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Independence crisis in Kosovo: Indiana University professor available to comment

Timothy Waters of the IU School of Law--Bloomington is available for interviews with print, radio, television and electronic media. Broadcast media: To interview Waters on-camera via the IU Video-Link to Bloomington, please contact Steve Hinnefeld at 812-856-3488 or slhinnef@indiana.edu.

FOR IMMEDIATE RELEASE
Feb. 18, 2008

The Serbian province of Kosovo declared independence on Sunday. The U.S. and most European states are strongly in favor, but Russia and Serbia are firmly opposed. With the declaration, the present period of intense diplomatic maneuvering will continue, further unsettling the already fragile situation. Both sides are marshaling arguments about Kosovo's status in international law and the political implications of independence in the Balkans and around the world.

Indiana University Bloomington law professor Timothy Waters, who has written extensively on the conflicts in the former Yugoslavia, monitored implementation of the Dayton Peace Accords in Bosnia for the Organization for Security and Cooperation in Europe and helped draft the indictment of Slobodan Milosevic at the Yugoslav war crimes tribunal. Here he addresses some of the most unsettled questions:

• Should Kosovo Be Recognized as an Independent State?
• Is Kosovo a Precedent for other Conflicts?
• What Will Happen to Kosovo's Serbs?
• Is Violence Likely?

Should Kosovo Be Recognized as an Independent State?
Legally, there are compelling arguments on both sides.

• The commitments the U.S., European States and Russia made in the Helsinki Charter, for example, suggest that Serbia's territorial integrity must be respected.
• But, the campaign of ethnic cleansing that Serbia conducted against Kosovo's Albanians in 1999, and the UN protectorate established then, suggest that Serbia may have lost any legitimate right to retain sovereignty. The Security Council is supposed to decide the province's final status, but it is clearly deadlocked.

"Of course, formal legal arguments aren't what will decide Kosovo's future -- they are, at most, tools in the hands of the contending parties," Waters said. "Russia has played a skillful hand in deflecting momentum toward independence. A little more than a year ago, when the UN's envoy, Martti Ahtisaari, announced his plan for the province, most Western experts assumed Kosovo would be independent by the middle of 2007. But Russia insisted on a negotiated solution and implicitly threatened to link Kosovo's independence to the outcome of other conflicts." Top

Is Kosovo a Precedent for Other Conflicts?
The legal arguments may be pretexts for politics, but the underlying ideas -- state sovereignty, fear of fragmentation, commitment to supranational norms -- do play an important role in the debate. The states within Europe that are opposed to Kosovo's independence, like Cyprus, have legitimate concerns about their own territorial integrity. So, would independence for Kosovo serve as a legal precedent for other conflicts?

• Citing the province's unique history and international supervision, the United States insists that Kosovo isn't a precedent. "But what does that mean? It's not as if there is a clear answer in international law about this that everyone agrees upon; the answer is going to come out of an ugly and protracted political contest."
• Independence for Kosovo means the partition of Serbia, and it's not possible to simply declare that doesn't have any effect on other situations. It's a precedent if people think it is, and Vladimir Putin, for one, is determined to exploit the value of Kosovo in other conflicts in the former Soviet sphere. If Kosovo declares independence and the U.S. recognizes it, there is a real chance Russia will move to recognize breakaway regions in Georgia or Moldova, for example.
• Certainly, the Serbs of Bosnia have suggested that if Kosovo can separate from Serbia, they can separate too. "Are the two cases connected? Legally no, but politically, of course they are." The U.S. wants independence for Kosovo but it doesn't want to pay the price in precedent and politics which independence implies.

"We can unilaterally recognize Kosovo, but we can't control those other effects, and Russia's actions," Waters said. "These concerns are a large part of the reason that Europe and the U.S. -- despite favoring Kosovo's independence -- were unwilling to press ahead in the face of Russian opposition and were hoping instead that the problem could be put off." Top

What Will Happen to Kosovo's Serbs?
There is another problem that restrained those in favor of independence: It's one thing to declare independence or recognize Kosovo, quite another to actually enforce the new country's authority on its own territory. The northern part of Kosovo, which is populated by Serbs, does not recognize Pristina's authority, and it's not clear how the new state would control the north.

"Nor is it clear that it should," said Waters. "I've argued, in fact, that while we should support Kosovo's independence, we shouldn't force the Serb north into the new state -- it should be allowed to remain part of Serbia."

This approach has several benefits:

• It would make a deal more possible, because it would give Serbia something in exchange for acquiescing in Kosovo's independence. At present Serbia has no incentive to accept a deal: they have already lost the province, the remaining Serbs there have extensive protections -- why should they surrender their formal claim? But, if in return they could keep the north, they'd have an incentive.
• It would simplify the governance of Kosovo. The Ahtisaari Plan calls for an incredibly decentralized and fragile model of governance, and the only reason it does this is to placate the Serb minority. If the Serb north were not part of the state, the remaining Serbs would be spread out among isolated rural pockets. For the Albanians, that would make governance simpler -- not easy, just easier than the nearly impossible task we have set for ourselves under the Ahtisaari Plan.
• There is also a justice-based and humanitarian argument for limiting the partition of Serbia in this way: "The reason we are supporting Kosovo's independence is because we believe the Albanians should not have to live under a regime that oppressed them," Waters said. "I agree, but if our intervention is protective, why should it extend to areas and people who neither need nor want our protection, like the Serbs in the north? They were not subjected to Belgrade's policy of ethnic cleansing; they would prefer to stay citizens of Serbia -- and to stay in their homes. Our current policy, I'm afraid, will sooner or later force them to choose."

"It's late to be imagining alternatives," Waters acknowledges, "but we are in this deadlock in part because from the outset we have refused to consider anything but an all-Kosovo solution. That lack of creative diplomacy has cut off real options. And we should all be clear on one thing: independence for Kosovo won't solve Kosovo's problems. We should be prepared for the possibility that, within a few months or a year after independence, the entire remaining Serb population will have left. Is that a victory?" Top

Is Violence Likely?
Most experts don't expect a return to the full-scale warfare and ethnic cleansing of the late 1990s, though that is as much due to the completion of their physical separation as it is to any international efforts to promote inter-ethnic harmony. The situation in Kosovo is highly volatile, and the very fact that a final decision is being delayed is making it worse.

• One of the arguments in favor of quick independence for Kosovo, advanced by diplomats like Richard Holbrooke, has been that the Albanian population will not tolerate the status quo much longer.
• Waters is not sure this is true, however. "If the political leadership commits to further negotiations or a holding pattern, the population may acquiesce; while in the Serb-dominated north of Kosovo, there are tremendous incentives not to be the first to resort to violence but to simply stall." Still, no one can say with confidence that radicalized armed groups, which have reappeared in the province, might not lose patience and seek to provoke a crisis. And this time, the targets might include UN, NATO and EU personnel. Once the EU presence is in place, the incentives for the West to find a quick path to independence will increase.

"The trouble is, that urgency is one-sided," Waters said. "Nothing so far has made Kosovo's Serbs or Serbia any more willing to agree, nor their patron Russia, and their strategy has been to play for time and play up the opportunity Kosovo presents -- practically, if not legally -- to advance agendas in other conflict situations. Time may be running out, but the sorting out the principles at stake for the rest of the world if Kosovo is seen as a precedent -- and the politics -- won't be made any easier by hurrying." Top

Waters is a frequent contributor to policy debate on international law and politics. His op-eds on Iraq, the Balkans, and international justice have appeared in the New York Times, International Herald Tribune, and Christian Science Monitor. He can be reached at 812-856-2748 or tiwaters@indiana.edu.

For assistance in arranging an interview, contact Debbie O'Leary at 812-855-2426 or devo99@indiana.edu or Steve Hinnefeld at 812-856-3488 or slhinnef@indiana.edu.

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