by H. L. de Silva
"The fathers have eaten sour grapes and the children’s teeth are set on edge "
(A Jewish Proverb in the Book of Jeremiah, (Jeremiah31. 29)
The hope and expectation that the UN Charter would provide an effective answer to the use of aggressive force and unlawful interventions in the internal affairs of sovereign states, and be an acceptable instrument in the management of international conflicts, was not realized and may be described, in the words of Antonio Cassese as "the end of a magnificent illusion". Likewise the hope that the end of the Cold War would usher in a new world order has ended in world-wide disappointment. Instead the conviction has grown that law and justice in international society is irreversibly vitiated by hegemonic power. It would appear that the words of the Athenians addressing the leader of Melos (as reported by Thucydides in his history of the Peloponnesian War) – "the powerful do what they will and the weak accept what they must" remain as true to-day as they were centuries ago.
The practical workings of the R2P doctrine of intervention ( as formulated later) as seen in the Kosovo conflict and the extension of its scope even beyond the original limits endorsed by the General Assembly in its Outcome Document (2006), portends an aggravation and exacerbation of the problem in the coming years of this century.
To appreciate the true nature of this unilateral declaration of independence of Kosovo a brief review of the history of the conflict and a chronology of events is helpful. Kosovo, though claimed by both Serbs and Albanian Kosovars as their respective homelands from centuries past, was at the relevant time, incontestably, an integral part of the territory of Serbia (a constituent unit of the Federal Republic of Yugoslavia) The Serbs who had ruled the area from about the 6th Century lost control of it since their defeat in 1389 by the Ottoman Turks in "the Field of the Blackbirds" (Polije) where as in cities like Pec there remain the sacred monuments of the Serbian Orthodox Church and became the spiritual heartland of Serbia during the Nemanjic dynasty. These incontrovertible facts of history attest to their settled conviction that Kosovo is part of the indivisible territory of Serbia where they fought and died defending their faith against the invading Turks in those ancient days.
On the other hand, under the Ottomon Empire, the Albanian Kosovos, who claim to be descendents of the Illyrians who occupied this area in the 4th and 5th Century, adopted the Islamic faith and remained under their domination for nearly four and a half centuries, until the end of the Balkan Wars and the recovery of this territory by the Serbs in 1912. At the end of World War I Kosovo was confirmed to be part of the territory of Serbia with the defeat of the Turks in the war. It remained so with the establishment of the Federal Socialist Republic of Yugoslavia at the end of World War II (1945) and despite some convulsions that occurred during the breakup of the Yugoslav Federation in the nineties, it has remained a Province of Serbia in the south along with Vojvodina – another province of Serbia in the north. The province enjoyed a substantial degree of autonomy during the Tito regime and the Albanian Kosovars constituted ninety percent majority of the population in Kosovo.
With the grant of autonomy the Kosovars thirsting for independence, followed a policy of discrimination against the minority Serbs. With the election of Milosevic as President of Serbia in 1989 and the rising tide of Serb nationalism, the Albanian Kosovars in turn faced discrimination and even persecution. In 1997 with the formation of the Kosovo Liberation Army the Albanian separatist struggle gained momentum. The KLA’s attacks on the Serbs in Kosova is said to have led to it being designated a terrorist group by the United States, Serbia and others. It is estimated that 10,000 people were killed by the KLA’s military campaign. Milosevic responded by seeking to change the demography of the Province by the notorious method of ethnic cleansing that had already been practised in other parts of the former Yugoslavia. 1998 saw a full-scale civil war between the Serbs and the Albanian Kosovars. This escalation of violence led to massive waves of refugees leaving for Serbia and Albania respectively and in March 1999 NATO launched an aerial bombing campaign against Yugoslavia to stop the bloodshed and the exodus. After this sustained campaign of bombing lasting 78 days, Belgrade capitulated when it became clear that Russia was not willing to come to the aid of the Serbs and withdrew its troops from Kosovo.
The Security Council adopted resolution SC1244 in June 1999 in terms of which a political solution to the Kosovo crisis was to provide for the establishment of an interim administration for Kosovo, taking full account of the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, and other countries of the region and the de-militarization of the K.L.A. There was to be deployed in Kosovo under United Nations auspex’s effective international civil and security presences acting under Chapter VII of the Charter. It is significant that these measures in Kosovo, followed a report by Ms. Louise Arbour, the UN High Commissioner of Human Rights that incorrectly reported the genocide of 200,000 civilians in Kosovo which warranted UN intervention. This figure estimated by Ms. Arbour was hopelessly contradicted by the discovery of only 5000 bodies in Kosovo at Milosovice’s subsequent trial at The Hague.
Despite these measures conditions remained unstable and worsened in March 2004, when there were concerted Kosovo-wide riots by Albanian Kosovars leaving many dead and hundreds injured despite the UN Security presence. Thousands of Serbs fled their homes in Kosovo as hundreds of houses and dozens of Orthodox churches were set on fire.In 2005 Kosovo Prime Minister Ramush Haradinage resigned from office to face war crimes charges at The Hague. The UN launched direct talks on the status of Kosovo between Belgrade and the Kosovo authorities then established in office, produced no result. Meanwhile, the Finnish Prime Minister Martti Ahtissari who had been invited to mediate, proposed in 2007 supervised independence for Kosovo, which was rejected by both Serbia and Russia, which set the stage for the unilateral declaration of Independence of Kosovo a move encouraged by the US and several States of the European Union. The declaration was made on 18th February 2008. As was expected the United States, the UK, France and Germany and some others of the European Union have recognized the new State and its secession from the Federal Republic of Yugoslavia (now consisting of Serbia and Montenegro.)
These events have the most for-reaching consequences as far as the sovereignty and the territorial integrity of multi-ethnic states and the efficacy of the prohibitions against aggression and interference in the internal affairs of States in International law and under the UN Charter.
The critical turning point in these events that led to the unilateral declaration of Independence with Western support was the intensive NATO bombing of Kosovo and vital installations in of Serbia for 78 days, which led to the withdrawal of the Serb armed forces and the entry of NATO ground forces into Kosovo, which was to all intents and purposes an invasion of the territory and an act of aggression against the F.R.Y.
NATO bombing and Entry of Armed Forces.
The first and foremost among the purposes of the United Nations, as set out in the Charter, was to maintain international peace and security and to that end: "To take effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression and to bring about by peaceful means and in conformity with the principles of justice and international law, the settlement of disputes". The positive prohibition and injunction against the use of force was contained in Article 2 para 4 which declared that all Members shall refrain in their international relations from the threat or use of force against the territorial integrity of political independence of any state.
While the acts of the Serbian armed forces in Kosovo in seeking to suppress the rebellion and the attacks of the KLA was not "aggression" as contemplated in Article 2.4 as it did not involve force against a foreign State, being the suppression of an internal rebellion, the bombardment carried out by NATO were clearly a violation of this prohibition, because it did not fall within the exception created by Article 2.7, which permitted the application of enforcement measures under Chapter VII. Under Article 42 it was only the Security Council that was empowered to take such action by air, sea or land forces to maintain or restore international peace and security, assuming that the internal conflict in Kosovo province of Serbia fell within the meaning of a breach of "international peace" and not merely violations of internal peace within Serbia.
Although NATO fell within the category of a regional arrangement of states for dealing with matters relating to the maintenance of international peace and security, Article 53 provided that no enforcement action was to be taken by such an organization without the authorization of the Security Council. No such authorization by the Security Council was either sought or granted to NATO before it launched the attacks on Kosovo and Serbia and accordingly they were unlawful.
The General Assembly by its Resolution 3314 (xxix) (1974) in defining aggression, considered it "the most serious and dangerous form of the illegal use of force" It defined aggression as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State (The definition of "State" was stated to include the concept of a "group of States", so the definition of state applied to NATO as well as the prohibition) Among the acts that fell within the definition was invasion or attack by the armed forces of a State or any military occupation of the territory of another State and bombardment of the territory of another State.
Article 5 of the General Assembly Resolution stated in unequivocal terms:
"No consideration of whatever nature, whether political, economic, military or otherwise may serve as a justification for aggression" It went on to state that a war of aggression". is a crime against international peace and gives rise to international responsibility. What is of special significance here is that the Resolution also states no territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.
This has a bearing on the recognition of the new state by the international community despite this flagrant illegality.
Violation of Territorial Integrity
This Resolution also reaffirmed the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity. The acts of force, coercion and aggression of NATO in their attacks and occupation of the territory of the Federal Republic of Yugoslavia was also a clear violation of Article 2 para 4 of the UN Charter which states that: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State……." Kosovo was only a province of Serbia which was a constituent unit of the Federal Republic of Yugoslavia and the acts of aggression of NATO was an infringement of the territorial integrity of the Federal Republic of Yugoslavia and was also an infringement of the right of self-determination of the People of Yugoslavia
Violation of Sovereignty and Unlawful Intervention
The violation of Yugoslavia’s territorial integrity was ipso facto a violation of its sovereignty, recognized in the principle of the sovereign equality of all UN Members. Accordingly para 7 of article 2 of the Charter prohibited the United Nations and its Members from intervening in matters which are essentially within the domestic jurisdiction, unless it involved the application of enforcement measures under Chapter VII which required as a prerequisite the decision of the Security Council in regard to the measures to be taken in conformity with Articles 41 and 42 or 53.
It is clear that, apart from the fact that no such authorization was granted by the Security Council, the NATO states acted in defiance and in clear violation of Security Council Resolution (S/RES/1244 – 10th June 1999) which reaffirmed the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia as set out in the Helsinki Final Act (1975) and Annex 2 of the Resolution, and authorized Member States and relevant international organizations to establish the international security presence in Kosovo only as set out in Annex 2. which in point 8: provided for a political process towards the establishment of an interim political framework providing for substantial self government for Kosovo taking into account…… the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia. It is clear therefore that any political arrangement which envisaged a unilateral secession was excluded by the terms of the Security Council Resolution and was unlawful.
By the Final Act of the Conference on Security and Co-operation in Europe (the Helsinki Act of 1975) the participating Countries which included the NATO countries agreed to "respect each other’s sovereign equality and individuality as well as all the rights inherent in and encompassed by its sovereignty, including in particular the right of every State to juridical equality, to territorial integrity and to freedom and independence. They were also required to respect each other’s right freely to choose and develop its political, social economic and cultural systems as well as its right to determine its laws and regulations (i.e. the right of self-determination). The Helsinki Act also went on to state: "hey consider that their frontiers can be changed, in accordance with international law, by peaceful means and by agreement" This clearly precluded unilateral secession by the use of force, involving a change of the international boundary.
It needs hardly be stressed that the deliberate and blatant violations of the UN Charter and principles of International Law shown above have given rise to serious misgivings in regard to the credibility of the United Nations and stability of the International Legal order which unless these anomalies are set right in accordance with the prevalent International law, will result in anarchy in the international legal order. It is regrettable that the US and the NATO powers embarked upon this wholly illegal course of action, despite the fact that the Security Council Resolution ( 1244 of June 1999) confirmed the willingness of Yugoslavia to adopt a political solution to the Kosovo crisis which involved a political process towards the establishment of an interim political framework agreement providing for substantial self-government for Kosovo and the principles of sovereignty and territorial integrity of Yugoslavia, which precluded a unilateral declaration of independence by Kosovo
In the face of these flagrant violations of international law and the UN Charter it is incomprehensible how some commentators on these events can claim that despite the illegality, the actions of NATO were nevertheless legitimate. Such an assessment seeks to deny the paramountcy of legal prohibitions underpinned by ethical and moral values, and. negates the very foundations of the legal order. Legitimacy requires not only conformity with the legal order but also justification on moral and ethical grounds of such political considerations that only strengthen the stability of the international legal order and do not undermine its very foundations. Hence to admit its illegality and yet affirm its legitimacy is a contradiction in terms where fundamental rules of law are involved and not mere peripheral rules..
It is not within the scope of this article to discuss the significance of the Kosovo secession for us in Sri Lanka, despite the vain hopes and expectations of the LTTE leader and the exaggerated fears and apprehensions of some political analysts who consider it a grim prospect and call for concessions to be made. The consequences of regarding it as a precedent for other secessions by dissatisfied ethnic groups are such that they involve a shaking of the tectonic foundations of International Law and an unraveling of the fundamental basis of legal order. As the International Law scholar Malcolm Shaw observes: "self-determination cannot be utilized as a legal tool for the dismantling of sovereign states….self-determination does not provide groups with the legal right to secede from existing independent States and create a new State". The former US President Bill Clinton in a speech made in Ottawa on the Canadian Separatist Movement observed:
If we are to divide all the countries on ethnic lines, we would end up with something like 8000 political entities. This would clearly be bedlam which is unexpected. In this day and age where economic globalization calls for bigger and more effective political units, anything which takes not one step but ten steps backwards and breaks the world on a virtually tribal basis would be a retrograde step and an unacceptable situation"
Considering such views the recognition of Kosovo as an independent state by the U.S. and the major states of the European Union can only be explained on grounds of real politique.