James Bissett // THE LEGAL AND POLITICAL CONSEQUENCES OF KOSOVO INDEPENDENCE

http://www.deltax.net/bissett/a-consequences1.htm

THE LEGAL AND POLITICAL CONSEQUENCES OF KOSOVO INDEPENDENCE (part 1)

1. INTRODUCTION
Last month I appeared as a witness at the International Criminal Tribunal
for the Former Yugoslavia. During the questioning by the defendant, former
President Slobodan Milosevic, he asked me to quote excerpts from an article
I had written in 2000 entitled, New Diplomacy, Old Agenda. One of the
excerpts read as follows:

"The U.S. led attack on Yugoslavia was designed to improve President
Clinton's public image and restore credibility to NATO, whose existence
since the end of the cold war was in jeopardy. This was the real agenda of
the NATO war. In terms of Balkan history it is an old agenda. Traditionally
western intervention in
the Balkans has proven to be disastrous. From the Congress of Berlin to both
world wars, the western powers have intervened in the Balkans for their own
selfish policy objectives. These aims have had little relevance to the
issues affecting the peoples of the Balkan countries. What was true of the
past has proven true again in Kosovo."



The events that have taken place in Kosovo since I wrote that article have
only served to reinforce the truth of what was then written. Western policy
since the end of the illegal bombing of Yugoslavia has been a total failure.
The massive ethnic cleansing of the non-Albanian population, the reign of
terror against those few Serbs who have remained, the rampant burning and
blasting of Christian churches, the refusal to disarm the Kosovo Liberation
Army, the acceptance of widespread drug and human trafficking in the
so-called UN protectorate stand as evidence against the NATO and United
Nations authorities. These are hard facts. They stand as testimony to failure.



Unfortunately, the Serbian tragedy is not yet over. Sometime this year a
decision will be announced about Kosovo independence. I say announced
because there is some evidence suggesting the decision has already been made
to tear away that integral part of Serbia and to grant Kosovo independent
status. The Economist magazine of 18- 24 February 2006 reported that John
Sawers the political director of the British Foreign Office told a group of
Serbs in Kosovo earlier in the month that the Contact Group had already
decided on independence for Kosovo. Since the talks between Serbia and
representatives of the Kosovo Albanians are being undertaken under the
auspices of the Contact Group Mr. Sawers words are not to be taken lightly



There are other indications that independence is already a foregone
conclusion. The Contact Group Guiding Principles announced in November 2005
stated, among other things, that there could be no return of Kosovo to the
pre-1999 situation. This is an ambiguous statement but since prior to 1999
Kosovo was an integral part of Serbia this guiding principle could be
interpreted to mean that Kosovo will no longer remain part of Serbia. Other
remarks by senior United States officials have made it clear that the option
of independence for Kosovo is open for discussion. These are ominous signals
that the guarantees set out in UN Resolution 1244 reaffirming the
sovereignty and territorial integrity of Yugoslavia as set out in the
Helsinki Final Act may be ignored or conveniently overlooked as have other
parts of the resolution.



The influential International Crisis Group has not been hesitant in setting
out its views on the issue of independence. It has made its recommendations
abundantly clear in a report dated February 17, 2006 entitled Kosovo: The
Challenge of Transition. That report recommends that, "The international
community and in particular the UN Special Envoy charged with resolving the
status process, Martii Ahtisaari, must accordingly prepare for the
possibility of imposing an independence package for Kosovo, however
diplomatically painful that may be in the short term" There is no concern
expressed by the Contact Group or UN officials that because Martii Ahtisaari
is a prominent member of the ICG that this report would appear to place him
in a conflict of interest position. There is further reason to suspect his
impartiality as a mediator since Der Spiegel magazine has reported that Mr.
Ahtisaari has said that Kosovo is headed for independence.

There may least be some comfort that the ICG seems to have dropped the idea
it once advocated that the discussions include the possibility of adjusting
Kosovo's northern border to include the Presevo valley. However, if the ICG
has dropped the idea of incorporating part of southern Serbia into a new and
independent state of Kosovo the Albanians in southern Serbia have not. Three
ethnic Albanian municipalities in southern Serbia have passed resolutions
calling for political and territorial autonomy and the withdrawal of Serbian
security forces from the area.

The demands of the Albanians in southern Serbia underline the dangers
inherent in the violation of the territorial integrity of states even if it
is carried out under the aegis of supposedly responsible international
agencies like the Contact Group and is sanctioned by the European Union.
Should a decision be taken to grant independence to Kosovo a precedent will
have been established that will pose a serious threat to the very structure
of world peace and security. The stakes here are high and any decision on
Kosovo independence will have implications that go far beyond the
geographical confines of the Balkans



2. TERRITORIAL INTEGRITY
The territorial integrity of states is an old principle that is generally
acknowledged to have been firmly established by the Peace of Westphalia in
1648 which declared that outside interference in a state's internal affair
was illegitimate. Through the years the principle of territorial integrity
has not diminished. It is still considered one of the most basic principles
of international law and continues to be a major instrument for the
prevention of armed conflict between states.



Article 2[4] of the United Nations Charter includes territorial integrity as
one of the principles that prohibits the threat or use of force in the
resolution of international disputes. Territorial integrity is included in
the Declaration of Principles of International Law concerning friendly
relations among states. The United Nations Charter regards it as one of the
paramount elements included in the concept of sovereign equality.



The Helsinki Final Act of 1975 reinforced the principle of territorial
integrity and went further by including a section on the inviolability of
frontiers. It is hoped that members of the Contact Group and the UN Special
Envoy are familiar with the wording of these two sections of the Act. They
read as follows:



SECTION III: INVIOABILITY 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 will refrain now
and in 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.

SECTION 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 regarded as legal.

 These are fundamental principles. They form an integral part of the
framework of international law. They are designed to be a guarantee of
international security and mutual respect among nations. They are to have
universal application and cannot be put aside because of special
circumstances or when they prove embarrassing or inconvenient.
Their message is simple and clear. Borders can only be changed by agreement
between states.

THE LEGAL AND POLITICAL CONSEQUENCES OF KOSOVO INDEPENDENCE (part 2)

3. PRESSURE ON SERBIA
Unfortunately we have seen in the case of Kosovo in 1999 and more recently
with the invasion of Iraq that the countries of NATO and the United States
are prepared to violate international law when they consider it in their
interests to do so. Furthermore the NATO countries are able to use their
economic and political power as leverage to force smaller countries to
comply with their demands. The promise of membership in the new Europe can
be an offer difficult to refuse even when acceptance means a humiliating
loss of self respect if not the loss of territory as well.

In June 2005 the European Council set out the criteria to be met by any
decision on the final status for Kosovo. The solution according to the
Council had to be fully compatible with European values and norms, comply
with international legal instruments and obligations and the United Nations
Charter and contribute to realizing the European prospects of Kosovo and the
region. However the Council also stressed that any agreement must ensure
that Kosovo does not return to the pre-March, 1999 situation.

What the European Council seems to be saying is that any decision about
Kosovo must be legal but since it can't be legal without Serbia's consent
the Council holds out the possibility of admittance to the European
Community in exchange. If Serbia gives up Kosovo its reward will be eventual
acceptance into the European Community. The European Council describes this
as a satisfactory solution. Others might describe it as blackmail. In any
event what is clear is that both the United States and the European
Community want a solution to what they interpret as an intractable and
festering problem in the heart of Europe. The Europeans may be fussier about
the legalities than are the Americans but the final outcome desired is the same

If Serbia is willing to accept this deal then there are the usual promises
that the new Kosovo would be multi-ethnic, would respect human and minority
rights, would guarantee the safe return of the evicted population, that the
Christian religious sites would be safeguarded and that crime, corruption
and terror would be eliminated. All of the guarantees sound good. The
problem is all of them have been promised before and expressed in United
Nations resolution 1244. We know how faithfully the guarantees in that
resolution have been enforced in Kosovo during the past seven years.

Casting a dark and foreboding shadow over the Kosovo talks is the reality
that if the incentive of joining the new Europe does not work and Serbia
refuses to consent to the loss of its Kosovo territory then punishment
rather than incentives can be used. Serbia has already had its grim share of
what this can entail. Loss of IMF and World Bank loans, discouragement of
Western investment, ostracism from international institutions, threats from
the International Criminal Tribunal of more indictments, manipulation of
elections and a host of other penalties designed to force conformity to the
will of the United States led NATO powers.

 Nevertheless it would be a mistake for the United States and the Europeans
to assume that the decision about Kosovo independence will solve all the
problems in the Balkans. Kosovo independence is a Pandora's Box and once
opened there is every likelihood of further Albanian demands in the region.
Furthermore as the United Nations special envoy, Kai Eide has reported,
Kosovo is simply not ready for independence. Quite apart from its
questionable economic viability, its record of ethnic cleansing, violence
and intolerance of minorities should disqualify it from becoming an
independent country. Wide spread crime and corruption and its dominance of
the European drug trade give sufficient evidence by any standard that it is
not ready to join the ranks of independent states.

 A further mistake is to believe that a decision to grant Kosovo
independence will not become a precedent or that it will not be seen as an
example for others who might be striving for self determination. There have
been statements from US officials suggesting that Kosovo is unique and
therefore cannot be used as a precedent. This is wishful thinking and it is
dangerous thinking. A decision to grant Kosovo independence will have far
reaching implications. It will serve as an example and encouragement to
other independent movements around the world. It could become a symbol and
template for secessionists everywhere.

 4. A PRECEDENT FOR RUSSIA ?
Not withstanding the attempts by US officials to pretend that independence
for Kosovo would not be a precedent, the President of Russia, Vladimir
Putin, on January 30, 2006 declared that the decision on Kosovo if it is to
be considered legal should be of a "universal nature" and applicable to post
ÄÅ¼Ë Soviet territory. The Russian President based his statement on the fact
that, UN Resolution 1244 has affirmed that Kosovo is an integral part of
Serbia. He added that, "Our starting point is that United Nations Security
Council's decisions are not of a decorative nature, do not depend on the
political circumstances, but are adopted in order to be fulfilled."

President Putin was referring to the unrecognized regions of the former
Soviet Union that desire independence: Abkhasia that broke away from Georgia
in 1992 and successfully defeated Georgian military attempts to prevent
secession. It has not been recognized as an independent state. South Ossetia
declared its independence from Georgia in 1991 following armed conflict with
Georgian troops but its independence has not been recognized. Transnistria
declared unilateral independence from Moldova in 1991 and with the
assistance of Russian and Ukrainian troops resisted attempts by Moldova to
prevent secession. Its independence has not been recognized.

In response to President Putin's intervention in the Kosovo process the U.S.
Deputy Secretary of State for European Affairs, Rosemary di Carlo has stated
that the Kosovo situation and the region itself is a unique phenomenon and
that the Kosovo model would not apply to the unrecognized regions of the
former Soviet Union. She also pointed out there were no UN resolutions
relating to them. What she did not say of course was that the UN resolution
relating to Kosovo explicitly reaffirmed it as part of Serbia.

 It is difficult to say if President Putin's remarks are a warning that
Russia, as a member of the Contact Group, will insist that the criteria and
standards used to decide on Kosovo independence will have universal
application and especially to the unrecognized regions of the former Soviet
Union. If it is a warning is it to be taken seriously? Or, is it simply a
move designed to be used by Russia as a future bargaining chip in
negotiations with the Western powers? Previous experience has shown it is
unlikely Russia will risk openly defying the United States and Europe over
the issue of Kosovo independence. At any rate this remains to be seen.
Whatever the motives, however, President Putin's intervention serves to
highlight the reality that, despite protests to the contrary, a decision to
grant independence to Kosovo will stand as a precedent.

 5. A DANGEROUS PRECEDENT
There are currently 191 member states of the United Nations but an estimated
five thousand ethnic groups scattered across the globe. Many of these ethnic
groups are desirous of attaining statehood and becoming members of the
United Nations. Many have much stronger claims for independence than does
Kosovo. The Kurds for example number close to thirty million people and have
maintained a distinctive culture for three thousand years despite being
dispersed in Turkey, Iraq, Iran and Syria. They were promised a separate
state by the allies after world war one but this promise was thwarted by the
Turkish dominance of the region under Kemal Ataturk. The leaders of the
Kurdish independence movement will not overlook what happens in Kosovo. The
American insistence on maintaining the territorial integrity of Iraq at the
expense of the Kurdish wish for independence will ring hollow to the Kurds
of north eastern Iraq.

 Taiwan with its prosperous economy and high standard of living has enjoyed
de facto independence since being expelled from the United Nations in 1971
and yet it has not been recognized by the international community as an
independent state. Tibet, Chechnya, Nagorno- Karabakh , Tamil Eelam,
Kashmir, the Philippines, Thailand, - the list is a long one. In Western
Europe itself there are serious demands for independence from Basques,
Corsicans, and Montenegrins.

 THE LEGAL AND POLITICAL CONSEQUENCES OF KOSOVO INDEPENDENCE (part 3)

In the case of Montenegro it shares the same language, religion, history,
culture and ethnicity as the Serbs. There is not the slightest reason why
this tiny country of 600,000 inhabitants whose leader is alleged to be
involved in criminal activities should be granted independence apart from
the fact the President once enjoyed the favor of the United States.

 Yet according to a report in the influential Herald Tribune the European
Community is suggesting that Montenegro can secede if fifty percent of the
eligible voters cast their ballots and if fifty five percent of those choose
independence. In effect this means that Montenegro can attain independence
with less than 30 percent of the voters supporting it. Can anyone imagine
that Javier Solana the EC foreign Minister would advocate a similar deal
being offered the Basque separatists?

There are over three million Hungarians living outside of Hungary in the
neighboring countries of Romania, Slovakia, Serbia and Ukraine. Many of
these would like once again be governed by Hungary. Already there has been a
resurgence of Hungarian nationalism in the Serbian province of Vojvodina.
This is not surprising, if Kosovo warrants independence why not Vojvodina?
The Serbs and Croats in Bosnia - Herzegovina despite every encouragement
from Paddy Ashdown the UN High Representative are not yet resolved to the
idea that this artificially created Protectorate is viable. Many among them
would favor joining their fellow countrymen in Serbia or Croatia and
independence for Kosovo will add strength to these desires.

Among the conditions laid down by the Contact Group and supported by the
European Council for any decision about Kosovo is that there is to be no
change in current borders, no union with another country or part of another
country and that Kosovo must not constitute a military threat to its
neighbors. These conditions are of course as a result of legitimate concerns
that an independent Kosovo might well be the first step in the realization
of the dream of a greater Albania in the Balkans. No change in borders means
no joining up with Albania and no linking up with the Albanians in southern
Serbia or Macedonia. There are solid reasons for theses concerns. The
military incursions of the KLA into southern Serbia and Macedonia in 2001
provided strong evidence that an independent Kosovo could well lead to
irredentist ideas among the Albanian populations in the Balkan states.

 Conditions laid down during talks on the status of Kosovo are one thing but
the enforcement of such conditions after a decision has been made is
another. Under the watch full eyes of thousands of NATO and United Nations
troops the Albanians in Kosovo have since the withdrawal of Serbian forces
acted in a barbarous fashion towards the non-Albanian population, have
carried on with drug smuggling and other criminal activities and have
conducted military operations across their borders. Is there any doubt that
should Kosovo achieve independence these activities will be even more
difficult to control? The borders between Albania and Macedonia already, in
effect, are open borders and are likely to become invisible after independence.

Another serious implication of an independent Kosovo relates to the
possibility that the new entity could become a haven for Islamist
extremists. There have already been concerns expressed by Western security
experts about the infiltration of Islamist extremists in Bosnia many of whom
remained there after the end of hostilities. There have also been reports of
mujahideen fighters supporting the KLA against Serbian security forces and
that al Qaeda has established bases in Kosovo and Albania. Whatever the
truth of these reports it is reasonable to suppose that an independent
Kosovo would be ideally suitable for the establishment of al Qaeda
operations and a fertile ground for Islamist extremism.

 The United States and the EC have expressed concern about the danger to
international security caused by the existence of so called "failed states."
Failed states are defined as those countries whose governments have weakened
to the point where they that they can no longer provide adequate public
services, physical security or economic livelihood to their inhabitants.
They become attractive to terrorist organizations as safe havens and as
staging grounds for attacks on other targets.

 The United States National Security Strategy emphasizes the problem by
declaring: "America is now threatened less by conquering states than we are
by failing ones, poverty, weak institutions and corruption can make weak
states vulnerable to terrorist net works." If, as it seems evident, Kosovo
meets all of the characteristics of a failed state the determined rush of
the United States and the European Community to grant it independence will
prove to be a grave policy error and will inevitably have a negative effect
on Balkan stability.

7. CONCLUSION
After the end of the cold war and the emergence of the United States as the
most powerful military force the world has ever known there was a brief
period, as the twentieth century was drawing to an end, to hope that the
world would experience a "Pax Americana." A benevolent and democratic
America in full support of the ideals expressed in the United Nations
Charter would ensure peace and order throughout the world. The threat of
global extinction and the horrors of widespread bloodshed and violence would
be ended.

 This dream was shattered by the United States led bombing of Yugoslavia in
the spring of 1999 which was done in violation of the UN Charter and
contrary to international law Despite trying to justify the bombing as a
humanitarian intervention to stop alleged genocide and ethnic cleansing in
Kosovo it was apparent the real reason was to demonstrate the value of NATO
as an organization and of continuing United States dominance in Europe. It
was a critical turning point because it signaled the willingness of the
United States to use military force to resolve international disputes and to
intervene wherever and whenever it so desired.

 Subsequent events have shown that the United States has not abandoned this
policy. The invasion of Iraq without United Nations authority is the most
striking example of the US determination to act unilaterally. There will
always be an attempt to gain support for these actions either through the
use of NATO or by persuading the European Community or the newly emerging
states of Central and Eastern Europe to get on side. The reality is,
however, that the most powerful nation in the world is not willing to abide
by the norms of international law or to conform to the principles laid down
by the United Nations Charter.

 United States policy in the Balkans has been dysfunctional since March 1992
when their Ambassador, Warren Zimmerman, persuaded Izetbegovic the Islamist
leader of the Bosnian Muslims to withdraw his signature to the Lisbon
Agreement. This decision which led to US acceptance of the results of an
illegal referendum and recognition of the first Muslim state in Europe
triggered civil war in Bosnia and led directly to the death and destruction
that followed. In the following years US decisions have proven to be equally
disastrous for the region.
The United States subversion of the Vance-Owen plan and the following
Vance-Stoltenberg agreement prolonged the war in Bosnia unnecessarily. The
violation of the United Nations arms embargo and the decision to permit
several thousand mujihadeen fighters into Bosnia and to provide them with
modern military equipment was also a decision bound to have "blow back"
implications damaging not only to the region but also to the ongoing US war
against terrorism.

The decision of the United States government to support the cause of the
terrorist KLA in its armed rebellion to secede from Yugoslavia is another
example of US policy making gone wrong. There is evidence that the KLA
military incursions into southern Serbia and later in Macedonia were backed
by American agents. Their current policy supporting independence for Kosovo
is but another chapter in an unfolding series of strategic errors. More
seriously it reveals an indifference to the concept of sovereignty and of
respect for the rule of law that is not in keeping with the principles laid
down by the founding fathers of that great nation.

United States policy in the Balkans has been characterized by cynicism,
duplicity and short term tactical gain. By backing Islamist aims in the
region and supporting terrorist groups in Kosovo there might be the
immediate advantage of establishing a large military base in Kosovo or
appeasing further Albanian demands by advocating independence for Kosovo but
in the long term it will backfire.

 For centuries past Serbia, as one of the largest country in the Balkans
and situated on the strategically important crossroads between Europe and
the Near-East, was proud of its well earned reputation as the "guardian of
the gate." A democratic Serbia can be a powerful ally to democratic and free
countries everywhere. In these perilous days when even the United States
with all of its awesome military might can be terribly damaged by a handful
of fanatical Islamist terrorists it would seem only prudent and in the
national interest of Americans and of Europeans to reverse their ongoing
policy of humiliating this key Balkan nation and find a solution to the
Kosovo problem that falls short of independence.
             ****
Mr. James Bissett is former Canadian Ambassador to Yugoslavia, Bulgaria and
Albania and chairman of the Lord Byron Foundation for Balkan Studies. He can
be reached by e-mail: bissett@deltax.net