The Problem of Kosovo

Yesterday evening, 21 February, a mob attacked the US Embassy in Belgrade, burning part of the Chancery. The US reaction was predictable. Sean McCormack, State Department spokesman stated that:

"…they [the Serbian government] bear a responsibility to ensure that there is not, on the part of their ministers and their officials, an incitement of violence. We have seen a lot of disturbing reports about statements by Serbian Government officials, even including a minister, about incitement to violence. That has to cease."

According to CNN, Richard Holbrooke stated that "The fact that (independence has) not happened as peacefully as people had hoped is the direct result of the incitement to violence by extremist elements in Belgrade, implicitly and privately supported by the Russians." Zalmay Khalilzad, U.S. Ambassador to the United Nations, expressed outrage at the "mob attack,” and plans to introduce a UN resolution condemning the attack.

This whole episode puts the shear absurdity, not to say illegality, of US foreign policy into perspective. The US has just led the process of encouraging Kosovo to independence, leading to the loss of some 17% of Serbian territory which plays a critical role in Serbian culture and history. And now the US is introducing a resolution condemning an attack on its Embassy, in which no US personnel were killed, and no permanent damage incurred?

How much more hypocritical will our foreign policy become? I’m not disputing the sovereign nature of the US Embassy and the inviolability of diplomatic representation. But to condemn the Serbs-who have just lost a huge chunk of territory and culture-and preach about international law at this point is ludicrous, not just in light of what is happening in Kosovo, but in light of the Iraq invasion, Guantanamo Bay, warrantless wiretapping, waterboarding, and extraordinary rendition.

Let’s look quickly at the legal situation in Kosovo. On 10 June 1999, the United Nations Security Council adopted Resolution 1244, which calls for the cessation of violence, the withdrawal of Yugoslav armed forces, the disarmament of the Kosovo Liberation Army, and the establishment of a civilian and security force (UNMIK) designed to stabilise the territory. The United States is a signatory of this Resolution.

In its preamble, Resolution 1244 states:

Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2,

In Annex I, it states that:

A political process towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of the KLA;

This interim political framework has been accomplished: Kosovo has had a functioning self-government for a number of years now. There is no reference in Resolution 1244 for the independence of Kosovo. This is rightly seen as a unilateral movement, and the diplomatic recognition of Kosovo by the United States can be seen as the territorial violation, absent the political recognition of an independent Kosovo by the Republic of Serbia, which is the legal successor to the Federal Republic of Yugoslavia.

Let’s look at the Helsinki Final Act, of which the United States is also a signatory. Articles II and III are particularly interesting:

III. Inviolability of frontiers
The participating States regard as inviolable all one another's frontiers as well as the frontiers of all States in Europe and therefore they will refrain now and in the future from assaulting these frontiers.

Accordingly, they will also refrain from any demand for, or act of, seizure and usurpation of part or all of the territory of any participating State.

IV. Territorial Integrity of States
The participating States will respect the territorial integrity of each of the participating States. Accordingly, they will refrain from any action inconsistent with the purposes and principles of the Charter of the United Nations against the territorial integrity, political independence or the unity of any participating State, and in particular from any such action constituting a threat or use of force.

The participating States will likewise refrain from making each other's territory the object of military occupation or other direct or indirect measures of force in contravention of international law, or the object of acquisition by means of such measures or the threat of them. No such occupation or acquisition will be recognized as legal.

Judging from both documents, the US is in clear violation of both the Helsinki Act and UN Resolution 1244.

There is no legal basis for diplomatically recognising an independent Kosovo, which according to law has the status of an autonomous province in the Republic of Serbia. By proceeding along this path, i.e. diplomatic recognition without the prior recognition and agreement of Serbia, the United States has lost its status as an impartial partner, and is contravening the very basis of international law it is now claiming for its own benefit.

So why is this a problem? Because it establishes a precedent, no matter how much Condoleeza Rice or Marti Ahtisaari claim otherwise. Marti Ahtisaari’s Report of the Special Envoy of the Secretary-General on Kosovo’s Future Status states, among others:

15. Kosovo is a unique case that demands a unique solution. It does not create a precedent for other unresolved conflicts. In unanimously adopting resolution 1244 (1999), the Security Council responded to Milosevic’s actions in Kosovo by denying Serbia a role in its governance, placing Kosovo under temporary United Nations administration and envisaging a political process designed to determine Kosovo’s future. The combination of these factors makes Kosovo’s circumstances extraordinary.

This is absurd. Any number of other “frozen conflict” administrations will now step up, seeking “independence”: The Republica Srpska part of Bosnia-Herzegovina; the region of Trans-Dniester; Ossetia and Abkhazia; the “Turkish Republic of Northern Cyprus” (that part of Cyprus under military occupation by Turkey since 1974).

What the United States – and the United Nations – have done is open Pandora’s box, stating that any region which has an ethnic majority and has suffered civil violence has the right to declare independence. The United States may not really care about the examples above (where it has not vital interests), but it Kurdistan separates from Iraq, or the Kurdish regions of Turkey press for independence, it would no doubt be firmly against independence.

As a result of this issue, but also as a result of other UN initiatives, such as the Annan Plan for the resolution of the Turkish occupation of Cyprus, it is entirely unclear to me why the UN is so intent on violating the very principles enshrined in its Charter as well as Resolution 1244. UN efforts at conflict resolution are unfortunately becoming not worth the paper they are printed on.

The recognition of an independent Kosovo is a blunder of epic proportions. It raises the spectre of further brinkmanship over ethnic secession: there are any number of dormant or active ethnic conflicts in the Balkans. Over 30% of the population of FYR Macedonia is ethnic Albanian, and the spectre of a “Greater Albania” has just gained much more weight following the Kosovo secession. Turkey has intrigued about a “Turkish minority” in Greece for years, though the Treaty of Lausanne has clearly established that this is a Muslim minority. Kosovo’s independence establishes that armed conflict followed by UN intervention is a viable means of attaining ethnic secession.

As I have already stated, I am not against independence of Kosovo in principle. However, there are better, fairer ways of handling this, which do not contravene international law.

One such way would have been to transfer Kosovo’s trusteeship from the United Nations to the European Union, and promising supervised independence only once the Republic of Serbia entered the EU. This would have been a longer-term process which would have involved the equivalent adoption of European law, the Acquis communautaire, in the two regions. Under this scenario, both sides would have had to comply with the Acquis, following the standard EU accession process.

Another alternative would have been to continue the UN Trusteeship for a longer period of time – perhaps for 15 or 20 years – until a newer generation of leaders would have been able to resolve the situation. Contrary to the Ahtisaari Report, there is no pressing requirement for independence on the part of the international community, only on the part of certain elements in Kosovo.

We would be wise to avoid the oversimplification apparent in US foreign policy. Idealism is good, but to claim “independence and democracy” as a panacea for all raises vast political problems, and can never be applied uniformly. If this were official US policy, then we would have to recognise Hamas (not condemn it); condemn Hosni Mubarak (not supply him with weapons) and withdraw support from Pervez Musharraf.

The diplomatic recognition of Kosovo sets a dangerous precedent. It violates general international law as well as specific treaties entered into by the United States, and so obviously fans the flames of ethnic secession and political meddling in the Balkans and farther afield.