Kosova’s independence is legal under international law

Author: Shkelzën Maliqi
Uploaded: Tuesday, 26 February, 2008

One of Kosova's leading intellectuals makes an overwhelming case for the legitimacy of its independence, in a comment published in the Belgrade independent daily 'Danas' on the eve of the independence proclamation

Albanians are a majority in Kosova, Serbs a minority. We don’t know the exact number of Albanians, but there are probably more than two million. We don’t know the exact number of Serbs either, but there are probably fewer than 200,000. In 2011 there should be another census that will re-install the regular process of data collection suspended thirty years ago, the last time that the Kosova population was recorded in a more or less satisfactory fashion. Regular census cycles are important for demographic studies, various plans and estimates of trends.

But I don’t want to deal with demography here. I wish to point to a fact that cannot be altered: that the Albanians are the overwhelming majority and the Serbs one of several minorities. This is indeed the decisive fact for any solution to Kosova’s status. Even if the whole of the international community had risen in defence of Serbia’s sovereignty over Kosova, the Albanians would have remained nationally and factually sovereign there. The international actors, however, have decided - by way of the Ahtisaari Plan and the subsequent additional negotiations - that it makes no sense to prolong the Albanian-Serbian agony that has been going on in an acute form for the past thirty years: the very years during which no censuses were conducted in Kosova. It is not that Great Britain, France, Germany, Italy or for that matter the United States harbour any particular love for Kosova or hatred of the Serbs. They are simply behaving in a pragmatic fashion. Independence is the most pragmatic, the least painful and the least complicated solution leading to regeneration and stability of the whole region.

Serbia’s evocation of the international law guaranteeing the sovereignty of UN member states does not mean much here, precisely because Serbia has largely contributed to the loss of that right over Kosova. Even if one were to set aside the argument that the latter’s independence follows from Yugoslavia’s break-up, or the particular argument on the right of self-determination based on the Yugoslav 1974 constitution, international law does not guarantee sovereignty absolutely. There are exceptional, special and unique cases, such as Kosova.

Those who speak of Serbia’s historical responsibility for losing Kosova are not beside the point.

Under the Milošević regime - which emerged in Kosova and maintained itself in power by manipulating with Kosova - Serbia criminally misjudged what it could do in order to retain control of Kosova and realise the aim upheld by international law. In January 1999, in the middle of the Kosova war, Milošević told an American paper, I think it was Newsweek, that there were 600,000 Albanians and 400,000 Serbs in Kosova. This was not an accidental error on the part of a politician who knew and closely followed the situation in Kosova. What Milošević said was in fact a Freudian slip betraying Belgrade’s genocidal plan to deport around one million and a half Albanians from Kosova, in order to reduce their size to a level acceptable to Serbia and subsequently to engineer an increase in the local Serb population, which in due time with state help would become a majority. The ‘scorched earth’ strategy that was employed in Kosova during that war had precisely this aim: to achieve ethnic cleansing on a large scale. Throughout the war the Serbian police and military or paramilitary formations were not fighting the KLA - their primary target was the civilian population. The systematic burning of villages was designed to prevent them from returning to their homes.

International law prohibits this. The same UN charter that upholds sovereignty also demands intervention on the part of the international community in cases where a state threatens the population on part of its territory: intends or commits genocide against ethnic or other minority groups. The Rambouillet conference offered Serbia a solution which it refused, after which came the punishment of bombing of Serbia in order to force it to desist.

The NATO intervention against Serbia in 1999 evoked precisely that principle.

Russia then too blocked a Security Council resolution that would have legalised the intervention directly; but most democratic countries, having witnessed the Bosnian war where genocide and ethnic engineering planned and guided by Belgrade had been allowed to happen, decided that Russia’s threat to use its veto was in fact blocking the application of an important principle of international law.

What Russia had done in Chechnya, where a ‘scorched earth’ strategy and complete repression of the civilian population was tolerated because Russia is a big power, and no one wished to start a world war in order to save the small Chechen nation, Serbia could not be allowed to do, hiding behind Russia and its crimes in Chechnya. The Europeans and the United States clearly said then that Kosova could not be a Serbian Chechnya; that it was part of Europe and a European problem. This is why they sent NATO to prevent the planned genocide.

This shows that the story about international law being endangered has another side: that it is precisely Russia and Serbia which have endangered the humanitarian principles upon which international law rests. It also shows that international law is not perfect and contains many contradictions. Were it perfect, Russia would not have been allowed to wage its war in Chechnya or President Bush his war in Iraq. The Iraqi problem, though, has another side, since that imperfect international law had allowed Saddam Hussein for many years to conduct a repressive and genocidal policy against Iraq’s own population.

What is often forgotten, not only in Serbia and Russia, but also in Kosova and the West, is that Kosova’s independence is likewise based on international law. Serbia would never have become an independent and sovereign state if the big powers had not recognised its right to leave the sovereign Ottoman Empire. Democratic states have laws that allow children to be taken from their parents, if the latter are irresponsible and endanger their children, who are then given into the care of other individuals or institutions. Kosova was similarly placed under the care of the UN, until such time as it would be ready to govern itself. This moment has come. But an independent Kosova will not be allowed to revenge itself against the Serbs. The offer what the international community has made to the Serbs with the Ahtisaari Plan is a fair offer, and can be an excellent basis for establishing good relations between Albanians and Serbs. Nothing is perfect, of course, and neither is this plan. But it is far better than the agony of the previous situation.

Translated from the independent Belgrade daily Danas, 16-17 February 2008

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