Or how the phoenix of dialogue keeps rising from the ashes…

I can recall very little of what Dr Kissinger wrote about Kosovo. Since he is a prolific writer, and I am a skimpy reader, this is not surprising. But what does come to mind is that he was strongly opposed to sending troops to Kosovo¹, which I remember as being more or less along the James Baker argument of “we have no dog in that fight” and that he thought souring relations with Russia (and China) over Kosovo, creating a “New World Disorder”², is simply not worth it. Both of these positions were coming from a most pragmatic viewpoint – does any of that promote direct US interests? Does it solve a problem without creating a bigger one? If the answer is no to either, don’t bother no matter how strong other arguments are.

And there is a lot to be said in favor of both positions. In the end, ideals are great but international affairs are practical and come down to whether one can achieve something. Kosovo seems to be an internal Serbian problem, so why get involved? And Kosovo is a European problem, therefore the Europeans should take care of it. They keep wanting more autonomy anyway.

In the end, other arguments won the day (and, for what it’s worth, I happen to agree with them), the UNSCR 1244 was adopted, a NATO-led force was deployed, and Kosovo entered a phase of international crisis management, as interim as they get. It was always clear that this phase cannot last forever. The commitment was too big, too expensive, and too consuming politically. So the Kosovo problem had to be solved, once and for all. There were many attempts to do this by negotiations, both bottom up (start solving small technical problems, to build confidence), and top down (resolve status and then pick up the pieces). The cycle went on: UNMIK technical dialogue 2004 – 2007³; Vienna status talks 2006-2008 (with the Troika overtime); the EU technical dialogue 2010-2013; and the EU-led extension of the technical dialogue to the top political level from 2013 onwards.

Recently, the talks entered a new phase of the top down political dialogue, between the presidents of Serbia and Kosovo, and with EU facilitation. But this time, unlike any time previous, it seems to be led (and thus owned) by the parties themselves. And it has introduced a political anathema, something that until now caused everyone to reach for garlic and holy water – exchange of territory.

There are many arguments for this solution. The primary one is that an agreement between the parties would end the conflict and allow everyone to move on, integrate into the EU and generally ride off into the sunset. For the international community, there is an added benefit regarding Serbia because it would hopefully eradicate Russian malign influence and reorient the country firmly towards the Euro-Atlantic community. We are not sure how that equation works, but for now we are willing to trust our colleagues.

Also, an argument could be made that it could also allow Kosovo to stop relying on Albania, but in our view this has never really been the case. Mainly because of the heavy international presence in Kosovo, which always prevented it, but also because of the western-inspired hope that a deal is just around the corner, so no need for drastic measures.

Also, as recently demonstrated by Kosovo introducing taxes on goods from Serbia, there is space for escalation of the problem by introducing reciprocity in punitive measures. If Serbia does not recognize Kosovo food certificates, Kosovo could do the same. And since Kosovo does not really export any food to Serbia, and Serbia exports several hundred million worth of goods per year⁴, it is clear that any reciprocity will hurt Serbia more. The same goes for license plates, ID cards, bank registrations, transport certification, veterinary and phyto, etc etc etc. Serbia can, of course, persist. It is bigger, wealthier, and in a better position in almost every way. But any such development would only make life more difficult for both.

Finally, and although it currently looks unnecessary, let us consider for a moment a possibility of failure of the ongoing technical talks. If Kosovo becomes unable to obtain international elements it needs through negotiations with Serbia, what is to stop it from acquiring them from Albania? Until recently, the dialing code, license plates etc. were on this list. Now those problems have been almost eliminated by the technical dialogue, but there are many others, starting from obvious like the locator code for the Pristina Airport, to membership in mysterious organisations that the public never hears about, such as the UIC⁵. If the dialing code talks fail, this could become viable backup for Kosovo. Serbia, of course, knows this and is by now adept in estimating how much of this can international pressure on Kosovo contain. And, now that the can of worms of the territorial exchanges has been opened, how can we realistically tell Kosovo it cannot join Albania, if they both agree? Dr Kissinger argued already in 1999 that independent Kosovo would seek to annex Albanian parts of Macedonia, and possibly even join Albania. So far, this was not the case. But as he was often proven prescient, one should not really rush to conclusions.

Let us also consider what the latest round of partition talks is doing to other elements of the technical dialogue. For many individual items (Kosovo license plates, for instance), it has very little impact. On some others, such as integration of police and courts in the North, it was poison. After all, why would anyone proceed integrating the Zvecan police station back into Kosovo system, if it is going to go back to Serbia anyway? Ditto for other parallel structures operating in those municipalities.

From the Kosovo side, the obvious victim would be the Association of Serb Municipalities. Why bother establishing it, if the number of Serbs in Kosovo is to be reduced to less than half⁶? There is also the less obvious, but a very real option of reducing the Ahtisaari constitutional protections, created for a set of circumstances that might soon cease to exist.

There is also a rarely-mentioned argument that it could make Kosovo function better. It would eliminate complicated procedures allowing various minority vetos, and all those complicated mechanisms devised to protect the minority, approximately half of which would no longer be there. One needs only to look at BiH to see how good the straightforward governance and decision making might feel.

All of this, together with many other arguments why neither partition nor territorial exchange would be a good idea, was eloquently explained in Edward Joseph’s excellent Politico article “How to Restart the War in the Balkans”⁷. Needless to say, we agree with his arguments.

But the main problem with this project is the apparent lack of Plan B. It is good policy to keep a brave face and tell everyone your Plan A is the only one, and of course it will succeed. But it is also good policy having a contingency plan in case it does not work. In the case of Kosovo, this was the hard lesson from 2008, when the facts refused to follow the plans, and Kosovo’s independence was not agreed in Vienna, nor recognized by everyone, with known consequences. Every plan for adjustments⁸ of international presence in Kosovo was based on full success, so when that materialized in part only, there was no option but to pretend everything worked. The fact that this dialogue exist testifies to the contrary.

The other problem is that the genie is out of the bottle. If the partition/swap plan does not work, and there are serious reasons why it could fail⁹, it will be almost impossible to go back to the previous position of integration of the four municipalities. The Serbs now know that there are those on the Kosovo Albanian side who would let the North go, and those in the international community who would not be opposed to the idea. So when faced with a choice of continued integration of police, justice and other Serbian offices into Kosovo structures, or waiting for another chance at partition, they are almost certain to wait. That this is the default position anyway is evidenced by the fact that we are discussing the issue for almost twenty years now, and not because of Kosovo.

If it fails on the Kosovo side, the entire EU approach to the Kosovo problem as related to Serbia is also in danger. Serbia will have a very strong argument to say that its European integration process must be decoupled from the Kosovo issue, as Kosovo is incapable of getting its act together. Technically speaking, this is in no way related to the EU Negotiating Framework requirements for Ch. 35, but the issue has moved from technical to political as soon as the partition talks started. This is a complex issue in its own right, best suited for another discussion. But the basics are there.

If, on the other hand, Serbia decides that it values more the southern corridor than sovereignty over Mitrovica, there will be increased calls for simple partition. Now that the principle has been established, it will be hard to argue otherwise and the main point will be the price. If not land, how about a UN seat? Of course, the international position for now is that it would respect any deal reached by the parties, and that presumably includes partition of the north.

Whichever way it goes, it seems that the pragmatic solution of permanent delineation, as once proposed by Kissinger for Bosnia, already produced direct effects on other processes intended to bring the end of the conflict closer. They are all stopped for now, waiting to see what comes out of it. This wait is now lasting for months, and it could easily turn into years.

Finally, regardless of whether it works or if it fails (defaulting back to the position of continued dialogue), the international community must expect prolonged facilitation presence. Either before or after status is agreed, there will be a need to sort out a number of technical details. Some will be internal to Kosovo, such as protection of the Serbian minority, conditions for operation or integration of Serbian institutions left in Kosovo¹⁰ and so on. Some will relate to interaction between two jurisdictions, such as payments, transit permits, interconnections, international cooperation issues and so on. And some, like property, will be regular succession issues. All of this will require facilitation, even if Serbia recognizes Kosovo after a territorial swap. The ICO was the original control mechanism foreseen now more than a decade ago, and it could not deliver because the original assumptions did not come to pass. Whatever new mechanism is envisaged should take this into account.