Kosovo and Bosnia
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 point about ethnography is perhaps the most obvious one. Any
demand for 'national self-determination' involves the idea of creating a
territorial unit, and for this it is necessary to have some coherent territory
where the nation in question lives. The Albanians of Kosovo clearly have such a
territory: they amount to roughly 90 per cent of the population there. The
Bosnian Serbs, on the other hand, used to be scattered through most of Bosnia,
forming an ethnographic patchwork with the Croats and Bosniacs (Bosnian Muslims). There were several smaller areas where the Serbs were the predominant
element, but these were not contiguous on the Bosnian map; many Serbs lived in
areas where no 'ethnic' group had an overall majority. The only way to create a
'national' territory, therefore, was to engage in ethnic cleansing on a huge
scale, which is what the Serb extremist leaders did in l992-3. The 'right' to
national self-determination cannot be built on such artificial and massively illegal foundations.
The point about history is less widely understood. Many people in the
West seem to assume that Kosovo is (as Serb publicists claim) an age-old Serbian
territory. It was indeed part of a medieval Serbian state, from the beginning of
the 13th century to the middle of the 15th. (So too, for some of that period,
were other territories, such as Macedonia and much of northern Greece, which few
people regard as historic Serbian land today.) But that is the only period of
its history in which Kosovo was part of an independent Serbian state, indeed the
only time before 1945 that it belonged to any sort of Serbian entity at all.
During the entire Ottoman period Kosovo was not part of Serbia. Until 1817 there
was no 'Serbian' entity, not even as an administrative unit of the Ottoman Empire, to be part of; later, when a Serbian entity did exist (within the Empire,
l8l7-78, and then outside it, after 1878), Kosovo was not incÌÌÌÌÌÌÌÌÌÌÌÌÔ
luded in it.
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
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.
Finally, the difference in legal status between Kosovo (vis-à-vis Serbia)
on the one hand, and Republika Srpska (vis-à-vis Bosnia) on the other, is also
very great. In Tito's Yugoslavia, above all in the final version of his Yugoslav
constitution (1974), Kosovo had a special kind of dual status: it was described
as an autonomous region or province of Serbia, but at the same time it functioned directly as a unit of the Yugoslav state at the federal level. No such
status was accorded to any territorial sub-section of Bosnia.
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
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
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 werÌÌÌÌÌÌÌÌÌÌÌÌÔ
e 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.