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The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused?

Published online by Cambridge University Press:  11 February 2011

HURST HANNUM
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Abstract

The ICJ's Advisory Opinion adopted a very narrow approach to the question posed by the General Assembly, but its basic response – that Kosovo's declaration of independence did not violate general international law – was correct. While it might have been preferable if the Court had given more guidance regarding the contemporary scope of self-determination, neither supporters nor opponents of Kosovo's independence gained much from the opinion. No definitive conclusion about Kosovo's status can be drawn without agreement between Pristina and Belgrade, and outsiders should avoid prejudging or interfering in that outcome.

Keywords

Kosovosecessionself-determinationterritorial integrity
Type
KOSOVO SYMPOSIUM
Information
Leiden Journal of International Law , Volume 24 , Issue 1 , March 2011 , pp. 155 - 161
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 UN Security Council summary records, UN Doc. S/PV.6367 (3 August 2010), at 9.

2 Ibid., at 16.

3 International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion), 22 July 2010 (hereinafter Kosovo AO), para. 122.

4 See S/PV.6367, supra note 1, at 12 (France), 14 (Turkey), 15–16 (United Kingdom), 19 (Japan), and 19 (United States).

5 Statement by Lamberto Zannier, Special Representative of the Secretary-General, supra note 1, at 3.

6 Kosovo AO, supra note 3, para. 82.

7 Ibid., para. 83.

8 Separate Opinion of Judge Cançado Trindade, para. 2.

9 Ibid., para. 215.

10 Separate Opinion of Judge Yusuf, para. 11 (emphasis added).

11 See, e.g., Cançado Trindade, paras. 41 and 42.

12 See, e.g., ibid., Sections IX–XI, paras. 138–168.

13 Ibid., para. 119.

14 Ibid., para. 133.

15 See, e.g., ibid., paras. 108, 109, and 121.

16 Even the pre-March 1999 years in Kosovo may be problematic as an example of atrocities so grave that they would give rise to a right to secession. The OSCE report cited by Cançado Trindade (para. 161, n. 176) does refer to ‘patterns of grave abuses’ by Serb forces prior to the commencement of bombing in March 1999. It refers to the massacre of 45 people at Recak in January 1999 as ‘indicative of what was to follow’ after the bombing began, but it states that ‘[t]he more frequent occurrence in the period of the OSCE-KVM's presence in Kosovo [October 1998–March 1999] was, however, killings on an individual basis’, OSCE, Kosovo/Kosova, As Seen, As Told (December 1999), at 69, available at www.osce.org/publications/odihr/1999/11/17755_506_en.pdf.

The assessment of the facts by the Independent International Commission on Kosovo, chaired by Justice Richard Goldstone of South Africa and Carl Tham, then secretary-general of the Olof Palme International Centre in Stockholm, also might give pause to those who view Kosovo as the paradigm of remedial secession:

It is important to note that for the entire period of internal war, between February 1998 and March 1999, preceding the bombing campaign, the Commission has had considerable difficulty pinpointing statistics on the levels of lethal violence committed against civilians in Kosovo . . . . However, apart from the shocking exception of the Recak/Racak massacre, it is reasonable to assume that the number of civilian killings was significantly lower during the presence of KVM monitors [which ended three days before the bombing began on 25 March 1999] than during the earlier months . . ..

. . . There is widespread agreement that FRY forces were engaged in a well-planned campaign of terror and expulsion of the Kosovar Albanians [after the bombing began] . . . .

. . . We cannot know what would have happened if NATO had not started the bombing. It is however certainly not true that NATO provoked the attacks on the civilian Kosovar population – the responsibility for that campaign rests entirely on the Belgrade government. It is nonetheless likely that the bombing campaign and the removal of the unarmed monitors created an internal environment that made such an operation feasible . . . .

Report of the Independent Commission on Kosovo (2000), at 83 and 88.

The Commission concluded that NATO's military intervention was ‘illegal, but legitimate’. Ibid., at 186. Although generally sympathetic to NATO's actions, the Commission noted that ‘[t]he rationale for military intervention by NATO thus rested not on the immediate scale of humanitarian catastrophe in early 1999, but rather on a weaving together of past experiences and future concerns’, ibid., at 159. The Commission also observed that abuses in Kosovo ‘were comparable with those of numerous other recent counter-insurgency wars, for example Colombia or Turkey’, ibid., at 136.

In March 2000, Jiri Dienstbier, a former Czech Foreign Minister serving as a Special Rapporteur of the UN Commission on Human Rights, stated at the Commission that most of Kosovo was ‘ethnically-cleansed of non-Albanians, divided, without any legal system, ruled by illegal structures of the Kosovo Liberation Army and very often by competing mafias’. ‘West Should Hit KLA Extremists in Kosovo-UN Sleuth’, Reuters (29 March 2000). His subsequent report stated that ‘[d]ozens and perhaps hundreds of individuals have been killed since June 1999 on account of their ethnicity’ – this time, almost all the victims were Serbs or other minorities. Report of the Special Rapporteur of the Commission on Human Rights [Jiri Dienstbier] on the Situation of Human Rights in Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia, UN Doc. A/55/282 (20 October 2000), para. 101. UNHCR reported that approximately 500 persons were killed from June 1999 to June 2000; ibid., para. 104.

These observations do not diminish the crimes committed by FRY forces in Kosovo or the pervasive human rights violations that occurred between 1989 and 1999. However, they illustrate the difficulties the Court would have faced if it had attempted to determine whether or not Kosovo met the criteria for self-determination or remedial secession referred to in para. 82 of the Advisory Opinion and alluded to by Judges Cançado Trindade, Simma, and Yusuf.

17 Yusuf, supra note 10, para. 2.

18 S/PV.6367, supra note 1, at 24.

19 Yusuf, supra note 10, para. 6. Also see the Dissenting Opinion of Judge Koroma, para. 4 (‘The Court's Opinion will serve as a guide and instruction manual for secessionist groups the world over, and the stability of international law will be severely undermined’).

20 S/PV.6367, supra note 1, at 16. This view is echoed by the United States; ibid., at 19.

21 Ibid., at 24.

22 Ibid., at 16.

23 Ibid., at 23.

24 GA Res. 64/298 (8 September 2010), para. 2.

25 Indeed, the Security Council has insisted on a ‘just, lasting and mutually acceptable political solution’ (emphasis added) even with respect to Western Sahara, whose claim to self-determination and independence in the context of classic colonialism would seem to be unquestionable. See, e.g., SC Res. 1871 (30 April 2009), para. 4.

26 The statement has been attributed to Vladimir Gligorov, the son of Macedonia's first post-1991 president. See, e.g., www.icrd.org/index.php?option=com_content&task=view&id=203&Itemid=133.

27 Again, a comparison to the interminable negotiations over Western Sahara and the non-negotiations in the Caucasus may be instructive.