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O 061700Z FEB 08
FM USMISSION USOSCE
TO RUEHC/SECSTATE WASHDC IMMEDIATE 5525
INFO RUCNOSC/ORG FOR SECURITY CO OP IN EUR COLLECTIVE IMMEDIATE
RUEHPS/USOFFICE PRISTINA IMMEDIATE 0691
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 0434

C O N F I D E N T I A L SECTION 01 OF 03 USOSCE 000031 
 
SIPDIS 
 
SIPDIS 
 
FOR EUR/RPM, EUR/SCE, AND EUR-L (ANNA MANSFIELD AND PETER 
OLSON) 
 
E.O. 12958: DECL: 02/06/2018 
TAGS: OSCE PGOV PREL KV SR
SUBJECT: OSCE REQUEST FOR GUIDANCE:  DEFENDING KOSOVO CDI 
 
Classified By: Ambassdor Julie Finley for reasons 1.4 (b,d) 
 
¶1. (U) This is a request for guidance.  Please see para 4. 
 
¶2. (C) Summary:  Following a coordinated declaration of 
independence (CDI) by Kosovo, Serbia will likely use the OSCE 
as an important venue to lay out its case before world 
opinion on why it believes its territorial integrity has been 
violated and why recognition of Kosovo's independence is 
illegal.  Backed by Russia and a few other OSCE participating 
States, Serbia will try to elevate media attention by 
convoking a special meeting of the OSCE through the 
organization's "Berlin Mechanism," last used in 1999 by 
Russia in relation to NATO's bombardment of the former 
Yugoslavia.  Such a meeting could take place in Vienna as 
little as five working days following CDI.  The context of 
the OSCE debate will focus as much on the legality of 
independence under the Helsinki Final Act as its legality 
under UNSC 1244.  USOSCE, therefore, would appreciate timely 
guidance from the Department on the most effective way to 
defend our decision to recognize Kosovo's coming independence 
(please see paragraph 4 for our specific guidance requests). 
End Summary. 
 
--------------------------------------- 
Serbia's Game Plan at the OSCE Post CDI 
--------------------------------------- 
 
¶3. (C) Following CDI, we believe Serbia's strategy at the 
OSCE will be to paint itself as the victim of a U.S.-led plot 
to illegally strip it of control over Kosovo, in 
contravention of the Helsinki Final Act (HFA), the OSCE's 
founding document.  By invoking the organization's Berlin 
Mechanism, Serbia hopes to stage a special emergency meeting 
of the OSCE (which could last up to two days) in order to 
elevate media attention and dramatize its case in front of 
world opinion (see paras 6-11 for details on the mechanism). 
With CDI looming, Serbian PermRep Mira Beham has been 
energetically making the rounds among delegations in Vienna, 
and claims to have lined up more than the twelve 
participating States (pS) Serbia needs to convoke the special 
meeting. 
 
---------------- 
Guidance Request 
---------------- 
 
¶4. (C) In order to prepare for this coming debate, we would 
appreciate detailed Department guidance on the following: 
 
a.  the overall tone we should take in defending CDI.  Given 
the delicate state of Serbia's ruling coalition and our 
interest in encouraging the country's integration into 
Euro-Atlantic institutions, how aggressively - or 
sympathetically - should we respond to Serbia? 
 
b.  the legal arguments explaining why independence and 
recognition do not violate the HFA, the UN Charter, the 
Charter of Paris, and other applicable international 
agreements.  Previous Department guidance has made the 
argument that "the Helsinki Final Act makes clear that the 
principles of sovereignty and territorial integrity need to 
be interpreted taking into account the other core principles 
mentioned in the Act."  Should we interpret this to mean that 
our decision to recognize Kosovo will not violate the HFA 
because of the need to balance Article IV (territorial 
integrity) against Article VII (respect for human rights) and 
Article VIII (self-determination)?  If this interpretation is 
correct, USOSCE would appreciate further Department 
elaboration of this approach. 
 
c.  the moral arguments for independence (that is, the crimes 
of the Milosevic regime, ethnic cleansing, etc.).  Serbia's 
tendency to play the victim has intensified in recent months 
in Vienna.  In her PC interventions, Beham consistently 
portrays Serbia as the grievously wronged party, despite its 
willingness to compromise, and has taken to enumerating all 
the abuses she alleges the remaining Serbian community in 
Kosovo has suffered since the UN took over administering the 
province in 1999.  To what extent will we want to correct the 
record - that is, to what degree would we want to dredge up 
the behavior of the Milosevic regime in Kosovo that 
ultimately led us to where we are today?  Similarly, to what 
extent, if any, do we want to indicate that post-Milosevic 
Serbia also bears responsibility for "losing" Kosovo by 
failing in any meaningful way to address the problems of the 
Kosovo Albanian population?   And to what extent, if at all, 
do we want to emphasize the moral arguments for independence 
 
USOSCE 00000031  002 OF 003 
 
 
over the legal ones? 
 
d.  why Kosovo is not a precedent for other conflicts (that 
is, Kosovo's "extraordinary circumstances").  These are 
arguments that are especially meaningful for OSCE 
participating States facing breakaway regions. 
 
------------------------------------- 
Coordinating our response with Allies 
------------------------------------- 
 
¶5. (C) The most likely scenario following CDI is that Serbia 
will direct its ire against us and our Quint partners, 
although it is possible we may be singled out.  After Serbia 
sets the Berlin Mechanism in motion, we will have 48 hours in 
which to respond in writing to its charges that we are 
violating the HFA.  Following our response, the Chair will 
have up to three days to schedule a special emergency meeting 
of the OSCE, provided Serbia can persuade twelve other pS to 
support this demand.  The last time the Berlin Mechanism was 
invoked in 1999, NATO allies responded to Russia with 
identical letters.  We are not certain a coordinated response 
 with our Quint allies will be as easily achieved, but 
request Department consideration of this approach.  Given the 
short time line, such a response would probably be best 
coordinated in advance of CDI.  Serbia ultimately may fall 
short of its goal of finding twelve other pS necessary to 
convoke a special meeting under the Berlin Mechanism.  Even 
if Serbia fails in this effort, the debate over the legality 
and legitimacy of CDI will likely continue at the OSCE for 
some time at the Permanent Council level.  It therefore 
behooves us to coordinate as closely as possibly with our 
Allies on the legal and moral arguments we will make as well 
as the manner and tone in which we deliver them. 
 
--------------------------------------------- -- 
Background on the Berlin Mechanism - what it is 
--------------------------------------------- -- 
 
¶6. (U) The Berlin Mechanism for consultation and cooperation 
with regard to emergency situations was adopted by OSCE 
participating States at the first meeting of the Ministerial 
Council in June 1991.  The mechanism was designed to 
facilitate the resolution of serious emergency situations 
resulting from a violation of one of the principles of the 
Helsinki Final Act in one or more of the participating 
States.  The procedures foreseen by the mechanism mean that, 
from initial invocation to convocation of an emergency 
meeting, approximately five to seven days will elapse.  An 
initial written response will, however, be required within 48 
hours of the initial triggering of the mechanism. 
 
----------------------- 
How the mechanism works 
----------------------- 
 
¶7. (U) If a pS concludes that a "serious emergency situation" 
is developing as a result of a violation of one of the 
principles of the Helsinki Final Act, that State may seek 
clarification from the State or States involved.  The 
requested State(s) is expected to respond to this complaint. 
(The decision states that the State(s) "will provide within 
48 hours all relevant information in order to clarify the 
situation giving rise to the request".) 
 
¶8. (U) Should the situation remain unresolved, any of the 
States involved in the procedure thus far may address to the 
Chairperson of the Permanent Council (PC) a request to hold 
an emergency meeting of the PC.  The Chairperson will 
immediately inform all pS of the request.  If, within 48 
hours, twelve or more pS second the request to hold an 
emergency PC meeting, the Chairperson will immediately notify 
all pS of the date and time of the meeting. 
 
¶9. (U) The meeting will be held at the earliest 48 hours and 
at the latest three days after this notification.  The 
meeting will be held in Vienna and last no more than two 
days.  The agenda will have only one item; the Chairperson 
will ensure that discussion does not depart from the subject 
of the agenda.  The Chairperson will introduce the meeting by 
recalling the facts and stages of development of the 
situation.  He/she will then open the floor for debate.  If 
consensus exists, the meeting may agree on recommendations or 
conclusions, or decide to convene a meeting at ministerial 
level. 
 
-------------------------------- 
How it has been used in the past 
 
USOSCE 00000031  003 OF 003 
 
 
-------------------------------- 
 
¶10.  (U) The Berlin Mechanism was used several times in the 
period 1991-1993 with regard to the war in Yugoslavia. 
However, since the creation in December 1993 of the Permanent 
Council, this Mechanism has fallen into disuse.  Issues of 
concern are now brought up at the PC's regular weekly 
meetings in Vienna, rather than at emergency meetings 
triggered by the Berlin Mechanism.  The Mechanism was last 
invoked by the Russian Federation in 1999, in relation to the 
NATO bombardment of Yugoslavia. 
 
¶11.  (U) In April 1999, Russia addressed a Note Verbale to 19 
pS, all NATO members, invoking the mechanism on the grounds 
that the NATO bombardment had violated a number of the 
principles of the Helsinki Final Act.  Within 48 hours, 17 of 
the 19 pS responded with individual - yet identical - Notes 
Verbale (emailed to EUR/SCE Kosovo Future Status Coordinator 
Joshua Black).  The responses categorically rejected Russian 
allegations that the NATO countries had violated Helsinki 
Final Act principles, and categorized NATO's actions as 
humanitarian assistance.  Russia failed to secure the support 
of twelve pS, so no emergency meeting of the PC was ever 
held. 
 
FINLEY