KOSOVO: GOK OPPOSES EULEX AGREEMENT WITH SERBIA

C O N F I D E N T I A L SECTION 01 OF 03 PRISTINA 000362 SIPDIS DEPT FOR DRL, INL, EUR/SCE NSC FOR HELGERSON E.O. 12958: DECL: 03/14/2019 TAGS: PGOV PINR PREL KV SUBJECT: KOSOVO: GOK OPPOSES EULEX AGREEMENT WITH SERBIA Classified By: Ambassador Christopher W. Dell for Reasons 1.4 (b),(d). ¶1. (C) SUMMARY: The Government of Kosovo (GOK) continues to object to a draft law enforcement agreement that EULEX plans to sign with Serbia. Kosovo's objections center around an implied reference to the "six points," some terminology in the agreement, and the negative impact that it may have on Kosovo's case before the International Court of Justice. A potential path to agreement exists by making the EULEX-Serbia agreement one of four law enforcement cooperation agreements, including protocols with Albania, Macedonia, and Montenegro. However, we are running out of time and EULEX tells us that Brussels wants to see the agreement signed in the next week or two. We have advised EULEX and the Quint embassies that they need to find a way to accommodate some of the GOK's concerns about the text and suggested that EULEX use EU visa liberalization as a lever to extract greater flexibility from Belgrade over language. Finally, we have urged EULEX to postpone signing the protocol for as long as possible. If EULEX proceeds to sign the protocol without getting the GOK's blessing, it will follow UNMIK's path and lose support and credibility within Kosovo. END SUMMARY Technical Intent, Political Perception -------------- ¶2. (C) Following days of public teeth gnashing in the media on the harmful impact of a proposed information-sharing agreement (known locally as the Police Protocol) that EULEX plans to sign with Serbia's Ministry of Interior to foster cooperation in organized crime investigations, the Government of Kosovo (GOK) has told us that it will refuse to endorse the agreement. Both President Fatmir Sejdiu and Prime Minister Hashim Thaci tell us that the agreement exceeds EULEX's mandate and encroaches on Kosovo's sovereignty. EULEX, meanwhile, contends that the agreement is a technical instrument with a narrow focus that will allow EULEX to exchange information with Serbian law enforcement institutions and pursue more effective investigations into transnational smuggling and regional organized crime. EULEX points to limited agreements on money laundering and terrorist financing with Albania, Montenegro, and Macedonia as examples of similar efforts to establish links with regional law enforcement. Manifold Objections -------------- ¶3. (C) The GOK is challenging EULEX's authority to enter into any agreement with a neighboring state, arguing that this is its sole prerogative The GOK also contends that the cooperative arrangements with Kosovo's other neighbors do not have the same legal significance as the Police Protocol, which gives the appearance that EULEX is a state actor responsible for law enforcement activities in Kosovo and empowered to act on Kosovo's behalf. On the agreement's substantive content, the GOK's principal objection centers on the agreement's preambular reference to the UN Secretary General's November 2008 report to the Security Council, which contains the infamous "six points" previously rejected by Kosovo. The GOK, also, objects to the agreement's use of the term "boundary line" as opposed to the word "border," arguing that this further undermines Kosovo's status as a sovereign state bordering neighboring states. And, the President's office has expressed human rights concerns related to the prospect of EULEX providing personal data on Kosovo citizens, without their consent, to Serbian authorities. Role of ICJ Proceedings -------------- ¶4. (C) President Sejdiu's legal adviser, who coordinates Kosovo's preparations for its case before the International Court Justice (ICJ) on the legality of the country's declaration of independence, tells us that she has been discussing the police protocol's significance with Sir Michael Wood, former FCO legal adviser and the GOK's chief representative before the ICJ. From accounts that we have PRISTINA 00000362 002 OF 003 heard, Wood is advising the Kosovars that EULEX's agreement will jeopardize Kosovo's case before the ICJ, as the existence of the agreement supports what Wood characterizes as a strong argument in Cyprus' brief to the ICJ that Kosovo does not meet the indicia of statehood because international actors and organizations play a powerful role in running the country. The agreement, according to Wood, runs the risk of strengthening this argument, as it appears that EULEX is responsible for law enforcement institutions in Kosovo and is entering into a bilateral agreement with Serbia on Kosovo's behalf. EULEX Meets with the President and Prime Minister -------------- -------------- ¶5. (C) EULEX Head of Mission Yves de Kermabon met with President Sejdiu and Prime Minister Thaci for dinner on August 19 and during an office call on August 20 to discuss a way forward. Following wide speculation in the media that the GOK was prepared to reject the agreement, the two meetings turned into discussions on how to control the media backlash and buy time to salvage a workable arrangement that will allow EULEX access to the information it needs from Belgrade, while at the same time addressing the Kosovars' concerns. During the August 19 dinner, EULEX tried to sell the police protocol as a "small, transitional, technical arrangement," but neither Sejdiu nor Thaci accepted the premise. Our readout of the August 20 meeting from both EULEX and Kosovars in attendance indicates that both sides want to defuse the tensions that have dominated the media over the previous several days. We advised both Sejdiu and Thaci prior to the meeting that they needed to find a way not to say "no" and needed to show the media that the GOK is maintaining a strong, collaborative relationship with EULEX, expressing a commitment to work with EULEX on a solution that will satisfy both sides. Press statements from both sides following the meeting sought to calm the roiled political waters. Finding a Solution -------------- ¶6. (C) The Quint embassies, the International Civilian Office (ICO),and EULEX met on August 21 to discuss a way forward. EULEX is frustrated that its technical agreement is in deep political trouble. The European diplomatic representatives expressed concern that the GOK's hardline may signal trouble for EULEX's and ICO's executive mandates in Kosovo and said that such a development would hurt Kosovo's path towards European integration, reflecting poorly in the European Union's upcoming Progress Report and Feasibility Study and giving the five non-recognizing EU states a louder voice on Kosovo policy in Brussels. We focused attention on finding a way to maintain the agreement's technical substance while minimizing perceptions that the agreement impinges on Kosovo's sovereignty or reintroduces Serbia's "six points" agenda through a back door. A Role for Multiple Agreements -------------- ¶7. (C) The GOK has suggested that it would find the agreement more palatable if it can be couched as one of four law enforcement cooperation agreements with neighboring states: Albania, Macedonia, Montenegro, and Serbia. With Albania, MaQdonia, and Montenegro, each of Kosovo's neighbors would sign the agreement with EULEX, the GOK, or both. We would ask the GOK how it prefers to proceed. As for an agreement with Serbia, the Prime Minister has told us that, with other agreements as cover, he might be able to accept an EULEX agreement with Serbia, given that Pristina and Belgrade cannot pursue bilateral agreements in the absence of reciprocal recognition. (NOTE: Both the ICO and EULEX have specific mandates to assist Kosovo in regional cooperation. END NOTE) Changing The Language -------------- PRISTINA 00000362 003 OF 003 ¶8. (C) We have also proposed to EULEX that it remove the reference to the UN Secretary General's November 2008 report to the Security Council. This thinly veiled mention of the "six points" poisons perceptions here, and removing the reference does no harm to the agreement's technical content. The existing reference sits in the agreement's preamble and helps define EULEX's role in Kosovo. We suggested to EULEX this week that the following might achieve the same goal: "In accordance with the agreements that facilitate the work of EULEX in Kosovo..." EULEX Deputy Head of Mission Roy Reeve told us that EULEX negotiators tried such a formulation, and Belgrade refused to accept it, insisting on references to both UNSCR 1244 and the November report. ¶9. (C) This failure, however, need not be the last word. The Quint in Pristina acknowledged that Belgrade stands to gain the most from this agreement: visa liberalization for travel to the EU. We reminded the Quint that this gives Brussels negotiating leverage. Moreover, we should not feel locked-in to the existing language just because Belgrade leaked the agreement's text to the media. We should not, we told the Quint, hold Pristina accountable for Belgrade's bad act nor encourage such behavior in the future by accepting it now. How Much Time Do We Have? -------------- ¶10. (C) International Civilian Representative Pieter Feith is currently in Brussels and is trying to buy as much time as possible to find a solution. The Europeans are telling us that September 15 is an outside deadline, as this is a functional milestone for the European Union's visa liberalization program for Serbia. The police protocol, according to the UK, is necessary to satisfy Brussels' concerns about the integrity of Serbia's border with Kosovo. Feith will return from Brussels on August 23 and will join de Kermabon in a meeting with Prime Minister Thaci on August 24. We expect this meeting to define our timetable for finalizing a solution. Comment: -------------- ¶11. (C) Finding a solution for the EULEX-Serbia police protocol will not be easy. The faith of Kosovo's leaders in EULEX is flagging, and the controversy is increasingly seen by local political observers as a repeat of the "six points" controversy from November 2008. The GOK has been resolute in its discussions with us and has pleaded that we not force Kosovo to accept an agreement that it believes runs counter to its interests. At the same time, the GOK must understand that interfering with EULEX's mandate will only damage its standing in Brussels. For now, we have bought some time, but we need to use both EULEX's desire not to follow UNMIK's path towards local ignominy and the GOK's stated wish to find common ground on the agreement to identify a solution with which both sides can live. The wild cards are in Brussels and Belgrade. We need Brussels to prevail on Belgrade to soften its stance on the language in the preamble. If Brussels will not make the effort, or Belgrade fails to respond, then we cannot guarantee that Kosovo will bless this agreement. DELL