Kosovo's Constitutional Fiction

PRISTINA, KOSOVO: One year after NATO's war over Kosovo, renewal is to be seen everywhere: in reconstructed houses; in the many shops opened in the ground floors of ruined buildings; in the budding cultural, intellectual, and journalistic life of Pristina. In only one area – politics – do these energies face a serious obstacle. Kosovo's political logjam is due, in part, to the inexperience of Kosovo's political parties, but it is mostly the result of a contradiction in UN Resolution 1244 which serves, for now, as a kind of constitution for Kosovo.

This document maintains the fiction that Kosovo is subject to the "sovereignty" of the "Federal Republic of Yugoslavia." In the resolution's words, the UN mission for Kosovo (UNMIK) must provide "substantial self-government for Kosovo" while "taking full account" of "the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia." Considering that it was Yugoslavia under the Slobodan Milosevic, an indicted war-criminal, which attempted genocide against the Albanian majority of Kosovo, the requirement seems akin to telling someone to jump ten feet into the air while taking into full account the need to keep his feet on the ground.

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The provision, adopted to satisfy countries worried about their own potential breakaway regions (Chechnya in Russia, and Tibet in China), violates the principle, engraved in common sense if not in international law, that genocide nullifies sovereignty – that a state cannot seek to extinguish a people and yet insist on governing them.

UNMIK, of course, was not established to carry out the orders of Slobodan Milosevic and does not do so. Nevertheless, the contradiction at the heart of 1244 hinders Kosovo's administration. Consider privatization of the economy, formerly run on socialist lines. Under the Yugoslavian constitution of 1974 now provisionally used in revised form by UNMIK, industry is "owned" by parliament. (In reality, of course, the Communist Party was in charge.) However, Kosovo has no parliament, while Yugoslavia (meaning, Serbia) does. Theoretically, funds from privatization in Kosovo should go to Serbia. UNMIK scarcely intends to send money to Milosevic; yet neither, thanks to 1244, can it set up a Kosovar parliament.

Legal limbo is the result. Ajri Begu, head of the Bank for Payments and Transfers and co-head of UNMIK's economic policy board, comments, "Life started here from the first day after the war. Now we have done what we can do as citizens, and we need someone to play the role of a state to set the rules for investment."

But a state is what Resolution 1244 rules out. Kosovo is something utterly new: an internationally mandated stateless state. It has every form of political organization: NGOs, an international governing authority, political parties of every stripe. But what it needs most, namely government, it is denied.

So everything is improvised. Those doing the improvising, unfortunately, are not only UNMIK, but criminals, both international and domestic, who revel in a legal vacuum. Their specialties are drugs, smuggling, and, recently, traffic in women. Corruption may become what it has nearly become in Russia: not the exception to the rule but the rule itself.

This October local elections will be held. What will be the powers, competencies, and resources of the mayors to be elected? Whatever rules are improvised by UNMIK, they will lack the legitimacy which a Kosovar constitution would enjoy. No matter how well intentioned, UNMIK rule cannot be democratic.

Intervention in Kosovo will succeed only when a true body politic is established. UNMIK can act more boldly to create economic and political structures than so far. Yet, due to Resolution1244, it cannot write a constitution for Kosovo. Russia, China, and others on the Security Council would likely prevent this. Can the Kosovars write a constitution on their own? Maybe. Given today's legal ambiguity, there appear to be few obstacle to moves by the Kosovars to establish their own governing institutions.

To suggest this is not to say that it will occur. The degree of devotion to democracy among local parties is unknown. Political violence has rampaged since the war – not only against Serbs but against political moderates. In the war's aftermath, the Kosovo Liberation Army unilaterally took de-facto power in many cities. The UN accommodated these self-appointed authorities. Will the KLA willingly relinquish office if a democratic vote goes against them? The answer is unclear.

Success in resolving these issues has repercussions beyond Kosovo. It could offer an example of successful international intervention to prevent a human catastrophe. Failure would cast a shadow over similar efforts in future. Ardian Arifaj, managing editor of Koha Ditore, Kosovo's most alert newspaper, comments that "it is in a way a good thing that 'the internationals' don't have a vision for Kosovo. It leaves room for us to develop a vision." Mrs. Nekibe Kelmendi, whose son and husband were murdered at the war's outset, and who is now Co-head of the Department of Justice for Kosovo, agrees. "We do not need to ask the security council in order to become a state. There are other paths. In part, it will depend on other states around us, who can recognize us. In the last analysis, self-government cannot be derived from international documents; it is in the people. It is ours."