|Kosovo and Bosnia: three points
by Noel Malcolm
At a recent conference on the Balkans, after several of the speakers had argued in favour of the rights of the Kosovo Albanians, a young Serb nationalist in the audience made a brief but passionate intervention. 'You support the national self-determination of the Albanians in Kosovo, but you deny it to the Serbs in Bosnia', he said. 'You are guilty of double standards.'
This argument is already a common one, and it will no doubt be heard more and more often as the Kosovo crisis deepens. It exercises a powerful hold, not only over the minds of Serb nationalists, but also over those Western diplomats who argue that autonomous status within Serbia is the maximum that the Kosovo Albanians are entitled to ask for. Nevertheless, this comparison between the Albanians' relation to Serbia and the Bosnian Serbs' relation to Bosnia is false, in at least three different ways. It is ethnographically false, historically false and legally false.
The territory now designated as 'Republika Srpska', on the other hand, was part of the medieval Bosnian kingdom; it was part of the eyalet (large administrative unit) of Bosnia in the Ottoman Empire from 1580 to 1878; it was part of Bosnia under Austro-Hungarian administration (1878-1918); it was part of the Bosnian republic from 1945 to 1992, and has been part of the sovereign Bosnian state since then.
In other words, the territory of Republika Srpska has been part of a Bosnian geopolitical unit for 373 out of the last 400 years. During the same period Kosovo has been part of a Serbian geopolitical unit for just the last 53.
In 1992 an international group of constitutional lawyers (the Badinter Commission) advised Western governments on the legal implications of the break-up of Yugoslavia. Their main conclusion involved making a legal distinction of enormous importance. They judged that what had happened when Slovenia and Croatia (and later Macedonia and Bosnia) became independent was not 'secession', not the falling-off of a few outlying portions from a continually existing Yugoslav state; rather, it was the 'dissolution' of the entire Yugoslav state into its constituent units. (The fact that the Serbian-Montenegrin federation has continued to call itself 'Yugoslavia' is of no relevance here: this Yugoslavia is a new formation, created by the coming together of two ex-Yugoslav units, Serbia and Montenegro.)
Unfortunately, the Badinter Commission never actually specified which units were the 'constituent units' of the old Yugoslavia. Western governments worked on the assumption that only the six republics could count; but this was just a policy decision by the Western powers, not the result of a legal ruling. (Properly speaking, the Badinter Commission did not supply rulings either, only advice; but its conclusions are universally regarded as the most authoritative advice available.) Any constitutional lawyer who studies the 1974 Yugoslav constitution, and looks at the way in which Kosovo did in fact function within the Yugoslav state, will be forced to conclude that Kosovo was, in virtually all significant ways, a constituent unit of the old federal Yugoslav system. It is on these grounds that the Kosovo Albanians have a clear legal case for demanding independence.
The only straightforward defence against this case on the Serbian side of the argument would be to say that what matters is not the constitution of 1974, but the final amended version of that constitutional structure which was in force in 1991-2 (at the time of the dissolution of Yugoslavia) - in other words, after the dismantling of Kosovo's autonomy, instituted by Milosevic and pushed through the Kosovo Assembly in 1989. But this is at best a weak foundation on which to rest Serbia's legal claims, given that all observers in 1989 were agreed that the relevant vote was forced through the Kosovo Assembly under extreme duress.
One other legal-historical claim, sometimes made by Serbian government spokesmen, should also be mentioned. It is claimed that the dissolution of Yugoslavia in l991-2 cannot affect Serbia's rights over Kosovo, because Kosovo had already been part of Serbia before Yugoslavia was created in the first place. Kosovo was conquered by Serbian and Montenegrin armies in 1912; thereafter it was occupied mainly by Serbia (with a western part under Montenegrin occupation), until the Serbian forces were themselves driven out during the First World War. At the end of the war it was then re-occupied by the Serbian army. So when Yugoslavia was created in late 1918, Serbia brought with it the territories of Kosovo and Macedonia, which (it is claimed) were already parts of Serbia.
In legal terms, however, there is a vital difference between occupation and ownership. Serbia did indeed occupy most of Kosovo between November 1912 and November 1915, but Kosovo was not legally part of Serbia. It is in fact doubly true that the Serbian occupation was not the same as a legal incorporation of Kosovo into Serbia: true in terms of Serbia's own constitutional law, and true in international law as well.
Serbia's constitution of 1903, which was in force in 1912, decreed that no change could be made to the borders of Serbia without the agreement of a special, enlarged 'Grand National Assembly'. No such assembly was ever convened to ratify the annexation of Kosovo.
In international law, territory conquered by one state from another becomes legally part of the victor-state when the transfer is formally agreed to by the two belligerents in a treaty after the war. Two such treaties were drawn up (The Treaty of London in 1913, and the Treaty of Istanbul in 1914), but neither was ratified by Serbia. In strict law, therefore, Kosovo was no more part of Serbia in 1912-15 than it was part of Austria-Hungary or Germany or Bulgaria (the later occupying powers) in 1915-18.
It is also noteworthy that the Serbian government never passed any legislation to make the Albanians of Kosovo citizens of Serbia; they gained a new citizenship for the first time when they were made citizens of the Yugoslav state (the 'Kingdom of Serbs, Croats and Slovenes') in 1928. By that time, more pragmatic criteria of international law could be invoked (long-term control and settled administration, with the de facto recognition of other states) to argue that Kosovo could no longer be regarded as legally part of the Ottoman or Turkish state. But the conclusion is unavoidable: while Kosovo did at some time become legally part of the Yugoslav state, it had not been part of the Serbian one in the period 1912-18. Kosovo thus entered Yugoslavia, not Serbia. Now that Yugoslavia is no more, it is not unreasonable that the Albanians of Kosovo should express the wish to exit.