Legal Commentary: Essays/Op-eds
- Hope, Hunger and Serbia
Professor Julie Mertus, Ohio Northern University, Pettit College of Law [October 21, 1999]
- Delayed Learning from Kosovo: Any Chance of Common Understandings of Facts and Law?
Professor Phaedon Kozyris, University of Thessaloniki Faculty of Law, Greece [June 9, 1999]
- Montenegrin Alternative: Transition, Identity, State
Professor Milan Popovic, University of Montenegro Faculty of Law, Yugoslavia [June 4, 1999]
- A Politicized ICTY Should Come to an End
Professor Jianming Shen, St John's University School of Law [May 28, 1999]
- Necessary Foes: Slobodan Milosevic and NATO in Pursuit of Power
Professor Milan Popovic, University of Montenegro Faculty of Law, Yugoslavia [May 28, 1999]
- International Law May Halt the Bombing
Professor Jonathan Miller, Southwestern University School of Law [May 11, 1999]
- Kosovo and the Dangers of Unilateral Presidential Power
Professor Peter Shane, University of Pittsburgh School of Law [April 29, 1999]
- Oil Blockade Threatens International Law of the Sea
Phillippe Sands, Reader in Law, University of London, UK [April 28, 1999]
- Humanitarian Intervention in Kosovo
Professor Jules Lobel, University of Pittsburgh School of Law, and Attorney Michael Ratner, Center for Constitutional Rights [April 13, 1999]
- Legal Grounds of Intervention in Kosovo
Professor Julie Mertus, Ohio Northern University, Pettit College of Law [April 11, 1999]
- Are NATO Actions Prudent and Are They Legal?
Fred Halliday, London School of Economics, UK [April 1, 1999]
- The Obvious Next Step - NATO Complicit in Genocide: Ground Troops Now
Professor Julie Mertus, Ohio Northern University, Pettit College of Law [April 1]
- Ashamed to be a Canadian
Professor Michael Bliss, University of Toronto, Canada [March 26, 1999]
- Official Rationales for Attacking Yugoslavia
Professor Robert Hayden, Director, Center for Russian and East European Studies, University of Pittsburgh [March 26, 1999]
- Air Strikes and Rambouillet
Dr. Kjell Magnusson, Centre for Multiethnic Research, University of Uppsala, Sweden [March 26, 1999]
- How to Bring Peace to Kosovo
Professor Charles Rudick, Chicago-Kent College of Law [January 20, 1999]
- Yugoslavia Has Become an Outlaw Nation
Professor Julie Mertus, Ohio Northern University, Pettit College of Law [January 14, 1999]
- Kosovo and International Law
Dean Henry Perritt, Chicago-Kent College of Law [n.d.]
- Events Justify NATO's Mission in Kosovo
Professor Julie Mertus, Ohio Northern University, Pettit College of Law [October 9, 1998]
- A Lesson Unlearned
Professor Julie Mertus, Ohio Northern University, Pettit College of Law [July 21, 1998]
- Getting it Right on Kosovo
Professor Julie Mertus, Ohio Northern University, Pettit College of Law [April 29, 1998]
- Will Kosovo Explode Next?
Professor Julie Mertus, Ohio Northern University, Pettit College of Law [October 21, 1995]
... see also Legal Commentary: Articles
... see also Legal Commentary: Other Comments/Interviews
The Clinton administration would do well to rethink its blanket opposition to aid for Serbia and Montenegro. Yes, a blank check to the Milosevic regime would reward it for adhering to its nationalist agenda. But targeted aid, such as the European Union's plan to donate heating oil to cities controlled by opposition parties, would advance key U.S. foreign policy goals.
The United States seeks to oust Slobodan Milosevic. His removal is considered a prerequisite for the larger U.S. goal of fostering democratization and long-term peace in the Balkans. Once Milosevic is gone, the United States hopes, law-abiding democratic leaders will take his place.
How does a freezing and hungry Yugoslavia advance U.S. policy goals? Certainly Milosevic will not be hungry this winter. The idea is that the pain and suffering among the lowest strata of society will "trickle up" to the higher echelons. Protests by discontented citizens will lead to policy changes and perhaps even the removal of Milosevic.
The problem is that humans do not behave this way. Cold, dispirited citizens do not take to the streets. Rather, they draw up inside their own homes and try to survive. If the going gets too tough, they try to exit, often leaving the country. Only the few with hope continue to fight, and even they cannot persist for long when they are isolated from supportive networks.
The recent history of Yugoslavia is a textbook example of when people rebel. Ever since the war began in Bosnia, the citizens of Serbia and Montenegro have lived through winter after winter with inadequate heat and food. The thin voice of opposition could barely be heard. Most who could leave did so.
The winter the citizens of Serbia and Montenegro chose to rebel was that of 1996-97. Conditions were not the poorest at this point, but it was the time when people believed positive change could happen. As soon as their aspirations were deflated, the citizens retreated and were silent once more.
Haven't we learned that economic sanctions against Yugoslavia backfire? Milosevic's regime uses sanctions to garner popular support for a xenophobic platform and to generate intense anti-American hostility. Sanctions foster an anti-liberal, anti-democratic atmosphere in which the black market reigns supreme and the rule of law is nonexistent. These conditions feed self-serving nationalists and choke alternative voices.
Denial of emergency economic aid to Serbia is a form of sanction that rewards the leaders the United States has fought against and punishes the people it seeks to support. To ensure that it is advancing rather than hindering its foreign policy goals, the United States should make the following three adjustments in its practices:
First, the United States should quietly support the opposition. Helpful approaches include behind-the-scenes financial and technical contributions, economic support of democratic institutions and the independent media, and specific donations to cities run by opposition politicians (perhaps providing goods not offered through the EU plan). But the United States cannot wave its flag. Visible support of opposition leaders would only backfire, as it would give Milosevic's regime a pretext to label members of the opposition traitors.
Second, just as any aid should be targeted so that it benefits the opposition, remaining sanctions should be crafted so that they pain the regime, not the people. Good approaches include the freezing of assets of certain Serbian leaders and the travel ban imposed on individual supporters of Milosevic. These tactics should be continued and expanded.
Third, as an overarching policy, the United States should do what it can to raise the aspirations of the people of Serbia and Montenegro. Supporters of economic sanctions point out that they send signals of international condemnation of improper and illegal behavior. Carrots can similarly be used to send signals about international approval of support for human rights. For example, a school that includes human rights education in its curriculum could receive economic aid for school supplies. Along with small carrots today should come a promise of larger carrots tomorrow. The United States should urge international and regional bodies such as the World Bank and the Organization for Security and Cooperation in Europe to specify the precise steps that Yugoslavia must follow to gain full acceptance and support. Such actions will signal to people of Yugoslavia that a better future awaits them.
To fuel change in Serbia and Montenegro, the United States should foster hope, not despair.
Professor of Law
Ohio Northern University, Pettit College of Law
[originally printed in the Washington Post; reprinted by permission]
On September 23, 1938 Hitler wrote to Prime Minister Chamberlain that ethnic Germans in Czechoslovakia had been "tortured," that 120,000 had been "forced to flee the country," that the "security of more than 3,000,000 human beings was at stake," and that they had been "prevented from realizing also the right of nations to self-determination." Hitler was laying the basis for humanitarian intervention; a claim to intervene militarily in a sovereign state because of claimed human rights abuses. Although NATO is obviously not Hitler, the example illustrates the mischief caused when countries assert the right to use force on such a basis: it is often a pretext for acting in their own geo-political interests and it sets a dangerous precedent – other governments can do the same.
Hitler's assertions were not the first time a county has used humanitarian excuses to mask social, political and territorial goals. It is a frequent occurrence: whether is was the Russians in the Balkans in the 19th century, the Japanese intervening in Manchuria or the United States in Vietnam, the Dominican Republic, Grenada and Panama. International law professors Thomas Franck and Nigel Rodely concluded in a 1973 study that "[i]n very few, if any, instances has the right [to humanitarian intervention] been asserted under circumstances that appear more humanitarian than self-centered and power seeking." They further pointed out that the failure of countries to intervene when real humanitarian atrocities take place--such as those in Nazi Germany, South Africa under apartheid, and Indonesia (and today we could add the Tutsis the Kurds and others)-- should make claims of humanitarian intervention "highly suspect." They conclude that countries have no legal right of humanitarian intervention under international law.
This historical background should make us very skeptical regarding current U.S. and NATO claims that the war against Serbia is to stop "ethnic cleansing" or even "genocide." President Clinton says the bombings were necessary to prevent a "humanitarian catastrophe," to end "instability in the Balkans" and to prevent a wider war."
But the evidence is otherwise. The NATO countries, as the historical record predicts, appear to be acting primarily in their own self-interests. To date the bombings have created the very evils President Clinton claims he is trying to prevent: over 500, 000 refugees have fled Kosovo. Montenegro, Macedonia, Albania and even Bosnia are being destabilized and Russia is threatening a wider war.
The administration's claims that Serbia was planning this ethnic cleansing and it would have occurred even without the NATO attacks. But even if this were the case, it was the NATO attacks that gave Serbia the opportunity to carry out its alleged plans, particularly in a circumstance when all of the unarmed monitors from the Organization for Security and Cooperation in Europe(OSCE) were withdrawn. Nor should it be overlooked that the bombing itself probably caused many of the refugees to flee their homes. NATO had to have realized that its massive bombing campaign had the potential to create a serious humanitarian crisis, yet incredibly it had made no preparations for housing, feeding or caring for the refugees. Had humanitarian concerns been at the forefront of NATO policy or even a serious concern, such plans would have been a priority.
If the U.S. and NATO really believed that Serbia was planning "ethnic cleansing", then the bombing was the absolute worst strategy; it was almost guaranteed to bring about that result. If the goal was to really prevent expulsions of people from Kosovo there were other peaceful alternatives that should have been undertaken. A sticking point in the negotiations with Yugoslavia was the deployment of 28,000 NATO troops in Kosovo; a compromise could have been worked out by making that force an international force of the United Nations or one that at least included Russian troops. Support for the Kosovo Liberation Army could have ended. Had these and other peaceful means been employed there is a fair chance that the human tragedy unfolding in the Balkans could have ben avoided.
Once again it appears that the claim of humanitarian intervention is a pretext for countries acting in their own self-interest and for their own geo-political reasons. Western countries are insuring that it is they, not Serbia and Russia, who will be the dominant force in the Balkans; NATO is pushing Europe's borders into the edge of Asia. A NATO military base in the region cannot be far behind. Also at play here is the broader underlying interest of the United States to mold the world to its will through a policy of coercive diplomacy. Under this doctrine, when the United States tells another country to do something, it must do so or suffer the consequences. That is what it told Yugoslavia: sign the Rambouillet agreement or get bombed. It is not a way to negotiate and certainly not a way to create a safer world. That is why after World War II, the nations of the world through the Charter of the United Nations mandated that only the Security Council could authorize the non-defensive use of force: unlike the current U.S./NATO bombing, force was to be used in the interest of the international community and not individual states.
Professor of Law
University of Pittsburgh
Michael Ratner Attorney
Centre for Constitutional Rights
The Kosovo Albanians I got to know while working on a book on nationalism in the early 1990s had a way of bidding farewell that I shall never forget. "Next time," they would say, "may we meet in free and independent Kosovo." Most of them, I learned, were not interested in actually changing the borders of their province; for them, self-determination meant choosing their own government and gaining some measure of independence from Serbia. They talked about being part of a free Europe, where frontiers would be fluid and permeable, and the rights of minorities would be protected.
All of this seemed like a fantasy as the fighting began in the summer of 1998. Yugoslav President Slobodan Milosevic believes in borders--and believes in going to any lengths to retain them. Specifically, he believes in the use of force--including mass expulsion and paramilitary hit squads--to keep Kosovo within Serbia, within Yugoslavia. The international community also believes in borders--and has questioned the wisdom and legality of crossing them to settle internal disputes in a sovereign state.
The legal debate concerns a tension between two competing principles: respecting the territorial integrity of states and guaranteeing universal human rights and self-determination. In fact, it is a debate about nothing less than the very purpose of the United Nations. The international community's response to the crisis in Kosovo provides a test case of these competing views.
Those who cling to existing borders view the fundamental purpose of the U.N. as ensuring global security by maintaining the status quo. Others--and I fall firmly into this group--contend that to emphasize security without regard for human rights sacrifices the core purpose of the organization--namely the promotion of peaceful and just societies.
Two weeks ago, when the American Society for International Law met in Washington, that conflict came to the fore in a series of heated arguments. At face value, the words of the U.N. Charter, the most fundamental document of international law, appear to favor anti-interventionists, who believe that intervention is susceptible to misuse and that what a state does within its own borders is largely its own business. Article 2(4) of the charter, which was adopted in 1945, clearly declares that states "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state . . . ." Exceptions exist where a state acts in self-defense or where the U.N. Security Council finds a "threat to the peace, a breach of peace or act of aggression" and authorizes the use of force.
In the case of Kosovo, each of these exceptions is problematic. The self-defense exception has been read narrowly. States may use force against other states only to defend themselves and their allies from actual attack (and not from mere anticipation of attack). The neighboring states of Albania and Macedonia have not been attacked, and the self-proclaimed Albanian Kosovo was never recognized as a state. Thus, the self-defense exception would have to be stretched to apply to Kosovo.
Nor does the Security Council authorization exception apply. Three U.N. Security Council resolutions on Kosovo, which Serbia has flagrantly disregarded, found the existence of a threat to the peace and enjoined Serbia to take certain actions, such as reducing troops. But it would be a strain to contend that those resolutions authorize the use of force. What's more, at the bidding of Russia and China, the Security Council recently and explicitly rejected the use of force.
Anti-interventionists further support their argument by pointing out that another article of the U.N. Charter forbids the U.N. and individual states from intervening in "matters which are essentially within the domestic jurisdiction of any state." But this article also supports the notion of humanitarian intervention. Since at least 1945 and the post-World War II Nuremberg trials, gross violations of fundamental human rights are not considered solely within the domestic jurisdiction of any state but matters of concern to the entire international community.
Read on a little further in the charter, and you will find Articles 55 and 56, which implore "all Members [to] pledge themselves to take joint and separate action" to promote "universal respect for, and observance of, human rights and fundamental freedoms for all," suggesting that the U.N. Charter not only permits intervention on humanitarian grounds, but in some cases requires it.
It's not that humanitarian intervention is a new concept. (Hugo Grotius, the father of international law, recognized the principle as long ago as the 17th century). The broad acceptance of human rights principles is a recent phenomenon, however. And as human rights have gained acceptance, the notion of state sovereignty has lost ground: Where a state is incapable of protecting human rights or is itself the perpetrator of abuses, human rights cannot be guaranteed without eroding the ancient principle of state sovereignty.
One reason for many international lawyers' caution about applauding the doctrine of humanitarian intervention is that, in the colonial and Cold War periods, it could be misused by strong states as a pretext for vigilante activity and for the occupation of weaker and politically disobedient countries (some people would include the U.S. interventions in Grenada in 1983 and in Panama in 1989 as examples). However, the post-Cold War era provides us with an opportunity to salvage the doctrine. Drawing fromthe U.N. Charter itself, U.N. Security Council resolutions and other international documents and decisions, we need to identify workable criteria that limit the scope of humanitarian intervention so as to respect borders. Where human rights abuses target a particular racial, ethnic or religious group, the argument for intervention is strong.
Meaningful humanitarian intervention does not threaten world order. Rather, it vindicates the fundamental principles for which the United Nations was created.
Bajram Kelmendi, an ethnic Albanian from Pristina and one of Europe's leading human rights lawyers, used to say to me, "We may not win, but the law is on our side." Two weeks ago, he and his two sons were murdered by a Serbian hit squad. Their deaths underline a need for a human rights vision that transcends borders.
Professor of Law
Ohio Northern University, Pettit College of Law
[originally printed in the Washington Post; reprinted by permission]
On March 24, the United States led NATO into the first campaign of military aggression against a sovereign state in Europe since World War II. It did so against the principles of international law and of the United Nations charter. It also did so against the rulings of the Nuremberg trials, which declared that "to initiate a war of aggression ... is not only an international crime, it is the supreme international crime."
That NATO is an aggressor is not in doubt. While hardly a "republic" under the dictatorship of Slobodan Milosevic, the Federal Republic of Yugoslavia is clearly a State with internationally recognized borders. NATO is attacking that State militarily, brazenly, although Yugoslavia has not attacked or even threatened any NATO country.
To be sure, Serbian forces have attacked ethnic Albanians in Kosovo, a province that has been part of Serbia since 1913. While Kosovo had a very mixed population in the past, during the years of its "autonomy" under ethnic Albanian rule (1974-1989) it became almost 90% Albanian. The Serbian police have been brutal in response to an armed uprising by the Kosovo Liberation Army (KLA), which began to attack Serb police and to murder Serb civilians in 1997.
The resulting conflict has been horrible and tragic. It is hardly unique in the world, however, nor even particularly noteworthy in terms of victims. For example, the Turkish campaigns against the Kurds in Turkey and in Iraq have killed far more people and destroyed far more villages than the Serb campaigns in Kosovo. Yet NATO is not bombing Turkey (which is, of course, a NATO member).
Perhaps the niceties of international law may be forgotten if the cause is right. But what is the cause?
President Clinton has said that we are attacking Yugoslavia to protect the Albanians there from a Serb offensive, to prevent a wider war, to uphold our values, to protect our interests and to advance the cause of peace. Yet few actions could be less likely to produce these results than the massive assaults now being conducted on Serbia.
Protect the Albanians? It was clear before NATO's aggression that the most likely result of air attacks would be an increase in fighting in Kosovo, and this has happened. The Serbs, committed to holding onto their territory, have increased their attacks on the KLA. The KLA, having gained NATO as its air force, has increased its attacks on the Serbs. Caught in the middle are the people of Kosovo, who are now fleeing the increased fighting. Thus NATO has caused a new wave of refugees.
Prevent a wider war? As the increasing flows of refugees reach Albania and Macedonia, they threaten to disrupt those fragile states. Macedonia is particularly vulnerable, since relations between the Slav Macedonian majority and ethnic Albanian minority there are already uneasy. On the second day of NATO attacks on Serbia, thousands of demonstrators, waving Macedonian flags, attacked the American Embassy, and the Macedonian government stated that anti-NATO sentiment was increasing. So much for, to use Bill Clinton's words, "defusing the Balkans powder keg." Uphold our values? Which values? Isn't international law one of our values? Here, the relevant comparison is with Iraq, where the US conducted the Gulf War because Saddam Husein had invaded a neighboring state, thus changing borders by force. In Kosovo, the US has led NATO into attacking a sovereign state, thus threatening to change borders by force.
Or perhaps the "values" are the need to protect civilians from military attack. In that case, the US will need to put Turkey on its target list, not to mention Israel, which has attacked civilians in Lebanon (part of which it also occupies) with some frequency for many years now.
Of course, Bill Clinton referred to "genocide" in his speech justifying the attacks on Yugoslavia. Yet in Kosovo, about 2,000 people have died in two years, in the course of the brutal repression of an armed insurrection. This is a condition usually called "civil war." Tragic, yes. Incidents of war crimes, almost certainly. But "genocide," no. This is an insult to the memory of the victims of the Holocaust.
Do our values include terrorizing the innocent populations of Belgrade, Novi Sad, Kragujevac, Nis and other Serbian cities? Do they include damaging the power and water supplies of these people? Do they include destroying the livelihood of these people? Are our values, in fact, the same as those we condemned during the siege of Sarajevo by the Serbs (and failed to notice during the siege of Mostar by the Croats)?
Advance the cause of peace? Increasing conflict, and radically increasing the risk of even greater war, seems an odd way to achieve this goal.
Advance our interests? Perhaps. But what are our interests in this case? Bill Clinton has not said. And when we know what they are, will they justify the violations of international law and the betrayal of our supposed values that are manifested by NATO's massive aggression against Yugoslavia?
In a transparent display of hypocrisy, President Clinton has said that NATO is not waging war against the people of Yugoslavia, but against their government. Can anyone believe that people under attack will hate anyone other than the attackers? NATO's aggression has betrayed those who oppose Milosevic's dictatorship, thus strengthening the rule of the man whom Bill Clinton accurately described as "a dictator who has done nothing since the cold war ended but start new wars and pour gasoline on the flames of ethnic and religious division." There is now a new arsonist in the volatile Balkans: NATO.
Robert M. Hayden
Director, Center for Russian and East European Studies
University of Pittsburgh
To bomb Yugoslavia without the consent of the UN is a military aggression violating international law. This serious step is justified by a rhetorical question: Can we really allow a European state to use tanks and artillery against its own population, force people to flee their homes, burn down their houses, and kill innocent civilians?
If the question is posed in this manner, the answer is self-evident. The obvious counter-question, however, is whether this is a comprehensive account of what is going on in and around Kosovo.
For several years a guerilla war has been waged. It was started by the Kosova Liberation Army when, after the Dayton Accord, it was finally made clear that Kosovo would not obtain independence. The explicit goal of the guerilla war was to liberate Albanian-dominated areas in Macedonia, Montenegro, and Serbia, in order to create a unified Albanian state. Thereby the historical injustice done to the Albanian people in 1913 would be corrected.
The guerilla movement has consistently worked for its goal by 1) terrorist acts against Albanian and Serb civilians; 2) attacks on police patrols, official institutions, Serb refugee camps, and military personnel; and 3) using civilians as a buffer.
The main strategy has been to provoke the Serbs into actions that would cause a strong international reaction, preferably a military intervention, which would give the Kosovo Albanians a state which they at the moment are unable to establish on their own. It should be added that this is a completely rational strategy on the part of the guerillas. The KLA has very skillfully employed the means at its disposal: military, political, diplomatic, and media.
No one could defend the massacres committed by Serbs forces in Kosovo. Even if guerilla bases are located in villages, it is unacceptable that civilians or prisoners are being deliberately killed, which has happened on several occasions. However, equally unacceptable are the murders of civilians, committed by the KLA, systematically and in great number. Normally a state has the right to defend itself against such attacks.
The international community has been shocked by Serb offensives but has tended to shut its eyes to the fact that in many cases these offenses have been an answer to guerilla actions. As Timothy Garton Ash writes in his famous article (New York Review of Books, January 1999), the guerilla has the initiative, the KLA decides about war and peace. In fact, there were no large-scale military campaigns in Kosovo before the guerrilla attacks begun. (According to Amnesty International between 1995 and 1997 14 Albanians died in unclear circumstances or when in custody. At the same time 28 people lost their lives in guerrilla attacks. 22 of the victims were civilians; of these 15 were Albanians.)
Trying to handle the situation, the international community put strong pressure on the Milosevic regime, while explaining that an independent Kosovo is out of the question. At the same time no efforts were undertaken to curb the activities of the KLA.
It would have been natural to cut the supply lines of the guerilla, to stop support coming from Albania, and to block access to KLA economic resources in Western Europe. Such a policy would have diminished military tensions in the area, and, above all, given the pressure on Serbia a strong moral justification.
The United States, however, categorically refused to participate in such a policy. Instead, under the threat of bombs, it forced Serbia to accept the Holbrooke – Milosevic agreement in October 1998, which meant that Yugoslav security forces were either withdrawn from Kosovo or returned to their barracks. After that, the guerrillas recaptured most of the areas they had lost in the summer of 1998 and resumed military actions both in Kosovo and on the border between Yugoslavia and Albania.
After the events in Racak the international community issued an ultimatum to “both parties”. If they did not sign the agreement formulated by the USA, NATO would bomb Serbia. It is obvious to everyone that this is an unusual strategy in negotiations. How could you resolve a conflict by threatening one of the parties with exactly those sanctions that the other party has been constantly demanding and consciously tried to provoke?
The breakdown in Rambouillet was followed by disquieting and distasteful manipulations of public opinion. On the one hand, the Serbian refusal to sign the agreement has been presented as an unreasonable obstruction to what the foreign ministers of the EU countries referred to as a “balanced agreement”. On the other hand, the Albanian signature is described as a major concession. They gave up independence and obtained only “enlarged self-rule” or “autonomy”.
To anyone who has read the Rambouillet document, this description of its character seems utterly dishonest. The “interim agreement” without any doubt means that Yugoslavia more or less immediately will give up its control of Kosovo, and in three years agrees to accept a “final settlement” depending on “the will of the people.”
Nowhere in the agreement is Kosovo´s relationship to the Yugoslav Federation or the Republic of Serbia constitutionally defined. Neither does it say that Kosovo is a part of Yugoslavia. The word autonomy is not even mentioned. True, in some places there are formulations to the effect that the sovereignty and territorial integrity of Serbia/Yugoslavia should be respected, but in view of other clauses and the text as a whole this is of no importance. A remarkable detail, by the way, is the fact that the Federal Republic of Yugoslavia, the Republic of Serbia, and Kosovo are supposed to be signatories of the agreement. This would actually mean that Kosovo is already not a part of the Yugoslav State.
Another problematic aspect is the insufficient protection of the Serbs and other ethnic minorities. As in Dayton, the Americans have simply forgotten the language issue. In this case it would be natural that Kosovo is bilingual according to principles similar to those in Finland. That would however be contrary to the idea of Kosovo as an Albanian state, and in general the constitutional mechanisms are such that an Albanian parliamentary majority would rather easily push through solutions that are contrary to the interests of the Kosovo Serbs. While it is true that the agreement verbally provides for the protection of minority culture and language, the formulations remind one of the rights of immigrant groups in the US.
You could go on, item for item, and, unfortunately, the Rambouillet document must be regarded as a sloppy piece of work which does not even try to find a solution to this complex problem. In addition, the textual changes that were made by the end of February are one-sided, merely satisfying Albanian interests.
Furthermore, the agreement was apparently not even discussed in Rambouillet, as the Albanians consistently refused to sit at the same negotiating table as the Serbs. It is obvious that no government would sign such a document, and it is very strange that European politicians should endorse the text. The only reasonable explanation would be that they have not read it.
By forcing the secession of a minority-dominated territory in a sovereign state, a precedent is set which might have far-reaching consequences. Although the Albanians constitute 80-90 percent of the population in Kosovo, their share of Serbia’s population is 17 percent. What are the implications for a country like Macedonia? If ethnic criteria were used, as they have been in this case, the Albanian demands on Macedonian territory would be even more justified, since the percentage of Albanians in that country is much higher than in Serbia.
Above all, the agreement is contrary to the central principle behind the resolution of the Bosnian conflict: the borders of the former Yugoslav republics must not be changed. Programs to integrate Serb or Croat areas into larger national states have been considered both illegitimate and impossible. This seems now to have been forgotten. With the help of bombs, the international community is trying to promote a solution, which means that, on grounds of principle, it could hardly oppose the partition of Bosnia or Macedonia.
It is true that the Serb negotiators have stubbornly clung to cultural autonomy as defined in the present constitution of Serbia. In that situation one argument might have been that the Albanians of Kosovo must be given the same rights as the Serbs in Bosnia. That argument is now impossible to use, since the international community is acting against the very principles it formulated in the autumn of 1995.
In practice, the United States has been acting as an ally of the guerrilla. This was made perfectly clear by some remarkable statements made by Madeleine Albright after the unsuccessful Rambouillet meeting. The Albanians were urged to sign the agreement, in order to make the situation “black and white” again. If they refused, the United States would “withdraw its support” and stop the inflow of weapons. What this means is, first, that an agreement was formulated which in reality would be unacceptable to the Serbs, and, second, that the US could have taken action against the guerrilla if it had wanted to do so.
Leading politicians are now declaring that they were forced to bomb in order to save human lives. The cynicism of this argument is shocking. The only possible military solution would be to enter with ground troops and fight both the guerrilla and the Yugoslav army. As the United States is not prepared to do this, the whole strategy is built on the assumption that Milosevic will give in. If he refuses, NATO will have to escalate the air strikes to an extent that would cause enormous material damage and loss of civilian lives in Serbia. The effects in Kosovo, however, will at least initially be negligible. Instead the door is opened to a bloodbath that will make the violence in Bosnia look pale.
Kjell Magnusson, PhD
Senior Research Fellow
Centre for Multiethnic Research
Uppsala University, Sweden
Return to JURIST's Kosovo & Yugoslavia: Law in Crisis
JURIST: The Law Professors' Network™ is directed by Professor Bernard J. Hibbitts, Associate Dean for Communications & Information Technology, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania, USA, in consultation with an international Advisory Board. E-mail JURIST at JURIST@law.pitt.edu.
© Bernard J. Hibbitts, 1999. All rights reserved. These pages may not be copied, reposted, or republished, in whole or in part, electronically or in print, without express written permission.
JURIST regrets that it cannot provide legal advice. For assistance with specific legal problems, please consult a licensed attorney in your jurisdiction.