Cry Havoc

The decision of the International Court of Justice, made public on July 22, that the unilateral declaration of independence by the provisional government of Kosovo "did not violate any applicable rule of international law" was both predictable and shocking.

Predictable, because the ICJ panel considering the case included judges from nine countries that had already recognized the "independent republic of Kosovo." As deliberations began in December 2009, ICJ president Hisashi Owada even blurted out that the decision would be vague — which was interpreted at the time as confirmation that the court was under tremendous political pressure.

Shocking, because the actual decision (PDF) — that the declaration "did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework" — was reached by cheating.

Sophistry and Sleight of Hand

The question before the court, based on the request of the Serbian government to the UN General Assembly in October 2008, was whether the Provisional Institutions of Self-Government (PISG) acted legally when they declared independence in February 2008. The answer was intuitively obvious: the provisional government, set up by UNMIK under the provisions of UN Security Council resolution 1244, had no such power.

In his dissenting opinion (PDF), Judge Mohammed Bennouna of Morocco quotes the statement by Michael Steiner, then viceroy of Kosovo, from November 2002:

"Kosovo is under the authority of UN Security Council Resolution 1244 (1999). Neither Belgrade nor Pristina can prejudge the future status of Kosovo. Its future status is open and will be decided by the UN Security Council. Any unilateral statement in whatever form which is not endorsed by the Security Council has no legal effect on the future status of Kosovo."

There is no ambiguity here. Unless the Security Council endorses the resolution of status, it simply cannot be legal. The Albanian provisional government was established by UNMIK, under the provisions of 1244, and therefore had to abide by those rules and laws. It did not. It clearly overstepped its authority, and its actions could not be legal. So how could the ICJ rule otherwise?

Another dissenting judge, Abdul Koroma of Sierra Leone explains (PDF):

"[The] majority opinion avoids this result by a kind of judicial sleight-of-hand, reaching a hasty conclusion that the "authors" of the unilateral declaration of independence were not acting as the Provisional Institutions of Self-Government of Kosovo but rather as the direct representatives of the Kosovo people and were thus not subject to the Constitutional Framework and UNMIK regulations. That conclusion simply cannot be correct …"

What point is there in law, if one can circumvent it simply by calling oneself differently?

Bennouna calls the majority’s reasoning "at best a sophism" and concludes:

"…it does not matter whether or not the authors of the declaration of independence are considered to be members of the Assembly of Kosovo; under no circumstances were they entitled to adopt a declaration that contravenes the Constitutional Framework and Security Council resolution 1244 by running counter to the legal régime for the administration of Kosovo established by the United Nations."

Upon reading these dissenting opinions, as well as those of vice-president Tomka (PDF) and Judge Skotnikov (PDF), it is hard to conclude that the ICJ reached its decision in good faith.

A Can of Worms

Serbia has already rejected the verdict and reiterated it would "never" recognize the province’s separation. The Albanians in Kosovo are celebrating what they consider a major victory. A day before the ruling, Vice President Biden reiterated the U.S. support for its protégé, and Washington is now calling for more recognitions. However, there are no indications any of the five EU members still refusing to recognize Kosovo as independent are prepared to change their mind. Despite some speculation in the West that Russia might throw the Serbs under a bus in favor of recognitions for South Ossetia and Abkhazia, the official Russian responsewas critical of the ICJ verdict.

Very few people will ever bother to read the hundreds of pages of the majority opinion, separate opinions by several majority judges, or the dissents. The vast majority of the world’s inhabitants will take media reportsthat "Kosovo declaration was ruled legal" at face value. 

Over the past two years, the Empire and its followers confidently argued that even if the ICJ ruled against them, the decision would be "advisory and non-binding." Yet now they forget about that detail, and treat it as complete and total vindication of their claims.

Yet for all its verbal acrobatics, the ICJ did not really delve into the issue of whether the Kosovo Albanians’ case for independence had any merit. What it did do, however, is open up a can of worms about secessions worldwide. One senior UN official told Reuters that the ruling "will be read in a lot of capitals on the basis not of the Kosovo case itself but of the general implications for each country."

And not just in places like Slovakia, Spain or Cyprus. Daniel Miller, president of the Texas Nationalist Movement (TNM) cheered the decision today, stating:

"The United States and other European nations have acknowledged the right of unilateral secession of any state, thereby making any violent opposition to a seceding state unsustainable and unjustified."

Shifting Principles

That is most certainly not what the sponsors of the "independent state of Kosovo" in Washington and Brussels had in mind. In fact, they insisted from the very beginning that Kosovo was a sui generis case, a special one-off situation that would not set any precedents, so the rest of the world had no reason to worry. When one tears down the law, however, there truly aren’t any precedents — or rules, for that matter. Everything becomes sui generis, and the governing "principle" is whatever works at the time.

The Balkans lands are the prime example of this Orwellian development. In 1991, the U.S. and European capitals initially supported the integrity of Yugoslavia, only to completely turn around and endorse the secession of Slovenia and Croatia based on the right of self-determination. The secession of Croatia and Bosnia-Herzegovina — uncontested in principle by Serbia, it needs to be noted — produced a conundrum of their own, some 2 million Serbs who did not wish to separate from Yugoslavia, so they themselves seceded. At this point, however, Americans and Europeans began to insist that the integrity of Croatia and Bosnia trumped the Serbs’ right to self-determination. Yet when it came to Kosovo, the "principle" shifted again, so the rights of Kosovo Albanians trumped the integrity of Serbia!

As Doug Bandow put it, back in 2007, "If there was one consistent theme to the U.S. position, it was that the Serbs should lose."

Attempts to point out the incongruity were brushed aside by Imperial policymakers as a futile search for "perfect reasoning, which does not correspond to reality on the ground." That is, "reality" as willed into existence by the Empire.

Even the ICJ has not been immune to this relativistic logic. Back in 1999, it refused to hear Yugoslavia’s case against NATO, claiming that Belgrade had no standing. But in 2006 it ruled that Serbia had standing to have been sued by Bosnia back in 1993! That case, incidentally, ended with Serbia exonerated of all charges, which may have been the reason why Belgrade placed so much trust in the ICJ when it came to Kosovo.

Hubris and Nemesis

Empire’s crafting of an "independent" state in Kosovo has been an ongoing process since 1998, or maybe even before. Along the way, it has demanded many coercive changes to reality, the most apparent being the 1999 war and occupation of the province. This week’s ICJ decision comes a close second. Truly convinced in their ability to reshape the world by their strength of will, Imperial policymakers have forgotten that ideas — and actions — have consequences. As noted in this column in December 2009, "It is one thing to flout the law with impunity. It is quite another to call such of behavior legal."

Yet that is exactly what the ICJ decision has done for the Empire. What forces may have been unleashed by Thursday’s decision, only time will tell. But the law of unintended consequences and a sense of irony ingrained in human history suggest that the blowback will be nothing short of spectacular.

Author: Nebojsa Malic

Nebojsa Malic left his home in Bosnia after the Dayton Accords and currently resides in the United States. During the Bosnian War he had exposure to diplomatic and media affairs in Sarajevo. As a historian who specializes in international relations and the Balkans, Malic has written numerous essays on the Kosovo War, Bosnia, and Serbian politics. His exclusive column for debuted in November 2000.