The ICJ ruling on Kosovo
Author: Helsinki Committee for Human Rights in Serbia
Uploaded: Monday, 02 August, 2010
According to the influential Helsinki Committee based in Belgrade, the International Court of Justice's advisory opinion on Kosovo's declaration of independence marks a turnabout in interpretation of the Yugoslav crisis
On 22 July 2010 the International Court of Justice (ICJ) delivered an advisory opinion on Kosovo independence. Kosovo’s Declaration of Independence, ruled the ICJ, did not violate international law. For Serbia, this piece of news was a ‘heavy blow’ (President Boris Tadic), but not a de nite defeat of a longstanding and counterproductive policy. The jurists who have worded the initiative for the ICJ and supported it wholeheartedly were disappointed most of all: they were surprised by ‘the opinion’s preciseness,’ they said. It was obvious that everybody has looked forward for an opinion that each of the two sides could interpret as it suited it, an opinion that would make it possible for Belgrade to maintain the status quo or even coerce Kosovo’s partition.
The hopes that Serbia would start ‘cohabitating’ with the realities more constructively after delivery of the opinion have not come true.
However, despite the rhetoric associating the xenophobic policy of the earlier period and unavoidably confronting Serbia with major international factors such as US and EU, now its leadership seems to be seeking some balance between ‘strong’ rhetoric and ‘soft’ patriotism. Indicatively, also, no public protest was staged in Serbia or incident provoked as in the case of Kosovo’s independence declaration.
The government’s motion for ‘continued defence of Kosovo’ in the UN was voted in by a great majority of MPs (192 out of 250) at an extraordinary parliamentary session on 26 July. And yet, what marked most addresses by MPs from the ruling coalition – but those from the Serbian Progressive Party as well – were appeasing tones when it came to relations with the most in uential international factors. So vice-premier Ivica Dacic said: ‘Though we need to be aware that the international order is unjust, it does not mean that we should stay away from it.’ He also said it was necessary for Serbia to recognize the new political reality against which ‘we should defend Kosovo without leading the country towards self-isolation.’(1)
Belgrade, being after renewal of status negotiations, now counts on the fact that ICJ did not ‘legalize Kosovo’s secession’ (as it was not on ICJ agenda after all). Most parliamentary caucuses, including those from the opposition (Serb Progressive and Serb Radical parties) supported this strategy. MPs from Kostunica’s Democratic Party of Serbia voted against the government’s motion – for them, it was not radical enough. Namely, according to Kostunica, Serbia is making a ‘fundamental mistake’ by turning to the UN General Assembly and ‘dislodging’ the Kosovo issue from the Security Council, where ‘we can keep things under control with Russia’s principled support.’ In his view, the General Assembly could ‘in ict a heavier and more far-reaching blow to Serbia’ (than ICJ).(2)
MPs from the Liberal Democratic Party also voted against the motion. Party leader Cedomir Jovanovic insisted on an utterly new governmental policy. ‘Minimizing defeats and hushing up the truth leads us nowhere,’ he said. Rather than pursue its Kosovo policy and ghting for ‘things that have nothing to do with real life,’ the government should nally set its priorities, said Jovanovic.(3)
At this moment, Belgrade’s strategy is still that of buying time on the one hand and intensive diplomatic action among the countries that have not yet recognized Kosovo on the other.
However, despite his more moderate rhetoric and stance about the need for Serbia to develop ‘the best possible relations with the great powers,’ President Tadic’s speech, taken as a whole, put across quite a different message. Addressing MPs, he said: ‘What matters to us is the ultimate goal – and that goal is a sustainable solution for Serbia’s integrity, for the safeguard of Kosovo and Metohija, for the protection of our people and cultural identity over there. That’s what matters to us.’(4) He called the ICJ advisory opinion ‘a rolling stone that may harm the interests of many countries worldwide’ and made no bones about the Kosovo issue being ‘a generational challenge,’ while the Albanian national question was a legitimate and important agenda for [discussing] the Serb national question.(5) Actually, that’s the most important message of all: it (as Dobrica Cosic has been insisting) acknowledges the Albanians’ legitimate demands on the condition of demarcation between the two peoples. The message goes along the lines of Cosic’s plan about recomposition of the Balkans – a recomposition that would meet the interests of Serbs and Albanians to the detriment of Macedonia and Bosnia.
Belgrade has not acknowledged the new facts stemming from the ICJ’s precisely worded advisory opinion and having an effect on a number of UN member states. Namely, two years ago, when the EU, the US and eventually the UN gave the green light to Belgrade’s initiative for an ICJ advisory opinion on Kosovo independence, everyone hoped that Belgrade was shifting the Kosovo issue from the political to the legal terrain. Accordingly, the approval was meant to be a small concession to Belgrade on the one hand, but a sufficient compensation to its regime on the other, to be ‘played on at home’. But Serbia interpreted it as a major, authoritative acknowledgement that ‘matters are not settled yet’, and that many options ‘are still open’. Through intensive diplomatic action, mostly among the Non-Aligned countries, it managed to obstruct further recognition of Kosovo statehood (so far, 69 countries out of 192 have recognized independent Kosovo).
In its strategy for rounding off its war goals - above all, for annexation of Republika Srpska (RS) - Belgrade could now (mis)use the ICJ advisory opinion as an argument for the dissolution of Bosnia-Herzegovina. Bosnia-Herzegovina has always been its top priority, whereas Kosovo is more or less just a trump card for satisfying the territorial appetites of the Balkan nations involved. In this context, the premier of RS Milorad Dodik’s reaction to the ICJ advisory opinion is most indicative. Noting that RS has been unhappy for a long while with the fact that it is a constituent part of Bosnia-Herzegovina, Dodik said: ‘The ICJ opinion could at least be used as a signpost for RS in its struggle for its future status.’ (6) Nebojsa Covic, a former member of Zoran Djindjic’s cabinet, shares Dodik’s opinion. According to him, the ICJ explanation indicates that self-determination is viable. ‘Like it or not, the same right belongs to Serbs in north Kosovo and in Gracanica and Kosovsko Pomoravlje, but also to those in RS,’ he argues.
Hardly anyone seemed to pay any attention to the section of the ICJ advisory opinion quoting that RS (just as in the case of Cyprus) is not entitled to secede, given that such a possibility is not provided for under the Dayton Accords, whereas UNSC Resolution 1244 shelved Kosovo’s status until some future date.
Serbia’s decision to act on its own in submitting a draft resolution to the UN General Assembly clearly shows that it has not given up its strategy for ‘recomposition of the Balkans’.
Immediately before the ICJ published its advisory opinion, Serbian president Boris Tadic said that Serbia was ready for ‘any decision the court may make’. He added, however, that he looked forward to an opinion that would ‘deny Albanians the right to ethnically motivated secession from Serbia’.(7) Indicatively, an action plan for the forthcoming session of the UN General Assembly had already been developed. So it happened that the moment the ICJ delivered its opinion, President Tadic announced that envoys would be sent to 55 countries to present his personal letters to their respective heads of state and government, primarily to those under pressure from the US and the EU to recognize Kosovo independence. Referring to such a large-scale diplomatic mission, foreign minister Vuk Jeremic said: ‘We shall do our utmost to minimize new recognitions and to have Serbia’s resolution adopted by the General Assembly this fall.’ ‘That will be a hard mission, but not an impossible one’, he added. (8)
Belgrade’s strategy is based on the interpretation that the ICJ advisory opinion relates just to the ‘technical content of the declaration of independence’, since the ICJ judges avoided the fundamental issue of secession. In this context, President Tadic said: ‘The text of [Kosovo’s] independence declaration, as such, does not breach international law, since it does not even touch on it. The ICJ has left any political conclusion to the UN General Assembly. And this is an opportunity for Serbia to struggle for its just cause at the UN session this fall.’ (9)
Reactions of the political parties
Almost all of Serbia’s political elite supported the initiative for bringing the issue of Kosovo independence before the ICJ. However, once its advisory opinion was given, some opposition parties tried to use it for putting all the blame on the incumbent government.
The Democratic Party of Serbia - which lost the 2008 elections on its hard-line Kosovo policy, while its leader lost the premiership - was the strongest critic of all. The party vice-president, Slobodan Samardzic, demanded President Tadic’s resignation (and that of all ministers from the ruling coalition). In support of his argument, he emphasized the ‘political selfishness and political incapacity’ of the master-minds and executioners of the ‘catastrophic policy for Serbia’s southern province’.
The Serb Radical Party directed its criticism towards the ICJ, which had ‘brutally trampled on international law’, whereas the leader of the Serb Progressive Party, Tomislav Nikolic, insisted on a meeting of ‘all those on whose opinion Serbia’s future course depends’. ‘This is a hard time, but not the time for sorrow... We need to decide what to do next’, he said.(11)
The Liberal Democratic Party was the most constructive of all. According to it, the ICJ ruling calls for changes. ‘All our future foreign-policy actions should serve a single, major goal - prompt accession to the EU’, said the party leader, Cedomir Jovanovic.
Vuk Draskovic, leader of the Serb Renewal Movement, also takes the view that the ICJ opinion must be accepted with due respect. ‘Only through cooperation with the EU and the international community, rather than through conflict with them and the Prishtina authorities, could Serbs in Kosovo safeguard their economic, cultural and spiritual ties with Serbia’, said Draskovic. (12)
Disappointed with the ICJ’s clear-cut stance, the parties of the ruling coalition tried to neutralize the significance of the message coming from The Hague by resorting to legal-political ‘acrobatics’. They insisted that the ICJ opinion had not touched on ‘the heart of the matter’, and argued that it was ‘yet another in a series of precedents of international law with far-reaching consequences for the international order’ (Suzana Grubjesic of G17 Plus). (13) According to the vice-premier and leader of the Socialist Party of Serbia, Ivica Dacic, the ICJ was ‘more under the influence of politics than of legal arguments’. However, he added, ‘the ICJ opinion must not be taken as a defeat for Serbia at the international level... Serbia must persist in the protection of its national and state interests by peaceful and diplomatic means.’ (14)
A new resolution
Even before the ICJ published its opinion, the public in Serbia had been informed that the regime and its diplomacy did not consider this opinion the final act of their ‘struggle for Kosovo’. Given that it was the UN General Assembly that had formally turned to the ICJ, explained the authorities, the UN General Assembly itself was the last and most important venue for discussing the Kosovo issue. Hence, Serbia was already preparing a draft resolution for the General Assembly’s consideration.
Brussels was all too well aware of Belgrade’s tactical move. Hence, it started sending messages about ‘the significance the EU attaches to Belgrade’s reaction to the ICJ opinion’. The prime minister of Belgium (presiding over the EU) Yves Leterme said during President Tadic’s visit to his country: ‘the reaction of Serbia’s authorities will be more important than the opinion itself... The EU will be carefully observing these reactions.’ (15)
At the same time, the media in Serbia ran the news about Brussels offering Belgrade its ‘good services’ in drafting the UN resolution. The offer was made through ‘a high-ranking Serbian official’, said the media, noting that was ‘a final offer’ to be answered by 22 July at the latest (the publication date of the ICJ opinion). (16)
According to the daily Blic, all of Serbia’s top of cials discussed the offer only to conclude that the paper sent by the capital of the EU was ‘much too neutral and ambiguous, and unacceptable to Serbia’. (17)
Quoting its sources, the daily Danas claimed that Serbia’s plan for the upcoming session of the UN General Assembly constituted the sole topic of all talks between the country’s top officials and US and EU diplomats. ‘Speculation [in the media] about a possible partition of Kosovo and exchange of territories only weaken Serbia’s negotiating position. Such possibilities have never been mentioned in any talks,’ added the paper. (18)
It is still hard to tell whether under present circumstances Serbia might change its mind and ultimately accept the EU offer for a joint resolution. This is what Ivan Vejvoda, director of the Balkans Trust for Democracy, openly advocates. From a political point of view, the ICJ advisory opinion is ‘unexpected and has a sobering effect,’ says Vejvoda, adding that from now on any independent and unilateral action by Serbia could ‘only lead to a fresh defeat in the UN General Assembly.’ (19)
Given that the parliamentary debate showed that no one is eager to aggravate relations with the EU, the legal-political team tasked with drafting Serbia’s resolution for the UN General Assembly will most probably be consulting Brussels in the process. In this context, the media are elaborating a thesis about another round of negotiations between Belgrade and Prishtina: negotiations without a precisely defined topic (without the term ‘status’ on which Belgrade has insisted so far).
Negotiations with Brussels on a joint resolution have failed. Belgrade has submitted a resolution of its own despite Germany’s, France’s and the US’s insistence on omitting the term ‘unilateral secession,’ as an ‘unacceptable way to settle territorial issues’. (20) Foreign minister Vuk Jeremic left for New York to address a Non-Aligned forum and meet with the ambassadors of a number of UN member-states.
According to the American Balkans expert Martin Sletzinger, Serbia cannot attain both of its priorities – joining the EU and maintaining Kosovo. It is obvious, says Sletzinger, that the EU wants Serbia in its ranks regardless of Kosovo; but it is also obvious that relations between Serbia and Kosovo need to be settled before Serbia joins the Union. (21)
A resolution welcoming the ICJ ruling was drafted in Tirana in consultation with the US. The resolution calls upon all countries to recognize Kosovo and con rms Kosovo’s and Serbia’s commitment to a European course. (22)
Continued disregard for the suggestions coming from Serbia’s most important international partners (EU and US) is not just something the government and the parliament have decided upon, but part of a much larger strategy. This strategy is also upheld by informal centres of power such as the Serbian Academy of Arts and Sciences circle around Dobrica Cosic, the Serb Orthodox Church and the entire conservative bloc. They have always been after the partition of Kosovo, and they still are - even at the cost of a total asco. They are counting on a sufficient number of opponents to the ICJ advisory opinion and on a new round of negotiations on Kosovo’s status.
The decision on a unilateral resolution could bring about Serbia’s total defeat in the General Assembly, but also create new stumbling blocks on its way towards the EU. Brussels still possesses the ‘potential for blackmail’: it may or may not guarantee Serbia smoother acceptance of its candidacy, or provide guarantees for North Kosovo. Everything depends on Serbia’s exibility.
Serbia has failed to use the ICJ advisory opinion to make a clear break with Milosevic’s policy – both for Kosovo and for Bosnia-Herzegovina. Its unreadiness for such a U-turn was manifest in all statements given on the occasion, and in the attempts to link the ruling on Kosovo with Republika Srpska. Belgrade’s acceptance of the EU’s offer for a joint resolution (that would not mention the status of Kosovo) would be a step in the right direction.
The EU’s offer implies swifter acceptance of Serbia’s candidacy. Serbia should not miss this opportunity, which would at the same time guarantee the Balkans’ irrevocable commitment to transformation and new values.
Relations between Serbia and Kosovo need to be put as soon as possible on a track that opens up a dialogue on all burning issues with which both countries are concerned.
Milorad Dodik failed to attain pan-Serb unity on the ICJ advisory opinion. That is a good sign: the opinion seems to have sobered up the general public.
It was for rst time ever that an international institution had made public a clear-cut stand on the Yugoslav crisis. The major international factors, therefore, need to stick to such precision and unity when it comes to Bosnia-Herzegovina.
Now that ICJ has given its advisory opinion on Kosovo, Bosnia-Herzegovina remains the only open issue and a true challenge with which the international community must cope consistently and resolutely. The policy of pleasing ‘the strongest party’ has only harmed all countries in the Balkans.
Statement published as Helsinki Bulletin 66 (July 2010), 2 August 2010
1. Press, 27 July 2010
2. Danas, 29 July 2010
3. Politika, 27 July 2010
6. Politika, 23 July 2010
7. Blic, 22 July 2010
8. Danas, 22 July 2010
9. Politika, 23 July 2010
15. Danas, 16 July 2010
16. Blic, 19 July 2010
17. Blic, 21 July 2010
18. Danas, 16 July 2010
19. Politika, 23 July 2010
20. Blic, 29 July 2010