OSCE REQUEST FOR GUIDANCE: DEFENDING KOSOVO CDI

C O N F I D E N T I A L SECTION 01 OF 03 USOSCE 000031

SIPDIS

SIPDIS

FOR EUR/RPM, EUR/SCE, AND EUR-L (ANNA MANSFIELD AND PETER
OLSON)

E.O. 12958: DECL: 02/06/2018
TAGS: OSCE PGOV PREL KV SR
SUBJECT: OSCE REQUEST FOR GUIDANCE: DEFENDING KOSOVO CDI

Classified By: Ambassdor Julie Finley for reasons 1.4 (b,d)


1. (U) This is a request for guidance. Please see para 4.


2. (C) Summary: Following a coordinated declaration of
independence (CDI) by Kosovo, Serbia will likely use the OSCE
as an important venue to lay out its case before world
opinion on why it believes its territorial integrity has been
violated and why recognition of Kosovo's independence is
illegal. Backed by Russia and a few other OSCE participating
States, Serbia will try to elevate media attention by
convoking a special meeting of the OSCE through the
organization's "Berlin Mechanism," last used in 1999 by
Russia in relation to NATO's bombardment of the former
Yugoslavia. Such a meeting could take place in Vienna as
little as five working days following CDI. The context of
the OSCE debate will focus as much on the legality of
independence under the Helsinki Final Act as its legality
under UNSC 1244. USOSCE, therefore, would appreciate timely
guidance from the Department on the most effective way to
defend our decision to recognize Kosovo's coming independence
(please see paragraph 4 for our specific guidance requests).
End Summary.

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Serbia's Game Plan at the OSCE Post CDI
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3. (C) Following CDI, we believe Serbia's strategy at the
OSCE will be to paint itself as the victim of a U.S.-led plot
to illegally strip it of control over Kosovo, in
contravention of the Helsinki Final Act (HFA),the OSCE's
founding document. By invoking the organization's Berlin
Mechanism, Serbia hopes to stage a special emergency meeting
of the OSCE (which could last up to two days) in order to
elevate media attention and dramatize its case in front of
world opinion (see paras 6-11 for details on the mechanism).
With CDI looming, Serbian PermRep Mira Beham has been
energetically making the rounds among delegations in Vienna,
and claims to have lined up more than the twelve
participating States (pS) Serbia needs to convoke the special
meeting.

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Guidance Request
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4. (C) In order to prepare for this coming debate, we would
appreciate detailed Department guidance on the following:

a. the overall tone we should take in defending CDI. Given
the delicate state of Serbia's ruling coalition and our
interest in encouraging the country's integration into
Euro-Atlantic institutions, how aggressively - or
sympathetically - should we respond to Serbia?

b. the legal arguments explaining why independence and
recognition do not violate the HFA, the UN Charter, the
Charter of Paris, and other applicable international
agreements. Previous Department guidance has made the
argument that "the Helsinki Final Act makes clear that the
principles of sovereignty and territorial integrity need to
be interpreted taking into account the other core principles
mentioned in the Act." Should we interpret this to mean that
our decision to recognize Kosovo will not violate the HFA
because of the need to balance Article IV (territorial
integrity) against Article VII (respect for human rights) and
Article VIII (self-determination)? If this interpretation is
correct, USOSCE would appreciate further Department
elaboration of this approach.

c. the moral arguments for independence (that is, the crimes
of the Milosevic regime, ethnic cleansing, etc.). Serbia's
tendency to play the victim has intensified in recent months
in Vienna. In her PC interventions, Beham consistently
portrays Serbia as the grievously wronged party, despite its
willingness to compromise, and has taken to enumerating all
the abuses she alleges the remaining Serbian community in
Kosovo has suffered since the UN took over administering the
province in 1999. To what extent will we want to correct the
record - that is, to what degree would we want to dredge up
the behavior of the Milosevic regime in Kosovo that
ultimately led us to where we are today? Similarly, to what
extent, if any, do we want to indicate that post-Milosevic
Serbia also bears responsibility for "losing" Kosovo by
failing in any meaningful way to address the problems of the
Kosovo Albanian population? And to what extent, if at all,
do we want to emphasize the moral arguments for independence

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over the legal ones?

d. why Kosovo is not a precedent for other conflicts (that
is, Kosovo's "extraordinary circumstances"). These are
arguments that are especially meaningful for OSCE
participating States facing breakaway regions.

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Coordinating our response with Allies
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5. (C) The most likely scenario following CDI is that Serbia
will direct its ire against us and our Quint partners,
although it is possible we may be singled out. After Serbia
sets the Berlin Mechanism in motion, we will have 48 hours in
which to respond in writing to its charges that we are
violating the HFA. Following our response, the Chair will
have up to three days to schedule a special emergency meeting
of the OSCE, provided Serbia can persuade twelve other pS to
support this demand. The last time the Berlin Mechanism was
invoked in 1999, NATO allies responded to Russia with
identical letters. We are not certain a coordinated response
with our Quint allies will be as easily achieved, but
request Department consideration of this approach. Given the
short time line, such a response would probably be best
coordinated in advance of CDI. Serbia ultimately may fall
short of its goal of finding twelve other pS necessary to
convoke a special meeting under the Berlin Mechanism. Even
if Serbia fails in this effort, the debate over the legality
and legitimacy of CDI will likely continue at the OSCE for
some time at the Permanent Council level. It therefore
behooves us to coordinate as closely as possibly with our
Allies on the legal and moral arguments we will make as well
as the manner and tone in which we deliver them.

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Background on the Berlin Mechanism - what it is
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6. (U) The Berlin Mechanism for consultation and cooperation
with regard to emergency situations was adopted by OSCE
participating States at the first meeting of the Ministerial
Council in June 1991. The mechanism was designed to
facilitate the resolution of serious emergency situations
resulting from a violation of one of the principles of the
Helsinki Final Act in one or more of the participating
States. The procedures foreseen by the mechanism mean that,
from initial invocation to convocation of an emergency
meeting, approximately five to seven days will elapse. An
initial written response will, however, be required within 48
hours of the initial triggering of the mechanism.

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How the mechanism works
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7. (U) If a pS concludes that a "serious emergency situation"
is developing as a result of a violation of one of the
principles of the Helsinki Final Act, that State may seek
clarification from the State or States involved. The
requested State(s) is expected to respond to this complaint.
(The decision states that the State(s) "will provide within
48 hours all relevant information in order to clarify the
situation giving rise to the request".)


8. (U) Should the situation remain unresolved, any of the
States involved in the procedure thus far may address to the
Chairperson of the Permanent Council (PC) a request to hold
an emergency meeting of the PC. The Chairperson will
immediately inform all pS of the request. If, within 48
hours, twelve or more pS second the request to hold an
emergency PC meeting, the Chairperson will immediately notify
all pS of the date and time of the meeting.


9. (U) The meeting will be held at the earliest 48 hours and
at the latest three days after this notification. The
meeting will be held in Vienna and last no more than two
days. The agenda will have only one item; the Chairperson
will ensure that discussion does not depart from the subject
of the agenda. The Chairperson will introduce the meeting by
recalling the facts and stages of development of the
situation. He/she will then open the floor for debate. If
consensus exists, the meeting may agree on recommendations or
conclusions, or decide to convene a meeting at ministerial
level.

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How it has been used in the past

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10. (U) The Berlin Mechanism was used several times in the
period 1991-1993 with regard to the war in Yugoslavia.
However, since the creation in December 1993 of the Permanent
Council, this Mechanism has fallen into disuse. Issues of
concern are now brought up at the PC's regular weekly
meetings in Vienna, rather than at emergency meetings
triggered by the Berlin Mechanism. The Mechanism was last
invoked by the Russian Federation in 1999, in relation to the
NATO bombardment of Yugoslavia.


11. (U) In April 1999, Russia addressed a Note Verbale to 19
pS, all NATO members, invoking the mechanism on the grounds
that the NATO bombardment had violated a number of the
principles of the Helsinki Final Act. Within 48 hours, 17 of
the 19 pS responded with individual - yet identical - Notes
Verbale (emailed to EUR/SCE Kosovo Future Status Coordinator
Joshua Black). The responses categorically rejected Russian
allegations that the NATO countries had violated Helsinki
Final Act principles, and categorized NATO's actions as
humanitarian assistance. Russia failed to secure the support
of twelve pS, so no emergency meeting of the PC was ever
held.

FINLEY