By Vojin Joksimovich Ph.D | ICJ ruling did not say if sovereign states could but recognize Kosovo’s independence outside the legal profession, the nuance between the declaration of independence and the secession will in all likelihood be ignored.

On July 22 the International Court of Justice in The Hague ruled that the general international law, UN Security Council Resolution #1244 or the Constitutional Framework did not prohibit declarations of independence in reference to the unilateral declaration of 17 February 2008 by the Kosovo Albanians. The advisory ruling was requested by the UN General Assembly at the request of Serbia. The ruling surprised many legal experts who didn’t expect such a straightforward language. It was expected that the ruling would allow all sides to save their faces. Invariably Serbia has been and continues to be the loser. An explanation is that the judges didn’t rule on the subject of right of secession from the Republic of Serbia. They have also sidestepped the key issue whether there is legal basis in international law for secession. At the same time the judges acted irresponsibly by ignoring possible consequences. The ruling did not say if Kosovo was a state. It didn’t say whether it was compatible with the international law if sovereign states recognize Kosovo’s independence. Outside the legal profession, the nuance between the declaration of independence and the secession will in all likelihood be ignored.

While the ruling is advisory and it is up to the UN General Assembly to act on it, it is an immeasurable blow to Serbia and the international law. This ruling essentially completes dismantling of the international law, which started on March 24, 1999 when the NATO bombs and cruise missiles started raining over Serbian targets, marking the first time in NATO’s 50-yr history that the alliance directed its military might—second to none in the world—at a sovereign nation, which posed no threat or even ill intentions to the U.S. or Europe, breaking the international law seven ways without approval of the U.S. Congress in violation of the U.S. Constitution. The same court hinted that the NATO aggression was illegal while denying Yugoslavia’s plea for a halt in bombing.

Former Nuremberg War Crimes prosecutor, Walter Rockler, wrote: “The attack on Yugoslavia constitutes the most brazen international aggression since the Nazis attacked Poland to prevent ‘Polish atrocities’ against Germans.” The UN-1244 terminated this illegal war and was a product of a compromise between the western powers (the U.S., UK, France) on one hand and Russia and China on the other. Kosovo independence consideration was completely out of the question and therefore there was no need to introduce any specific prohibition. The ICJ judges chose to ignore this most essential part of the illegal NATO war and hence their ruling is deeply flawed.

This blog addresses three subjects: Anatomy of the ICJ ruling, Impact on Serbia, and the impact of the international law.

ANATOMY OF ICJ RULING

Fifteen judges constitute the ICJ. The Chinese judge retired so 14 judges voted. The court unanimously found that it has jurisdiction to give the advisory opinion requested by the UN General Assembly and by 9:5 decided to comply with that request. Then by 10:4 arrived at the opinion that the unilateral declaration of independence (UDI) did not violate the international law. President of the court, the Japanese judge Owada who is the father of the Japanese crown princess, voted in favor together with judges representing the U.S, Germany, France, UK, Mexico, Brazil, Jordan, New Zealand and Somalia. The Slovak judge Tomka, the court vice-president, together with the judges from the Russian Federation, Morocco and Sierra Leone voted against.

A look at the court composition suggests domination by large countries with only six small countries represented. Does this adequately represent the UN membership? Four NATO countries are represented which are almost invariably supported by Japan, Jordan and New Zealand in international affairs. All these countries have recognized the Kosovo independence. Somalia, which is a lawless country, is represented!!

The decision appears to be the biggest common denominator the judges were able to arrive at. Belgrade’s Novosti reported earlier that the first vote was 8:7 in favor of Serbia while the Chinese judge was still there. Presumably, the Japanese president instituted some changes which enabled three judges to switch sides. How this was done will remain a secret inside the Peace Palace in The Hague. The court has dodged the contentious issues. The question about the origin of a new state is a political issue. There are explanations which refer to the international law but de facto the judges based their decision on UN-1244 and concluded that it had not “specifically” prohibited the UDI and therefore it was not illegal. There is a statement that UN-1244 is “at best ambiguous whether the resolution creates such a prohibition.” What a leap forward!! How about the fact that the resolution terminated the U.S./NATO illegal war and that it contains the explicit clause that the UN mission was to promote the establishment of “substantial autonomy and self-government within Yugoslavia” taking full account of the principles of sovereignty and the territorial integrity of then Yugoslavia and now Serbia. What is “ambiguous” about this clause?

RAPE OF SERBIA

The ICJ ruling represented yet another chapter in the rape of Serbia which commenced with the dismemberment of Yugoslavia first by Germany, with recognitions of Slovenia and Croatia, and then by the U.S. with recognition of Bosnia. Anti-Serbian policies have been pursued since 1992 and will continue presumably until Serbia is reduced to the territory it occupied prior to the Balkan wars. The U.S. selected the same Balkan proxies as Nazi Germany did in WWII, i.e. Croats, Bosnian Muslims and Kosovo Albanians against the Serbs despite the fact that Serbia was the U.S. WWII ally. 

The Belgrade government seems to finally realize that hard times lie ahead judging by statements made by Vuk Jeremic, the foreign minister. After making the point that the court has dodged the key issue of the Albanian right of secession, Jeremic promises continuation of the fight even if the relations with the EU are at risk. The UN General Assembly is the only avenue left for Serbia to pursue. Serbia apparently plans to introduce a new UN resolution after getting the endorsement of the parliament scheduled to meet on the 26th. Jeremic reiterated that Serbia will never recognize Kosovo emphasizing constitutional, political, historical and moral obligations. In that respect, President Tadic intends to send representatives to 55 countries with a message that a shift in their position would result in a dangerous precedent as it would encourage many secessionist movements in the world.

Srdja Trifkovic in his excellent piece, ICJ Ruling: Blow to Serbia, Boon to Tadic, doubts in the sincerity of the Tadic’s administration and argues that “Tadic and his cohorts have been looking for a way to capitulate on Kosovo, while pretending not to. The formula was simple: place all diplomatic eggs in one basket—that of the International Court of Justice—and refrain from using any other political or economic (let alone military) tools at Serbia’s disposal.” Trifkovic makes the same point as I did in my book Kosovo is Serbia that the decisive fruit of Tadic’s policy was a disastrous decision to accept the EU’s Eulex Mission in Kosovo in December of 2008. “This was the moment of Belgrade’s true capitulation.” Russia was ready to cast a veto in the UN Security Council but didn’t do so because of Tadic’s acceptance of EULEX.

Vojislav Kostunica, Former PM of Serbia and a legal scholar, stated that the Tadic’s government is responsible for this ICJ defeat and attributes this calamity to the administration’s propaganda that joining the EU has no alternative. In my blog Is President Tadic Serious about the future of Serbia, I have stated that “no alternative” approach is not only actually flawed but even philosophically nonsensical as only death has no alternative. I have argued that there are viable alternatives for Serbia probably more promising that joining the EU, i.e. an association with the BRIC countries (Brazil, Russia, India, China), which have much more economic potential then the moribund EU. Besides, the BRIC countries have been supporting Serbia’s Kosovo position.

Kostunica, while the PM, advocated that Serbia should file a law suit against a county, which has recognized Kosovo rather than pursuing the ICJ path. Furthermore he has stated that the Tadic’s administration didn’t genuinely defend the Serbian national interests and “our Kosovo.” For that reason he is demanding Tadic’s resignation. If Tadic were an honorable man he would have offered his resignation.

DISMANTLING THE INTERNATIONAL LAW

International law is the term used for referring to laws that govern the conduct of independent nations with one another. The UN, created in 1945 in the aftermath of the WWII, is responsible for much of the framework of existing international law. The UN Charter has been adhered to by virtually all states. The ICJ was established by the UN Charter as its principal judicial organ.

The conclusion of the Cold War should have resulted in dismantling of massive U.S. military arsenal after the justification for its existence has disappeared. Instead, the U.S. has established the policy of world domination, Pax Americana. In 1992, Paul Wolfowitz authored the document called Defense Planning Guidance, which amounted to the first articulation of a post-Cold War military strategy. Diplomacy and the need for cooperative internationalism were replaced with so called “forward presence.” It was a vision that assumed not only preservation of existing military bases but the expansion of them. This 21st century Pax Americana amounted to the permanence of war. Thucydides, a Greek historian and author of the History of the Peloponnesian War, is often called the father of the school of political realism, which views the relations between nations as based on might rather than right. In conjunction with Hobbes and Machiavelli, Thucydides continues to be the father of political realism according to which state policy must primarily or solely focus on the need to maintain military and economic power rather than on ideals or ethics.

In contrast to Pax America, President Kennedy in his famous 1963 American University speech, advocated the world peace vision. “What kind of peace do I mean? What kind of peace do we seek? Not a Pax Americana enforced on the world by American weapons of war. I am talking about genuine peace –not merely peace in our time, but peace for all time.” The Treaty of Westphalia of 1648 represents another contrast. It terminated the Thirty Years’ War, which killed 30% of the population of Central Europe. The treaty’s foundation was the doctrine of sovereignty, which declared a state’s domestic conduct and institutions beyond the reach of other states. For over 200 yrs—until the outbreak of WWI—the state system achieved its objectives with exception of the Napoleonic era.

Might rather than right doctrine led to the policy of amputation of sovereign Serbia, analogous to amputation of Czechoslovakia in 1938. Establishment of the Camp Bondsteel military base in Kosovo, the largest military base to be built since the Vietnam War, was a key objective. The same doctrine was essentially applied for justification of the war in Iraq. Wolfowitz dreamed about invading Iraq in the 1970s.

The U.S./NATO 1999 war against Serbia broke seven international laws: Vienna Convention, Article 1 of the NATO Treaty, Article 5 of the UN Charter, Helsinki Accords, Geneva Conventions, Illegal Sanctions, and Outlawed Weapons use. Hence, it marks a historic turning point amounting to the dismantlement of the international law. Force and coercion have replaced the international law and returned the world to dark ages. It enabled delivery of victory to a bunch of Albanian narco-terrorists to trample the territorial integrity of a sovereign nation. Somewhat of an analogy would be for the U.S. being asked to admit foreign troops to return Alamo to Mexico because the ethnic balance in Texas has shifted.

The ICJ ruling represents a crown jewel of this shameful chapter in the world history, in which might makes right doctrine preempts the peace driven set of international laws. What an irony that the UN court would preside over dismantlement of the international law and returning to the Thucydides world of the 5th century BC.

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