The History behind a Declaration of Independence: Kosovo and its impact on the World

 © Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

The History behind a Declaration of Independence: Kosovo and its impact on the World (first published in 2008)

On 17 February 2008, Kosovo, the seventh nation to declare independence from the former Yugoslavia geared itself to become the youngest sovereign entity of the world. For Kosovo Albanians, the secession signifies the successful conclusion of decades of violent struggles, bombardments, murder, rape, pillage and sacrifice. For the international community, the secession symbolizes the beginning of deep divisions and diplomatic warfare.

Nations opposing the independence of Kosovo, do so, primarily, to prevent the declaration of independence in Kosovo from becoming a precedent for future secessionist movements. The fears pervading societies, nations and their leaders are grounded on the belief, that acceptance of Kosovo’s independence may undermine the stability and territorial integrity of other high-risk nations worldwide. Multi-ethic, and muti-national States are high-risk nations. However, the impact of Kosovo on the rest of the world, particularly towards Sri Lanka, is minimal.  Multiple international and regional stakeholders supporting Kosovo’s independence, is absent in many current secessionist movements. Moreover, the path towards Kosovo’s secession is marked by a series of unprecedented events, which clearly distinguish the situation in Kosovo from others in the rest of the world.

Distinguishing Kosovo: The Road to Independence

Kosovo is a unique and novel experiment in the history of the world. A violent secessionist movement operated in the background of Serbian[1] State sponsored ethnic cleansing of Kosovo Albanians. Subsequently, international diplomatic and military interventions occurred to avoid a ‘humanitarian catastrophe’ and nations other than the United Kingdom asserted the validity of humanitarian intervention, for the first time.  Military interventions, in the form of NATO bombardments, occurred without express Security Council authorisation and for the first time, post facto Security Council authorization was asserted to justify the use of force under Article 51 of the United Nations Charter. Former Republic of Yugoslavia, (hereinafter FRY), contested the legality of the use of force by NATO, before the International Court of Justice, symbolising the extent of international institutional involvement in the conflict. In 1999, Kosovo became a protectorate of the United Nations under Security Council Resolution 1244, with an express agreement to facilitate a final political solution for Kosovo, one which provides for substantial self-government while maintaining the territorial integrity of former Yugoslavia. The United Nations, in supporting the independence of Kosovo, made a conscious decision to stray away from the mandate, thus creating a complex situation that can be distinguished from many other nations currently facing secession.

Historical Overview

At the beginning of the Balkan conflicts, the Federation of Yugoslavia consisted of eight units, six republics, namely Serbia, Croatia, Slovenia, Montenegro, Macedonia, and Bosnia-Herzegovina and two autonomous provinces, Vojvodina and Kosovo. This autonomy was a result of decades of brutal repressions by dominant groups in the region. Ironically, it is the same autonomy that marked the beginning of the modern blood bath of Kosovo. Autonomous regions, unlike the republics were not considered bearers of Yugoslav sovereignty, and were subordinate in status to the republics. Autonomous regions had no right of secession. Kosovo was declared an autonomous region, as opposed to a republic due to the demographics of the population. Kosovo consists of a 90% ethnic Albanian majority with approximately 120,000 ethnic Serbs. Ethnic Albanians were said to have their homeland elsewhere, and therefore autonomous regions populated by a majority of Hungarians in Vojvodina and Albanians in Kosovo, were given a lesser status than the republics.

Initial struggles of the Kosovo Albanians revolved around the need to advance from an autonomous region to a republic. The struggle also symbolised severe harassments and discriminations against the minority Kosovo Serbs by Kosovo Albanians, which coincided with the rise of nationalism in Serbia. These events climaxed in 1989 to culminate in the removal of Kosovo autonomy. The second stage of the struggle, focused on re-establishing autonomy, and after Bosnia and Slovakia gained independence, the focus shifted to gaining independence from Yugoslavia. Initial resistance revolved around political and non-violent movements organised by the League for a Democratic Kosovo (LDK). LDK created a parallel government, taxation and education system within Kosovo. The non-violent movement worked admirably for several years, until the lack of progress towards independence and increased Serbian violence, resulted in the formation of Kosovo Liberation Army (KLA), group of Albanian militants who fought relentlessly up until the 1999, to secure independence.

In the months preceding the NATO bombing, Kosovo Albanians were harassed, discriminated and tortured. Approximately 1000 Albanians were murdered in the internal conflict. Kosovo Albanians were forced out of their homes by Yugoslav military, paramilitary units and Serbian police in massive numbers leading to allegations of ethnic cleansing. After the NATO forces undertook Operation Allied Force, and during the period of international conflict, approximately 10,000 people were killed, mostly Kosovo Albanians, and mostly at the hands of the Yugoslavian military. According to the Report of the Independent International Commission on Kosovo, during the climax of the international conflict approximately 90% of the population was displaced, either escaping the conflict or as a result of ethnic cleansing.

From an internal conflict to an international conflict: Humanitarian catastrophe and Operation Allied Force

The main basis in distinguishing Kosovo from other high-risk nations lies in the unprecedented high level of international and regional involvement in Kosovo. Security Council Resolutions 1160,1199, and 1203 in 1998, acting under Chapter VII of the United Nations Charter, condemned the violence and declared the internal conflict in Kosovo as a ‘threat to international peace and security’ and demanded that Yugoslavia comply promptly and effectively with the Rambouillet agreement. The Council also expressed concern at the ‘impeding human catastrophe’ and promised further action if the parties did not reduce hostilities. Direct authorization to use force in Kosovo failed to materialize as proponents of military intervention feared a Russian veto on any such mandate in the Security Council. The Council was at a deadlock. In this backdrop and in the face of escalating violence, on 24 March 1999, NATO launched its 11-week air strike. The attacks took place without express Security Council authorization.

In the aftermath and during the NATO military interventions, proponents, including the United States, rationalized the air strikes as necessary to avoid a ‘humanitarian catastrophe’. United Kingdom, at the Security Council, based its arguments on the emergence of a new doctrine of Humanitarian Intervention. Germany, after a prolonged parliamentary debate, and Belgium, in the International Court of Justice case concerning the legality of the use of force, concurred with UK and based its legal justifications on humanitarian intervention. This was the first time in history that a legal argument for humanitarian intervention was presented at an international forum, where there was also genuine human rights violations.

Before the invocation of humanitarian intervention as a justification in Kosovo, States were reluctant to utilize it even in genuine instances of humanitarian emergency. The interventions of Vietnam in Cambodia, to oust Pol Pot responsible for the Khmer Rouge genocide in 1978, actions by India in Pakistan, to secure independence for Bangladesh and end repression in 1971, and action by Tanzania in Uganda, to oust Idi Amin in 1979, were justified on the basis of self-defense. Prior to Kosovo, humanitarian intervention was asserted only once, in the aftermath of the Iraq-Kuwait war, when the UK, France and USA used force to establish safe havens for Kurds in northern Iraq. Even here, the intervention was not presented as a legal argument and was espoused only by Tony Blair, as the Prime Minister of the UK, to a domestic forum. Thus the NATO humanitarian intervention in Kosovo was uniquely different to anything experienced before and was a strong factor in establishing and maintaining international interest and stakeholders in the conflict and subsequent independence.

From an internal conflict to an international conflict: United Nations involvement in the conflict 

Use of force in international relations must be in accordance with Articles 2(4) and Chapter VII of the United Nations Charter. Article 2(4) prohibits the use or threat of use of force in international relations between States. Chapter VII makes it mandatory for States to obtain Security Council authorisation prior to the use of force. Article 51, provides for the exception on the absolute prohibition on the use of force, and allows States to exercise unilateral or collective self-defence, until the Security Council has taken measures necessary to maintain international peace and security.

The Security Council Resolutions dealing with Kosovo did not authorise the NATO action, and indeed such sanction was a practical impossibility with Russia’s threat to veto any such mandate. Lack of express authority did not hinder NATO action as a majority of NATO States took the view that Security Council Resolutions 1160, 1199 and 1203 indicated implicit authority to use force and such force was necessary to further the aims of the Security Council. As per the views expressed at the Security Council meetings and before the International Court of Justice, these aims included maintaining peace and security of the region, preventing the escalation of violence and the impending humanitarian catastrophe, and to persuade Yugoslavia to implement the provisions of the Rambouillet agreement. Additionally along with implicit authorisation, some States also depended on post facto Security Council authorisation to strengthen the legal position of the bombings. The conspicuous omission of any reference to the bombing campaign in post war Security Counsel Resolution 1244, dealing with reconstruction of Kosovo, was taken by member States, particularly Belgium, as an indication of post facto authorisation. This was once again a novel turn of events in the history of the world. For the first time post facto Security Council authorisation was presented as a legal justification on the use of force. 

 Rebuilding Kosovo: United Nations and ICTY

After the NATO bombings, Yugoslavia entered into a peace agreement with the allies. Under the agreement, Yugoslavian jurisdiction over Kosovo was suspended and the United Nations was mandated under Security Council Resolution 1244 to assert its jurisdiction over the area to help establish substantial autonomy and self-government in Kosovo.   Since 1999 the United Nations has been involved in Kosovo, rebuilding the civil administration, judiciary and political structure to facilitate the final political settlement. The direct presence of the United Nations, the jurisdiction given to it by FRY and the Security Council, and its involvement in the independence process, presents some semblance of legitimacy in Kosovo’s independence process. This degree of involvement is absent in many other high-risk nations.

Additionally the presence of an ad hoc international criminal tribunal, the International Criminal Tribunal for former Yugoslavia, with jurisdiction over the escalating conflict, at the time of hostilities, is another rare occurrence and symbolises extensive international involvement in the conflict.

Kosovo as a precedent?

For a small nation in the world, Kosovo has outdone itself in presenting the international legal order with multiple first time incidents. Legal justification for humanitarian intervention, reliance on implied authority coupled with post facto Security Counsel authorisation on the use of force, and the case before the International Court of Justice on the legality on the NATO bombings, has sent ripples through the waters of international law. However, even protagonists, including the UK, USA and Germany, have been quick to point out that none of the aforementioned incidents should be regarded as precedents for future action.

Similarly it is difficult to see the independence of Kosovo as a precedent to most existing secessionist movements. Certainly in Sri Lanka, India, Russia and China secessionist movements do not enjoy the wide international support experienced by the KLA. Particularly in Sri Lanka, international interest, so far, has been manifested in the form of donor conferences, diplomatic interventions and sporadic statements condemning actions of warring parties. Security Counsel under Chapter VII has not condemned the situation as a threat to peace and security. Indeed no nation has, in the recent years, threatened military action against the government or the rebels. International interest has been minimal in Sri Lanka, when compared to that of Kosovo. As a consequence, international stakeholders are lesser in numbers and their pressures on the government are not of the same level experienced by Serbia in 1998 and 1999. Unless mass atrocities occur, in the form of crimes against humanity and genocide, retaliation of the world community, to the extent of a humanitarian intervention is unlikely. It is highly doubtful that the conflict will escalate into an international conflict to the level experienced in Kosovo.

Most comparable situation with Kosovo is seen in the Kurdish controlled region in Northern Iraq. Just like Kosovo Albanians were from neighbouring Albania, Iraqi Kurds have their origins from neighbouring Turkey.  Similar to Kosovo, the Kurd minority was repressed by Iraqi governments and was subject to persecution. From 1991, up until the US war in Iraq, UK, US and France militarily intervened to protect the minority. It was the first time that UK espoused humanitarian intervention, although it was in Kosovo that UK espoused a doctrine to that effect and other nations acknowledged the permissibility of use of force to avoid a humanitarian catastrophe. The use of force for the military intervention to protect the Kurds, much like in Kosovo, was not authorised by the Security Council. Never the less the protagonists relied on implicit authorisation offered by Security Council Resolution 688. Today, the Kurdish region enjoys autonomy within a greater Iraq. Although the persecutions has subsided, similarities in the situations that lead to the independence of Kosovo, is much greater in Northern Iraq, than in Sri Lanka.

Immediate aftermath of independence

The immediate aftermath of independence and the problems that Kosovo is currently facing should cure all those who believe that independence is an easy panacea for all evils. Kosovo is facing multiple problems both at international and domestic fronts. In the international arena, the European Union, proponents of the liberation of Kosovo from Serbia, and a vital factor in its final independence and immediate future, is in disharmony. Several members including Spain, Cyprus and Romania have emerged as formidable opponents to a unified European Union recognition of an independent Kosovo. Major powers including Russia, China, India, and Brazil, stalwartly refuse to recognize Kosovo as a separate entity from Serbia. Russia’s ominous decision to veto United Nations’ membership of Kosovo resonates cold war rhetoric.

Serbia, from which Kosovo declared independence, continues to declare the succession illegal, and stoutly refuse to recognize a separate nation. It continues to exert influence on parts of northern Kosovo, where approximately 60,000 Kosovo Serbs continue to profess allegiance to Serbia and are expected to participate in the Serbian local government elections scheduled in May. Following contentious deliberations, Serbia is to continue with the interest payment of a Kosovo loan, a responsibility that would ordinarily rest with the independent State. Additionally, Serbia threatens to reduce, if not sever, diplomatic ties with nations recognizing independence and halt negotiations on its accession to the European Union.

Conclusion

Secessions occurred throughout history, and will continue to do so, in the face of oppression, better economic prospects, and for variety of reasons. Past instances of secession has involved that of Pakistan in the partition of India in 1947, the break away of Singapore from Malaysia in 1965, Bangladesh from Pakistan in 1971, States emerging from the breakup of former Soviet Union, and the six independent breakaway States of the former Yugoslavia, including Croatia, Bosnia-Herzegovina, and Slovenia. In the face of past secessions, it is highly erroneous to suggest that Kosovo would trigger a stream of new secessions. Kosovo’s road to independence was violent, with heretofore unprecedented international involvement, and has created substantial opposition. Kosovo also is a resonating example of a newly independent State’s dependence on international acceptance of its status. If anything Kosovo would serve to deter others who may believe that a unilateral declaration of independence is an easy panacea to cure all ills.

For now, the situation of an independent Kosovo remains exceedingly precarious and unbelievably volatile. Refusal of majority of the world to accept Kosovo’s independence, thus far, symbolizes significant obstacles in its claims of legitimacy. However the same nations agree that while independence is not the most desirable option, it may be the least destabilizing for Kosovo. This is good news for Kosovo. In contrast, the evolving rift between permanent members of the Security Counsel and within NATO, foreshadows any jubilation and symbolizes mounting problems for the future of Kosovo and for the world.


[1] The capital ‘S’ in ‘Serbian’ would be used to indicate the Serbian nation. To distinguish Kosovo Serbian population from the Serbian population in Serbia, the Kosovians will be described as ‘Serbs’ and the Serbian population as ‘serbian’, with a simple ‘s’ in this article.

 

 © Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s