support. Only after the loss of Kosovo in 1999, and the cre-
ation of Serbian enclaves, did support for this long-term solution increase to a fifth or
a quarter of the population.58
A broad debate on partitioning the province began after a speech by Aleksandar Despiç,
president of the Serbian Academy for Arts and Sciences, in 1996. Several years earlier,

56 FreeB92 Vesti, May 18, 2001.

57 INET, May 19, 2001.
58 Sreçko Mihailoviç, “Virtuelna legitimacija treçe Jugoslavije,” Zoran Dj. Slavujeviç, Sreçko
Mihailoviç, Dva ogleda o legitimitetu. Javno mnenje o legitimitetu treçe Jugoslavije, Belgrade: Institute
drustvenih nauka, Friedrich Ebert Stiftung, 1999, p. 157; Mirjana Vasovic, “Vrednosne i ide-
oloske osnove aktivizma,” Sreçko Mihailoviç, et al., Politicka ne-raspolozenja gradjana Srbije,
Belgrade: CPS, 2000, p. 20., Vreme, Nov. 16, 2000.
 THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO 133

Dobrica Çosiç, the Serbian writer and first president of the Federal Republic of Yugoslavia,
had already made a similar proposal.59 The reactions of the Serbian elite to the different
plans for partition were mostly negative. The plans for partitioning Kosovo reflect the
conviction of Serb intellectuals and some politicians that any coexistence of Albanians
and Serbs in one country is impossible. Furthermore, these plans are a result of the deep-
seated fear of Albanian population growth and the apprehension over any potential numer-
ical domination of Albanians over Serbs, even if it might be in the distant future. Although
the plan for partitioning Kosovo—as proposed by Çoviç—was criticized by a significant
portion of the ruling DOS coalition, it also gathered some support. Among others, Rada
Trajkoviç, a Serb observer in the Interim Administrative Council for Kosovo at the time,
and Predrag Simiç, foreign policy advisor to former Yugoslav president Kostunica, wel-
comed the proposal.60 The outright partition of Kosovo remains, however, unrealistic—
given Albanian and international resistance to the idea.
Similar to the plan to partition the territory is a plan to cantonize Kosovo, which was
first proposed in 1998 by the Serbian Resistance Movement, a political grouping of Kosovo
Serbs. The main author of the project was Dusan Batakoviç, historian and current Yugoslav
ambassador to Greece. At the heart of the proposal—launched by representatives of the
Serbian community in Kosovo, lead by Momçilo Trajkoviç—lies the idea of dividing the
province into relatively small homogenous territorial units. The proposed cantonization
can be located in between plans to partition Kosovo and plans for decentralization of
Serbia, as proposed by the Democratic Party of Serbia. The creation of the Interim
Administrative Council and the inclusion of a Serb representative supporting cantoniza-
tion elevated the plan from a marginal proposal to an important, yet controversial, alter-
native in post-war institution building. The plan was proposed again at the Kosovo
Transitional Council in August 1999 by Trajkoviç. He suggested the creation of the five
cantons under joint UN-Serbian administration.61 The suggestion of cantonization itself,
as well as the removal from international control, triggered an outright refusal on the side
of Bernhard Kouchner as head of UNMIK. Kouchner alternatively suggested a “regroup-
ing” of Serbs under international protection, which would emphasize the non-permanent
nature of any territorial division of Kosovo along ethnic lines. That proposal was meet by
strong resistance from the Albanian side.62
The creation of cantons embodies a number of risks. A territorial division between
national communities might lead to a long-term partition of the province, especially when
some cantons are contiguous to Serbia proper. Additionally, even though some of these
cantons have greater wealth than the rest of Kosovo, the economic situation in most can-
tons would be desperate: Isolated, mostly rural areas with little freedom of movement are
not the ideal tool to provide for a long-term stabilization of Serb-Albanian relations. In
addition, the formalization of enclaves will further speed up forcible population transfers
between the two communities, will prevent the return of refugees and will lead to an

59 Radivoj Cvetiçanin, “A Storm over Serene Parting,” AIM, June 12, 1996; Dragos Ivanoviç, “Drzavna
kriza Srbije,” Republika, 16, April 30, 1995, p. 6.
60 Vreme, May 25, 2001; Inet, May 20, 2001.
61 Glas Javnosti, Aug. 28, 1999.
62 Glas Javnosti, Aug. 28, 1999; Blic, Aug. 28, 1999.
134 MANAGING HATRED AND DISTRUST ·· PART III

increased homogenization of even larger parts of Kosovo. The establishment of long-term

ethnic enclaves, which are not viable without a firm and close integration into the larger
entity, will antagonize the Albanian community, who fear partition, while limiting the
Serbian community to non-viable, isolated areas.
Thus, a cursory glance at alternatives to the current institutional set-up in Kosovo high-
light the lack of acceptable proposals that could create long-term stabilization and ade-
quately address the needs and demands of both the minority and the majority. At the
same time, there is a clear need to grant Serbs in Kosovo a considerable degree of auton-
omy, as the current political and social climate does not allow for their treatment accord-
ing to basic human rights standards by the majority.63

5. Conclusions
The current institutional set-up of Kosovo, established only slightly less than two years
after the end of the war, marks a distinct departure from earlier experiments by the inter-
national community in administering the territory of the former Yugoslavia. From Mostar,
to Eastern Slavonia, to Dayton-Bosnia, to Macedonia, the international community has
been engaged in constructing institutions and legal frameworks for the governance of ter-
ritories affected by inter-communal strife. While the record is mixed, and the situation
presents obvious difficulties, the international community’s approach has had a certain
degree of development.
Unlike in Bosnia, where the institutions were set up by the peace agreement and elec-
tions followed within nine months of the end of the war, in Kosovo the institutions were
not drafted in negotiations, but were entirely designed by the international community.
Furthermore, the Kosovo elections were carried out with a considerable waiting period
after the end of the war, nearly two-and-a-half years later. The different approach to insti-
tution building in Kosovo may be beneficial. It is preferable to build institutions that do
not reflect the particular interest of the parties to the conflict, those who were originally
responsible for dismantling the pre-war institutional order. The new institutions should
not enshrine the fiefdoms established during the conflict by the warring parties. And later
elections may be better, because they can put some distance to the war. This allows par-
ticipants to make choices that they might not be able to make in an immediate post-war
setting, were considerable inter-ethnic tensions are pervasive.
The institutional framework of Kosovo (and of Macedonia) suggests a clear departure
from consociation and territorial autonomy as the institutional cure for ethno-political
conflict. The agreements implemented in Krajina and Bosnia—as well as the more local
arrangements, such as Mostar or the Muslim-Croat Federation—have consistently com-
bined recognition of the territorial separation of communities that was created by the con-
flict with a complex system of power-sharing within a relatively narrow level of central
power. The current arrangement in Kosovo explicitly denies recognition of the de-facto

63 Alexandros Yannis, Kosovo under International Administration. An Unfinished Conflict, Athens:

ELIAMEP & PSIS, 2001, pp. 67-68.
 THE LEGAL FRAMEWORK FOR POST-WAR KOSOVO 135

territorialization of ethnic communities within Kosovo64 and does not institutionalize a

consociation-based system of democracy in the narrow sense. In fact, the current arrange-
ment for Kosovo is in these respects reminiscent of the framework peace agreement for
Macedonia from August 2001.65 While Kosovo is a clear departure from the truly diverse
society of Bosnia—where there are three constituent people and no clear majority-minor-
ity relationship throughout its territory—the system for Kosovo could be seen as a lesson
from the failure to establish a functional central government in Bosnia.
It is clearly too early to judge whether the political system prescribed for Kosovo is
more successful than the one imposed on Bosnia. Nevertheless, one can note that the sys-
tem proposed for both seem to be in a strangely reversed order. While Bosnia—without
a long history of strained interethnic relations before the war and a high degree of inter-
marriages and cross-ethnic ties—received a rigid system that emphasizes the ethnic divi-
sions born in the course of the war, Kosovo’s system does not enshrine ethnicity to the
same degree. And yet, inter-ethnic relations in Kosovo are considerably less likely to
improve significantly, due the history of strained relations between the Serbian and
Albanian communities.
Before the institutions of ethnic diversity can be filled with meaning, there is a need
to establish respect for the human rights of the Serbian communities in Kosovo. The key
aim of the political system of Kosovo is to allow for the emergence of a democratic Albanian
political elite, which is capable of running the province autonomously. The inclusion of
minorities is considerably less important, given the current numbers—even if one con-
siders the pre-war census. Multiethnicity, not part of the experience of interethnic rela-
tions in Kosovo’s past, is unlikely to emerge as a key characteristic of the society in the
future. The only possibly space for interethnic cooperation in Kosovo lies at the local level,
in areas where a degree of diversity might exist. The record of the past 10 years, howev-
er, does not suggest that, even on a local level, any degree of substantial cooperation is
likely to emerge in the near future.

64 This is especially the case in Mitrovica, where repeated demands by the Serbian political lead-
ership of Northern Mitrovica for a separate commune were denied by the international com-
munity; see International Crisis Group, “UNMIK’s Kosovo Albatross: Tackling Division in
Mitrovica,” June 3, 2002.
65 Framework Agreement (Macedonia), Aug. 13, 2001.