By Henry H. Perritt Jr., professor of law at
Chicago-Kent College of Law
November 13, 2005
On Oct. 24, the
United Nations Security Council voted to begin "final status" talks for Kosovo,
a process that should lead to recognition of Kosovo as an independent state. It
has been 14 years since the people of Kosovo voted for independence in a
referendum. The United States government must make sure that diplomacy leads to
final status rather than to further bureaucratization of the nation-building
I first visited Kosovo in December 1998, when Serb forces under
Slobodan Milosevic were losing their grip on the territory, having maintained a
police state for 10 years, and having driven the majority Albanians from their
positions in government, economic institutions, schools and the police
Shortly thereafter, NATO intervened after Milosevic refused to
sign the Rambouillet accords, which guaranteed political autonomy to Kosovo.
NATO drove Milosevic's military and special police forces out of the territory.
The UN set up a political trusteeship, and NATO deployed some 15,000 troops to
I've been back several times a year since then,
working with political parties through five free and fair elections, with the
local Provisional Institutions of Self-Government on privatization and economic
development, and with the university on improving education of law students. A
few dozen of my students have accompanied me. I have interviewed more than a
hundred former commanders and soldiers in the Kosovo Liberation Army, which
engaged in guerrilla insurgency against Milosevic's oppression before the NATO
The majority of people in Kosovo want their own state. They
have proven their capacity to govern themselves through democratic processes.
They are entrepreneurial and resourceful in the context of a market economy.
They are proud of their heritage. They love the United States, seeing it as
their only protector against a history of repeated betrayals of their
aspirations by European diplomats.
The Kosovars, 75 percent of whom are
Muslim, forswear fundamentalism and treasure their history of pursuing
self-determination across religious lines in their own community. But they are
frustrated, six years after an implicit international promise of a referendum on
In short, they are ready for independence. They are already
de facto independent. Any notion of folding Kosovo back into Serbia is a
dangerous mirage. The Kosovars have already proven that they will fight to break
free of Serbia.
The question is: Will the international community accept
reality and accede to the aspirations of the majority for self-determination? It
will, if the United States provides forceful leadership. If the U.S. does not,
and leaves the European Union in the driver's seat, disaster looms.
European Union has great difficulty making hard decisions. That's not a moral
failure; it's a result of the political structure of the European Union. Left
alone, Europe will shrink from accepting reality and hide behind concerns that
Kosovo is not ready yet. It will instead concoct another muddle -- a complicated
legalistic spider web that divides responsibility and leaves no one accountable.
It will likely be called "conditional independence."
No one knows what
"conditional independence" means. It might mean a little bit of independence
now, with more to be doled out over time according to certain international
criteria. That's exactly what Kosovo has had for six years, and everyone,
including the UN Security Council, agrees that the status quo is not viable. Or
it might mean complete independence now, with the threat that sovereignty might
be taken back, piece by piece, if the Kosovars do not "behave." That's
Bosnia-Herzegovina, where an international administrator, under questionable
legal authority, nullifies election results and locally enacted legislation on
an ad hoc basis, without any form of judicial review.
The United States
must push hard for a straightforward, simple solution: independence and
recognition of Kosovo as a sovereign state. That should not be done in the
spirit of antagonism for Europe; it should be done with a sophisticated
appreciation of the internal political dynamics of Europe.
Kosovo would still be dependent on the international community in ways that
would provide leverage. Side agreements would be necessary--and the Kosovars
know it--in four areas: continued security support by NATO, continued economic
assistance, law-enforcement assistance, and protection of human rights by
international institutions such as a special human-rights court in Kosovo
staffed by international judges. Each of these side agreements can be contingent
on further progress toward Kosovo's goals: rule of law, democracy, respect for
human rights of minorities, and economic development in a market
There is more than enough here to occupy the final status
negotiators, who should not become distracted by designing complicated
mechanisms that would keep Kosovo under a 21st Century colonial subjugation by
international institutions with which it has had an unhappy
Fortunately, the Bush administration recognizes the need for
forceful leadership. It has assigned some of its best people to work on final
status for Kosovo. This level of interest and commitment must continue, through
the multilateral process authorized by the UN.
But if negotiations aren't
producing any final status, the U.S. should be prepared to act
The United States should make clear that if final status
negotiations drag out with little prospect for a concrete outcome, the U.S. will
recognize Kosovo as an independent state regardless of what anybody else
That might be a useful threat to keep the process moving. It
would be a better outcome than "conditional independence."