KOSOVO: INTERNATIONAL COMMUNITY ADDRESSES

C O N F I D E N T I A L SECTION 01 OF 03 PRISTINA 000049 SIPDIS DEPT FOR EUR/SCE, EUR/ACE, INL NSC FOR HELGERSON USUN FOR GEE E.O. 12958: DECL: 02/03/2019 TAGS: PREL KV SUBJECT: KOSOVO: INTERNATIONAL COMMUNITY ADDRESSES PRACTICAL ISSUES Classified By: Classified by Ambassador Tina S. Kaidanow for reasons 1. 4 (B) and (D). ¶1. (C) Summary. Over the course of several meetings among international representatives in various formulations between January 15 and February 9, the urgent need to address a number of so-called "practical issues" (which more or less correspond to the "six-points" from the UN Secretary General's November report to the Security Council) and the lack of agreement among several stakeholders on key assumptions has become increasingly evident. From January 15 through February 9, a consultative "forum" convoked by EUSR/ICR Pieter Feith to discuss "practical issues" has met three times, the Quint and the Contact Group have both met at least twice, and a number of working level meetings involving the Embassy, EULEX, European Commission, ICO, UNMIK and others have identified five to seven areas requiring a unified approach by the international community in order to move Kosovo out of the UNMIK era and project the EU into the lead role of engaging with Belgrade on practical issues. Following the January 15 meeting of the "Forum", which will be the primary venue for coordination among the international community, the areas of: applicable law, justice, customs, police, religious and cultural heritage, and infrastructure (trains) were identified as priority issues. All stakeholders have agreed that expanding the rule of law in the north through a more robust EULEX presence at the Mitrovica court house is the top priority. In the latest Forum meeting, the Quint pressed for EULEX to move ahead expeditiously with its plans on the court. End Summary Justice: Transitional Solutions for the Mitrovica Court ¶2. (C) EULEX has -- after considerable Embassy pressure -- fully assumed the lead (albeit reluctantly) on reopening the court in north Mitrovica, having finally come to recognize that failure to restore law and order in the north will bring into question its credibility with both the Serb and the Albanian communities. As a result of discussion with the Embassy, EULEX's justice component has elaborated a "transitional" plan that would -- in stages -- expand on the initial presence of EULEX judges and prosecutors who have already begun handling some criminal cases in the northern court. The EULEX plan foresees the appointment of local judges and court workers, a process that would have to be carefully negotiated with stakeholders in the Serb and Albanian communities. EULEX claims that Serb judges with whom this has been initially discussed (currently part of the parallel Serbian system) would be amenable to this arrangement, as long as they were employed by EULEX and not the Kosovo judiciary, and EULEX also believes they can get Albanian buy-in. EULEX would also appoint a Chief Prosecutor and a President of the Court, both internationals. Initially, the transitional department would deal exclusively with criminal cases and apply the UNMIK criminal and criminal procedure codes - both of which are still fully consonant with the Kosovo codes. The most controversial element of the EULEX plan (and one on which we have seen a strong reaction from ICO/EUSR) is the question of court jurisdiction; EULEX has proposed that it operate on a transitional basis only those courts which would lie within a new north Mitrovica municipality, as foreseen by the Ahtisaari Plan, but -- signally -- prior to the new municipality's actual establishment as part of decentralization. This would, in EULEX's view, be a more manageable project and would also allow the rest of the Mitrovica district to move ahead with the rest of Kosovo on court restructuring. In subsequent meetings of the Forum, however, it was agreed that questions of jurisdiction and applicable law beyond the criminal code should not be cause for slowing down this process, as the urgency of getting the court operational trumps all other considerations. Customs: A Phased Approach ¶3. (C) EULEX, the lead international agency on customs, also PRISTINA 00000049 002 OF 003 has a plan for a phased re-opening of the customs points at Gates 1 and 31 in the north. On January 15, it deployed staff to the border points where they simply observed the flow of traffic. They also received copies of the Kosovo Police records of vehicles crossing the border at those two points. Phase two began on January 31, when EULEX police themselves began taking down registration information of vehicles coming and going across the border and sharing this both with Pristina and Belgrade. In Phase three of the plan, EULEX plans to collect revenue and apply all other customs controls; phase four would be the full incorporation of this operation, including patrolling of borders, into the Kosovo customs system. All stakeholders understand, however, that the implementation of phases three and four are dependent on discussions and negotiations with Belgrade, leading to further questions as detailed in para. 4. Applicable Law : Potential Deal Breaker ¶4. (C) With the heightened imperative to open the courts and restart customs in the north, the question of applicable law -- i.e. UNMIK regulation or Kosovo legislation -- has moved to the top of the list of pressing issues to resolve. Members of the Quint and the Forum agreed that while vital, resolving the issue of applicable law does not have to occur prior either to reopening the court in north Mitrovica or starting the first phases of customs restoration. Nevertheless, a durable agreement between ICO and EULEX that is also acceptable to the GOK (and ultimately to Belgrade, assuming such a thing is possible) has to be reached in the near future. Ambassador told the Quint and the Forum that the USG would support a tactical and practical approach, but that we could not negotiate the center. A joint approach between EULEX and the EUSR is needed. ¶5. (C) Keeping in mind the desire to treat Kosovo as an integral unit, ICO sees an imperative to apply a single law and favors the GOK customs code. EULEX agrees that one legal basis is needed and says this issue must be settled before it can begin collecting duties and taxes in the north, as UNMIK and the GOK have different mechanisms and procedures for collecting customs revenues. (The GOK customs law, passed in 2008, is more in line with current EU regulations than the UNMIK regulation passed in 2004.) EULEX initially proposed that UNMIK contemplate issuing an "Executive Directive" ratifying the Kosovo Customs Law as a way of soliciting acceptance from Belgrade on the legal basis for resuming customs operations, but ICO/EUSR has objected to this on the grounds that the Kosovo goverment will find it unacceptable, and it would fundamentally undermine the centrality of Kosovo law as the applicable law. ICO/EUSR is willing to contemplate a "political" endorsement of the Kosovo customs code by the UNMIK SRSG, but no more, at least not until Belgrade's negotiating position becomes clearer with time. Police: Inclusion of Serbs Critical ¶6. (C) EULEX reported to the Forum that in consultation with the GOK, a revised Kosovo police structure has been agreed which places a Serb officer, Dejan Jankovic (a former deputy police chief in both Strpce and Gjilan and a former Deputy Interior Minister in a previous Kosovo government) as one of two deputies to the Director General of Kosovo Police. Jankovic will be in the chain of command and will hold a defined portfolio (not as yet finally decided),but there will be no direct reporting of other Serb officers to this Deputy outside of his direct chain of command. In earlier meetings of the Quint and Forum, Ambassador indicated the need to ensure that Belgrade was properly apprised of this decision, in the hope that it could form the basis of an understanding to bring Kosovo Serb police back to the KPS. Religious and Cultural Heritage: Shifting Dialogue to EU ¶7. (C) The discussion over cultural heritage has been plagued with institutional differences over who has the PRISTINA 00000049 003 OF 003 coordinating role in bringing together relevant stakeholders. In his role as EUSR, Pieter Feith hopes to shift the dialogue on religious and cultural heritage away from UNMIK and towards an EU-led process (which might be an acceptable alternative for the Serbian institutions in a way that an ICO-led dialogue is not). The EUSR co-chaired with the Ministry of Culture a meeting of most stakeholders on cultural heritage in Kosovo. There were no representatives from Serbian institutions or from the Serbian Orthodox church, but the Embassy was in attendance and believes that if the church can get even a tacit green light from Belgrade as an EU-led forum, this venue could have a chance of succeeding. On another front, UNMIK SRSG Zannier, in an apparent attempt to fulfill the requirements of the SYG's November report, made a half-hearted attempt to convene his own meeting on cultural heritage February 10; it was -- as he expected -- boycotted by both the Serbian and Kosovo governments (as well as the ICO),for differing political reasons. Trains: Important but not Urgent ¶8. (C) There has also been discussion among stakeholders on how to address the ongoing illegal operation of Serbian Railways in northern Kosovo. The situation is essentially unchanged from last March when Serbian authorities illegally usurped the line and the rolling stock from UNMIK, and the options for dealing with the situation equally unpalatable. The Forum agreed that while this is an important issue which must be addressed, it does not rise to the same level of urgency as justice, customs and police. This issue will be taken up again in the future. Comment ¶9. (C) EULEX is at a critical juncture and it must convincingly exert its authority north of the Ibar in the three primary areas of its responsibility: justice, customs and the police. It has not been easy to convince the leadership on the ground that it needed to assume some political courage in order to be successful in its technical mandate, but particularly in the justice sector, EULEX has begun to see the importance of success in the Mitrovica court to its overall success in Kosovo. EULEX is now ready to move on the court and to parlay its negotiating position on customs up to Belgrade (once the EUSR position there is established, hopefully within the next one-two weeks),but the series of meetings in the "Forum" format have made clear that not all international players share the same views on key issues of applicable law and the virtue of transitional arrangements. We have been pressing the need for a unified approach among the international community as we tackle these problems, and we will continue to urge a pragmatic and forward-leaning effort as the discussions continue. KAIDANOW