The development of Kosovo institutions and the transition of authority from UNMIK to local self-government


Cluster of Competence
The rehabilitation of war-torn societies

A Project co-ordinated by the Centre for Applied Studies in International Negotiations (CASIN)

Marcus Brand


Geneva, January 2003 - Dr. Marcus Brand is an analyst for the European Stability Initiative (www.esiweb.org) and is currently based in Vienna. He worked with the Organization for Security and Co-operation in Europe (OSCE) in Kosovo from January to March 1999 and from June 1999 to September 2000. He witnessed the turbulent developments which led to UNMIK's mandate in Kosovo and participated in the creation of interim institutions, as he served as the OSCE's first representative in the Secretariat of the Interim Administrative Council. Subsequently, he has visited Kosovo on several occasions as he has worked as Kosovo Analyst for the European Stability Initiative and has recently completed his doctoral thesis on "Kosovo Under International Administration: Statehood, Constitutionalism and Human Rights."

The Cluster of competence Rehabilitation of war-torn societies is a project of the Swiss Interdepartmental Co-ordination Committee for Partnership for Peace which is part of the activities of Switzerland in the Partnership for Peace. This Cluster is co-ordinated by Jean F. Freymond, Director of the Centre for Applied Studies in International Negotiations (CASIN).

The opinions expressed in this paper only reflect those of the author and not of the institutions to which he is or was affiliated.

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Abstract

The paper outlines the institutional development of UNMIK and its evolving models of cooperation with provisional Kosovo bodies of governance. It provides a brief description of UNMIK's mandate, contained in UN Security Council Resolution 1244 of 10 June 1999, and the internal structure the international civilian presence has adopted on the ground. This structure, which, under the overall leadership of the SRSG, divides responsibilities among several international organisations, i.e. the UN itself, UNHCR, the OSCE, and the EU, has become known as the "four pillars".

Although UNMIK alone is authorized by resolution 1244 to provide the interim administration (pending a final political settlement of the status question), it has sought to cooperate with Kosovo population and political representatives. After six months of improvisation, in December 1999 an Agreement on a Joint Interim Administrative Structure was made which provided the basic model for governance in Kosovo until the transfer of responsibilities from UNMIK to elected Provisional Institutions of Self-Government (PISG) in 2002. The paper describes the various bodies established within the JIAS (the Interim Administrative Council, the Kosovo Transitional Council, the 20 Administrative Departments and the JIAS on municipal level in the form of Municipal Councils and Administrative Boards).

After the first municipal elections in October 2000, the JIAS structure began to be replaced by elected Municipal Assemblies and Presidents. Gradually, UNMIK withdrew from an active role in the administration to a more supervisory function. In May 2001, a Constitutional Framework on Provisional Self-Government was adopted by the SRSG. The document is not a constitution as such, as all legislative and executive authority remains with the SRSG himself, it provides rules for the creation and functioning of and interaction between provisional institutions, such as the Kosovo Assembly, the President of Kosovo and the Government, comprised of a Prime Minister and Ministers. General elections were held in November 2001, and the provisional institutions were formed accordingly.

As certain important administrative functions have been excluded from both the JIAS and the PISG, the paper also briefly mentions the basic structure and institutional relation-ships of the police (Kosovo Police Service and UNMIK Police) and the military in Kosovo, including KFOR and the Kosovo Protection Corps. Also, several salient "independent bodies and offices are included.

As this paper mainly focuses on the factual-historical aspects of institution-building in Kosovo under UNMIK's administration, the aspects of analysis and qualitative evaluation are kept rather on the margins. However, the purpose of the paper is to provide an independent and objective background for analytical observations to be made.

Table of Content

Introduction
Mandate and structure of UNMIK
Struggling with parallel structures
The Joint Interim Administration in Kosovo (JIAS)

JIAS institutions and their evolution

  • Interim Administrative Council
  • Kosovo Transitional Council
  • Administrative Departments
  • Municipals Councils and administrative Boards

Living with JIAS
Municipal elections and the transfer of authority to local self-government
A Constitutional Framework for Provisional Self-Government
General elections and the establishment of provisional institutions
The October 2002 municipal elections
Other institutions, excluded from the JIAS or the Provisional Institutions
Police
The military in Kosovo: international security presence (KFOR)
Kosovo Protection Corps
"Independent" bodies and offices
Developing benchmarks for institution-building
Conclusion

Introduction

There are many ways of telling the history of UNMIK's administration in Kosovo since summer 1999 and the gradual development of Kosovo institutions. This paper focuses on the establishment of governing structures as provided for by UN Security Council Resolution 1244, i.e. a form of improvised joint governance in an initial phase and the subsequent establishment of quasi state structures through democratic elections. It does not address economic issues, which nevertheless are vital for the development of stable governance in Kosovo.1 Neither does this paper address important specific aspects of institution-building, such as the creation of political parties and several independent bodies, most saliently the judiciary.2 It also does not specifically address the situation of women in Kosovo's society and their representation in various levels of institutions.3 By the same token, the situation of Kosovo's ethnic minority groups is not amply addressed here.4 In other words, this paper is limited to a description of politico-constitutional institutions, which form the backbone of state administration, i.e. the legislative and executive branches of government.

So far, elections have taken place at municipal (October 2000 and October 2002) and at central Kosovo level (November 2001). Accordingly municipal assemblies and municipal administrations have been formed on the local level, while a Kosovo Assembly and a Kosovo Government (the so-called "Provisional Institutions of Self-Government"), have been formed and are operational since early 2002. Yet, in order to provide a good basis for discussion of the development of institutions in Kosovo, the phase preceding the elected bodies has to be properly described and analyzed. Hence, this paper starts out by outlining the difficulties UNMIK faced in 1999, when several competing "parallel" institutions prevailed. The main focus of this analysis is, however, the creation and development of the Joint Interim Administrative Institutions (JIAS), which served as an interim solution until their bodies were replaced by elected institutions.

The most important characteristic of Kosovo's current institutional environment is the tension between the Kosovars' claim to govern with popular legitimacy, and UNMIK's continuing primacy over the provisional institutions and its acts according to Resolution 1244. The author concludes that these tensions lead to considerable friction and delays in implementing a workable reform and development agenda for Kosovo's society.

Mandate and structure of UNMIK

With its Resolution 1244 the UN Security Council laid down its objective to create "substantial autonomy and meaningful self-administration for Kosovo".5 It set up the UN Interim Administration Mission in Kosovo (UNMIK) "in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo".6

Resolution 1244 is not explicit whether it transfers the right to exercise state sovereignty over the territory of Kosovo to UNMIK.7 However, this is the most plausible interpretation of the Resolution, which lists a series of "main responsibilities", but does not restrict the powers of the SRSG who is the sole legislative and executive authority in Kosovo.8 The Secretary-General's first report on UNMIK, presented already two days after Resolution 1244 on 12 June 1999, outlined the structure of the mission and assigned tasks to the different organisations participating under the umbrella of UNMIK. The report defined the responsibility of the mission's Office for Civil Affairs as "overseeing and, where necessary, conducting a number of civil affairs functions, such as the civil service and economic and budgetary affairs, as well as supporting the restoration and provision in the short run of basic public services, such as public health, education, utilities, transport and telecommunications."9 The mission's Office for Judicial Affairs would be "responsible for the organization and oversight of the judicial system, authenticating legal documentation and related activities."10 The report also mentioned that the tasks of reconstruction, to be led by the European Union, "could include near-term projects in the area of agriculture and markets, and activities relating to commerce; activities to re-establish essential public services and develop programmes for economic recovery; and longer-term capital projects in the areas of housing, utilities, transportation and communications."11

Thus, according to its original mandate, in an initial phase the main tasks of UNMIK were to perform basic civilian administrative functions and maintain civil law and order. Then, it was to organise provisional institutions for democratic and autonomous self-government through elections, gradually establishing substantial autonomy and self-government in Kosovo. As these provisional local institutions were established and consolidated, UNMIK would transfer its administrative responsibilities. In the meantime, UNMIK was also tasked with facilitating a political process designed to determine Kosovo's future status, to be determined in a political settlement. In a final stage, it would oversee the transfer of authority from Kosovo's provisional institutions to the institutions established under the political settlement.12

Only a month after the adoption of Resolution 1244, the Secretary-General further interpreted it in an extensive manner and confirmed the position UNMIK had adopted on the ground in Kosovo:

The Security Council, in its resolution 1244 (1999), has vested in the interim civil administration authority over the territory and people of Kosovo. All legislative and executive powers, including the administration of the judiciary, will, therefore, be vested in UNMIK.13

Subsequently, the SRSG has interpreted UNMIK's mandate extensively and issued legislative acts, which normally presuppose state sovereignty, especially the Regulation(s) on the Authority in Kosovo and the Applicable Law. "Basic civilian administrative functions" hence became to mean that all administrative functions (as basic as they may be under the given circumstances), are exercised by UNMIK alone. UNMIK is, therefore, the only legitimate authority in Kosovo.14 The diplomatic representation of the Federal Republic of Yugoslavia (FRY) at the UN has frequently but to no avail protested against this practise, reminding of the Resolution's apparent confirmation of the FRY's sovereignty over Kosovo.

It probably has to be understood, that the drafters of the Resolution, as well as the brokers for the end of hostilities in June 1999, meant "autonomy within the FRY" as opposed to within Serbia. This, however, contradicts the Yugoslav/Serbian constitutional set-up, which only foresees the status of an autonomous province within Serbia, while the FRY constitution does not even mention Kosovo as a federal unit. This is in contrast to the earlier Yugoslav federation (SFRY) in which Kosovo was one of the eight federal units and was represented in all federal organs, while at the same time enjoying autonomy within the Socialist Republic of Serbia. Nevertheless, the understanding that UNMIK has no obligations or vertical institutional relations to the FRY (or Serbia), and can, therefore, exercise immediate authority normally attributed to a bearer of sovereignty, seems to have been accepted by the international community, and is therefore in line with international law.15

After the demise of Miloseviæ in Belgrade, contacts between UNMIK and the FRY, which had been minimal until then, became more frequent and cooperative. The two sides began to address issues such as the Constitutional Framework or questions concerning taxation, customs regulations or voters' registration for the central elections. However, UNMIK insisted on labelling the dialogue "an exchange of information" as opposed to "negotiations". In the hectic preparation for the first parliamentary elections in November 2001, this relationship became more intensive and culminated in the signing of an agreement entitled "Common Document".16 Its legal value is questionable, however, and it remained open in how far future SRSGs, or even Kosovar representatives, would consider themselves bound by it.

That the FRY has forfeited its ability to exercise sovereign jurisdiction over Kosovo through Resolution 1244 in combination with the regulations later adopted by UNMIK has in the meantime become established UN practise in Kosovo. The FRY has at least partially recognized this state of facts.17 This situation, where UNMIK and KFOR exercise authority normally attributed to the sovereign, opens the question of who, then, is responsible in and for Kosovo in the context of state responsibility.18 In particular KFOR's responsibility and accountability has been subject to much debate within the Kosovo legal and human rights community.19

Entrusted with the civil administration of Kosovo, UNMIK was constituted as a structure of "four pillars", each reporting to the SRSG: Pillar I (Humanitarian Affairs) in the responsibility of the UNHCR, mainly in charge of preparing for the enormous "winterisation" and humanitarian aid programme; Pillar II (Civil Administration), run by the UN itself, in charge of the actual day-to-day administrative management of public affairs; Pillar III (Democratisation and Institution Building) under the OSCE Mission in Kosovo; and Pillar IV (Economic Reconstruction)20 for which the European Union was put in charge. Each "pillar's" head is at the same time a Deputy of the SRSG (DSRSG) within the UNMIK structure. In the meantime, UNHCR has left this structure in June 2000, although it still maintains a presence in Kosovo. For almost a year then, UNMIK had only three pillars (II, III and IV). Following the adoption of the Constitutional Framework in May 2001, a "new Pillar I" under the direct supervision of the SRSG was created. It is responsible for "Law Enforcement and Justice" and has taken over functions normally attributed to Ministries of Justice and the Interior/Home Affairs.21

This "pillar structure" was apparently chosen in an attempt to learn from the difficulties in coordinating international agencies in other comparable situations, such as post-Dayton Bosnia and Herzegovina. In practise, the "pillar structure" basically found its expression in daily executive meetings of the SRSG, his Principal Deputy (PDSRSG), COMKFOR and the pillar heads (the DSRSGs) as well as regular coordination meetings on the regional level. The day-to-day work, however, was carried out by each pillar separately, with little or no proper coordination at all. It is therefore hard to speak of UNMIK as one mission, except when one subsumes only the SRSG's office and Pillar II, i.e. the UN Civil Administration, under the term UNMIK. At the same time, the UN and the SRSG's office's need to coordinate important decisions with the UN Secretariat in New York has often led to frustrating delays and factors for decisions which have little to do with Kosovo realities.22

Struggling with parallel structures

Until the end of 1999, UNMIK continued to operate in the vague situation caused by the existence of a "provisional government" led by the Kosovo Liberation Army (UÇK) and the continued claims by Rugova's parallel Republic of Kosova (RK) system to be invested with popular legitimacy. Important developments, such as waves of violent incidents against Serbs and other minorities and their possessions, the demilitarisation of the UÇK and the establishment of the Kosovo Protection Corps (TMK) fell into this period. The presence of several competing administrative-political authorities represented the prime challenge for the international mission in the first six months of its activity in Kosovo. Only one, UNMIK, was able to assert legitimacy through Resolution 1244, while the others benefited from real political and economic power and were recognised by parts of the population. Already during the initial phase, several voices promoted the idea of "Kosovarisation" and "co-optation".23

Early on, UNMIK recognized the creation of a unified consultative forum as an issue of paramount importance. Only one day after the arrival of SRSG Kouchner in Kosovo did the Kosovo Transitional Council (KTC) have its first meeting. While both the UÇK and some Kosovo Serbs participated, the LDK (Rugova's party) had not accepted the invitation. The LDK's position was that it would refuse to participate unless the other parties represented in the RK Parliament were also invited.24 After a massacre of 14 Kosovo Serbs on 23 July, the Serb representatives withdrew from the KTC in protest. Yet, they returned for a meeting on 21 August only to present a proposal for the "cantonisation" (i.e. ethnic division) of Kosovo, which was fiercely rejected by the Albanian KTC members. Only on 25 August did the KTC meet for the first time with the participation of all key leaders: Hashim Thaçi, Ibrahim Rugova, and the Kosovo Serb representatives Bishop Artemije and Momèilo Trajkoviæ. The establishment of the first KTC was described in the Secretary-General's report of September 1999 as follows:

Since its deployment, UNMIK has made significant progress. It has established structures at various levels that allow the people of Kosovo to provide expertise and to share responsibility and accountability for the development and future of the province. Foremost amongst these structures is the Kosovo Transitional Council (KTC), which meets on a weekly basis under the leadership of [the SRSG]. This body brings together all major political parties and ethnic groups. Its establishment has given Kosovo residents an opportunity to have a direct input into the UNMIK decision-making process and to achieve consensus on a broad range of issues related to civil administration, institution-building and essential services, thereby creating a climate where participation in democratic processes is the norm.25

The KTC was, however, used rather as a platform for politicking for the various participants, than for any serious participation in UNMIK's policy-making process. It was marred by permanent crises and ruptures, and never established a working agenda. On 15 November 1999, Hashim Thaçi announced that he would no longer be attending the KTC and named the continuing problems in Mitrovica, the choice of Alcatel as GSM provider for Kosovo and harassment of his security personnel as reasons. On 8 December, he appeared at a KTC meeting only to claim that the international community was responsible for the deteriorating security situation, not the Kosovo population.

It was clear that UNMIK could only gain recognition by the Kosovo population, in particular its political elite, if it shared administrative responsibility with local representatives. In the absence of any reliable data on the level of support for each political faction, the SRSG eventually decided to bring the various Kosovo Albanian political factions in on equal terms. On 13 December 1999, SRSG Kouchner succeeded in brokering the conclusion of an agreement between Hashim Thaçi, Ibrahim Rugova and Rexhep Qosja.26 The draft agreement was then sent to the UN Secretariat for approval, which was immediately received. Eventually, on 15 December 1999, the "Agreement on a Kosovo-UNMIK Joint Interim Administrative Structure (JIAS)" was formally signed by the three Kosovo political leaders, who each signed "for" their respective political party, while the SRSG "witnessed and accepted the agreement".27 Immediately after the signing ceremony, the first session of the Interim Administrative Council (IAC) was held.

For all three Kosovo signatories UNMIK's decision to give in to Kosovo's interim judges and accept the 1989 law as the basis for the applicable law in Kosovo certainly played a role in their motivation. The decision of the SRSG of 12 December 1999 - only three days before the JIAS Agreement was signed - to declare the 1989 Kosovo law the applicable law in Kosovo, was certainly an important factor in the political dynamics of the time. Whatever political horse-trading might have paved the way for the signing of the agreement, it then seemed to be the only possible way to ascertain UNMIK's authority in Kosovo.

Footnootes:

1 For these issues see the latest report by the Lessons Learned and Analysis Unit of the European Union Pillar of UNMIK: "The Ottoman Dilemma: Power and Property Relations under the United Nations Mission in Kosovo", available at www.esiweb.org.

2 The regular reports of the OSCE Mission in Kosovo on democratisation and the development of an independent professional judiciary are a particularly valuable source on these issues. Available at www.osce.org/kosovo.

3 Apart from publications by various Kosovo women's groups, a good overview is provided by the Swedish NGO Kvinna till Kvinna in "Getting it Right: A Gender Approach to UNMIK Administration in Kosovo", available at www.iktk.se.

4 Most reports published by the UN and its agencies, as well as the OSCE and UNHCR, and many NGO reports on Kosovo focus on this issue.

5 UN Security Council Resolution 1244, of 10 June 1999

6 ibid.

7 A discussion of UNMIK's exercise of powers normally attributed to sovereign power as well as a comparison with other internationalised territories can, for instance, be found in Julie Ringelholm, The legal status of Kosovo, in Kosovo, 1999-2000, The Intractable Peace, Report of the Balkans Working Group, European University Institute, published at www.iue.it.

8 Note that the subsequent UN Resolution 1272 of 25 October 1999 (para.1) establishing UNTAET was much more explicit in this respect, as it included the wording of UNMIK's first regulation already in the Security Council Resolution itself: "Decides to establish, [...] a United Nations Transitional Administration in East Timor (UNTAET), which will be endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice"

9 Report of the Secretary-General Pursuant to Paragraph 10 of Security Council Resolution 1244 (1999), S/1999/672 of 12 June 1999, al. 10.

10 ibid., al. 11

11 ibid., al. 14

12 According to internal UNMIK strategic planning documents, the SRSG's office understands its mission in several stages and phases, which, however, do not quite seem to be consistent with the wording of the Resolution itself. These documents provide for a first stage of purely international "interim administration", a second stage of "transitional administration", with two distinct phases of "establishing" (JIAS) and "overseeing" (reform of the JIAS) and a third stage of "local provisional institutions" (elected officials at the central level).

13 Report of the Secretary-General Pursuant to Paragraph 10 of Security Council Resolution 1244 (1999), S/1999/779 of 12 July 1999, para.35.

14 Report of the Secretary General on the United Nations Interim Administration of Kosovo, UN Doc. 2/1999/1259 of 23 December 1999, para.35.

15 The question of what this means for the fiction of FRY sovereignty over Kosovo, although formally confirmed by UNSCR 1244, has been raised already during the last period of negotiations before the eventual NATO intervention: What does it mean to say that borders have not been changed when the "state" that is supposedly defined by them has no governmental authority within what is putatively its own sovereign territory? asks Robert. M. Hayden, The State as Legal Fiction, East European Constitutional Review, Fall 1998, pp.45-50.

16 UNMIK - FRY Common Document, Belgrade, 5 November 2001.

17 "Decisions with respect to duties, taxes and other revenues collected in Kosovo suspended the fiscal sovereignty of Yugoslavia over this territory." Letter of FRY Deputy Prime Minister Miroljub Labus to SRSG Hans Haekkerup of 15 October 2001.

18 See also EUI Report.

19 See for instance, Cerone, 'Outlining KFOR Accountability in Post-Conflict Kosovo', www.asil.org/insights, October 2000.

20 The EU's own reconstruction efforts, however, are channelled through the European Agency for Reconstruction, which is based in Prishtina, but not formally integrated or connected to UNMIK.

21 It is important to note that, with the establishment of the Joint Interim Administrative Structure (JIAS), as described below, UNMIK and the pillar structure have not ceased to exist, and have not been replaced by the JIAS. However, the bulk of the civilian-administrative work of the UN and the EU are henceforth conducted in the framework of JIAS. The concept of the "pillars" continues to exist in parallel to the joint administration run jointly with Kosovo representatives. Thereby, major policies continue to be conceived and elaborated without Kosovar participation.

22 For instance, all UNMIK Regulations need to be approved by the Secretariat in New York.

23 Filling the Local Power Vacuum in Kosovo, Final Report from Joint Expert Mission 26 July - 6 August 1999 by OSCE and Council of Europe (Balducci, Fleers, Masters and Nordby), 7 August 1999; and Waiting for UNMIK - Local Administration in Kosovo, International Crisis Group, Balkans Report No.79, 17 October 1999.

24 Rugova had come to visit Kosovo for the first time in months on 15 July, but left again after a few hours. The first KTC's first meeting on 16 July was boycotted by Rugova and his LDK, who were unsatisfied with the allocation of places on the Council. Regarding UÇK and LBD as an alliance, they felt that more parties from the RK parliament, especially the Christian Democrats, should be included. They proposed an alternative, for example that the LBD should lose a seat and the Christian Democrats gain one. Nonetheless, the representatives invited to that first meeting of the KTC were: 2 UÇK (Thaçi and Haliti), 2 LBD (Qosja and Hajrizi), 2 LDK (Rugova and Tahiri, both absent), 2 independents (Shala and Surroi), 2 Serbs (Bishop Artemije and Momcilo Trajkovic), 2 other minorities (Bali , Bosniac SDA; Sezair Shaipi, Turkish People's Party). Source: Who's Who in Kosovo, ICG Balkans Report. No.76, 31 August 1999, p.10.

25 Secretary-General's Report on UNMIK, 6 September 1999.

26 Rexhep Qosja, a well known Kosovo Albanian writer and professor of literature, had been a member of the LDK for some years, before he broke with Rugova and established his own political party. Subsequently he became the leader of a multi-party coalition (United Democratic Movement, Lëvizja e Bashkuar Demokratike or LBD), which for some time figured as the third political force next to the LDK and the UÇK. In the course of 2000, the LBD lost much of its appeal to voters in Kosovo, and support for Qosja shrank. He eventually withdrew from politics.

27 According to the wording of the agreement, the three leaders agreed to "participate in the JIAS" which was to be "established by UNMIK."

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