Kosovar Independence - Public International Law - Frank Muenzel - 1998
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Recht · Völkerrecht · International Law · Geschichte · Politikwissenschaft
Wir bedanken uns bei Herrn Prof. Dr Muenzel für die Erlaubnis zur Veröffentlichung dieses Beitrags.
WHAT DOES PUBLIC INTERNATIONAL LAW HAVE TO SAY ABOUT KOSOVAR INDEPENDENCE ?
- Prof.Dr. Frank Muenzel
- University of Goettingen Law Faculty
- Max-Plank-Institut fur Auslandisches und Internationales Privatrecht
- Hamburg, Germany
Der Beitrag wurde auch in Gordischer Knoten Kosovo/a: Durchschlagen oder Entwirren? Völkerrechtliche, rechtsvergleichende und politikwissenschaftliche Analysen ..., hrsg.v. Joseph Marko, Nomos, Baden-Baden 1999 veröffentlicht.
Vorbemerkung: Dieser Artikel beruht auf dem Stand der Ereignisse im Jahre 1998. Er berücksichtigt deshalb weder den Verzicht der kosovarischen Organe auf ihre Rechte nach dem Einmarsch der NATO noch die dann folgenden albanischen Übergriffe gegen die Roma und die serbische Minderheit. Wir verweisen in diesem Zusammenhang auch auf das Postscript und Post-Postscript aus 1999 am Ende des Werkes.
Kosova<1> lies between Montenegro, Serbia, Macedonia and Albania. Not counting refugees and Kosovars permanently resident abroad, it has a population of about 2.2 million, of whom 92% are Albanians. The rest are Roma (i.e.Gypsies), Serbs<2>, Turks, Bosniaks (i.e. Muslims speaking Serbocroatian), Croatians and Cherkessians<3>. More than half of the population is below 19 years old. Kosova is the most densely populated area in the Balkan peninsula (not counting purely urban areas). It is very rich in mineral resources.
Until 1912, the country was part of one of the Albanian vilayets (provinces) of the Ottoman Empire<4>. Since 1908, the goverment of that Empire was in the hands of a group called Jeunes Turcs (Young Turks), who tried to save the Empire with a policy emphasizing Turkish nationalism and therefore ordered the closure of schools using languages other than Turkish (and having no foreign backing), in particular Albanian schools. The deputy for Prishtina in the Ottoman parliament, Hasan Prishtina, having protested in vain against this decision, organized an uprising which soon had all of Albania up in arms. The leaders of the uprising had a list of 14 demands concerning in particular education in Albanian; besides, they wanted some degree of local autonomy. They were successful; in 1912, the Ottoman authorities agreed to their demands. But the neighbours - Montenegro, Serbia, Bulgaria and Greece - did not want an autonomous Albania but rather to partition that country among themselves. Therefore they declared war on the Ottoman Empire. This was the 1st Balkan War.
Formally, this was a war against the Ottoman Empire. The Serbian king declared that the aim of Serbia in this war was the liberation of all Balkan peoples, including the Albanians, from the Ottoman yoke. So the leaders of the Albanian uprising and other Albanian notables at once formed an Albanian government which declared Albania fully independent and asked the neighbours, including Serbia, for peaceful cooperation. The neighbours, however, did not heed this request and directed their actions less against the Ottoman troops still remaining in Albania than against the Albanians themselves. The Serbian army, with the knowledge and sometimes on the explicit orders of its king, "pacified" the area it occupied with a cruelty which at least in Europe had been unheard of for centuries<5>. In present day Kosova, Serbian and Montenegrin troups killed at least 1/10 of the population, destroyed whole villages, robbed and pillaged. Under torture, many Muslim and Catholic Albanians were forced to accept orthodox baptism. These horrors, widely reported in the European press of the time, shocked the European public<6>; the European powers exercised pressure on the four Balkan states to end the war and finally achieved the conclusion of the London peace treaty, of May 30, 1913, between the four Balkan states and the Ottoman Empire. In this treaty, the Empire ceded to the four Balkan states all its European territories west of a line roughly corresponding to the present Turkish border in Europe, with the exception of Albania (art.2); the fate of Albania, including the determination of its boundaries, was left to the decision of the six leading European powers (Austria-Hungary, Britain, France, Germany, Italy and Russia). A conference of the ambassadors of these powers in London agreed, on July 29, 1913, on an "Organic Statute" for Albania, which provided for a foreign prince to rule the country, supported by an international police force and under the supervision of an International Control Commission formed by the powers. The powers even agreed on the choice of the prince; but they vehemently disagreed on the boundaries of the country. While Austria-Hungary and Italy wanted it to include most of the area with an uninterrupted Albanian population, Russia wanted only a small Albanian core to remain and to give most of the rest to Serbia and Montenegro. In the Florence protocol of Dec.17, 1913, the powers finally agreed on an intermediate solution, a boundary roughly corresponding to the present-day boundary of the Republic of Albania.This left half of all Albanians outside the new country. Of present day Kosova, about half was assigned to Montenegro, half to Serbia. On this decision, Yugoslavia now bases its claim to Kosova.
The Albanian goverment established in 1912 accepted the decisions of the conference of ambassadors, resigned and transferred its powers to the prince, who of course restricted his administration to the area delimited in the Florence protocol. The protests of the Kosovars remained unheeded, even though they kept up their armed resistance against the terror of their new Serbian and Montenegrin rulers. At the beginning of WW I, however, the prince left Albania. His administration, the International Control Commission and in fact anything resembling a state in that country ceased to exist. The whole area was occupied by the armies of the warring parties, Northern Albania first by Serbian and Montenegrin troops; these were expelled in 1916 by the Austro-Hungarian army which also, together with Bulgaria, occupied Kosova. In the Albanian areas, including Kosova, Austria-Hungary organized an Albanian civil administration; the Albanian schools, which had been closed down by the Serbs, were reopened.
Meanwhile, in London, on April 26, 1915, Britain, France and Russia concluded a secret treaty with Italy, concerning Italy's entry in the war on the side of the allies. This treaty provided (Note to Art. V and Artt. VI and VII) for the area which had been the principality of Albania to be divided among Italy, Serbia and Greece. Only in central Albania, a small "Muslim state" should remain as an Italian protectorate, to be represented abroad by Italy.
When the Austro-Hungarian army retreated from the area in 1918, parts of the country around Pejë were conquered by an Albanian armed group, the Kaç aks. But then the army of the newly founded "Kingdom of the Serbs, Croats and Slowenians" (later called Yugoslavia; below, we shall only use this later name) occupied Kosova by force, with the help of French troops. (The Kaç aks succeeded, however, to keep some areas around Junik until 1924.) In Durrë s, an Albanian goverment was formed, brought parts of the country under its control and demanded admittance to the League of Nations and frontiers better in accordance with the wishes of the population; it proposed that the US should occupy for one or two years those areas of which pre-war Albania had been deprived by the Florence protocol in 1913; subsequently, a referendum should decide on the fate of these areas. Britain, France, Italy and Yugoslavia opposed the admittance of Albania. They wanted to partition Albania as provided for in the 1915 London treaty. The US, however, in pursuance of the principle of self-determination of nations as advocated by President Wilson, upheld the independence of Albania and pushed through its admittance to the League of Nations; and the 2nd assembly of the League decided on Oct.2, 1921, that the Albanian boundaries were to be determined by an international commission to be formed by the main allies. This commission, however, again set up by a conference of ambassadors on Nov.9, 1921, then determined boundaries which corresponded to those determined in 1913.
In doing so, the allies hoped that Yugoslavia would honour its obligations under a treaty on the treatment of minorities which it had concluded with the main allies on Sept.10, 1919. In this treaty, Yugoslavia had promised to treat its minorities decently (provide education in their languages, allow them to use their languages in relations with the administration and before the courts, etc). The treaty provided (art.9) that it was to be applied in the areas ceded to Serbia and Montengro since Jan. 1st, 1913, i.e. also in present day Kosova. Nevertheless, Yugoslavia then claimed that the treaty only applied to the areas formerly belonging to Austria-Hungary<7> and continued the pre-war Serbian efforts to Serbicize Kosova; every resistance was broken by the annihilation of whole villages. In July, 1919, the French consul in Skopje reported 9 massacres with 30 to 40 thousand victims and that the Albanian primary schools had been closed down again and replaced by Serbian ones.<8> On Sept. 16, 1924, the "United Committee of Non-Liberated Albanians" sent a protest, signed by Hasan Prishtina and others, to the League of Nations in which it was stated that "under the name of 'national organizations', the Serb-Croat-Slovene State has organized armed gangs which terrorize the Albanian areas and kill the farmers after robbing them and burning down their houses. Under the pretext of suppressing rebels, regular Serbian forces have destroyed many villages in the counties of Prishtina, Vuç itern, Mitrovicë and Ipek [i.e.Pejë =Pec ] and killed thousands of their inhabitants, not sparing even women, children and old people. Every attack on the Albanians is followed by the settlement of ... Serbian colonists who then in their turn systematically terrorize the neighbouring villages so as to force the villagers to leave their land which will then at once be seized by the state and 'colonized' in its turn... Albanians in the villages and towns, who all are farmers, are robbed of their land under the pretext of the execution of agrarian laws... The Serbian constitution is worth as much for the Albanians as the Ottoman constitution of the Young Turks was worth for the Armenians..." Albanian was not admitted as a language of education in the schools or as a language which could be used in the administration or before the courts. Up to WW II, there were no Albanians schools in Yugoslavia, and more than 90% of the Kosovar population remained illiterate. With the activities just described, continuous pressure was exercised on the Albanians to leave Kosova for Albania or Turkey. To facilitate this, on July 11, 1938, Yugoslavia and Turkey even agreed on a draft treaty for the settlement of "Turkish" immigrants from Yugoslavia in Turkey.<9> As Yugoslav funding for the transportation and resettlement of these "Turks" could not be secured as provided for in the draft treaty and Yugoslavia shortly afterwards fell victim to the German attack in WW II, this treaty was never ratified, but after the war, Turkey again agreed to accept immigrants from Yugoslavia who, as before the war, had to call themselves Turks but actually mostly were Albanians who left Yugoslavia under pressure during the 1950s (see below). While trying to get the Albanians to leave, Yugoslavia also made efforts to settle Serbs in their place, but these efforts had only limited success. Between 1919 and 1941, 53.884 persons were settled in Kosova and Western Macedonia, who until 1935 had been given 134.802 hectares of land.<10> The number of new "colonists" who actually settled in Kosova after 1945 probably remained below 20.000.<11>
Since Yugoslavia occupied the area in 1919 and until to-day, Kosova has been free or relatively free from Serbian dominance and, consequently, Serbian persecution of the Albanians only during two short periods: for 3 years during WWII, when most of the area was included in Albania (then ruled by fascist Italy) and during the last 6 years of Tito's rule, 1974-1980. During WW II, at a conference held at Bujan around New Year, 1944, to obtain the help of the Kosovars, Tito's partizans, represented by Miladin Popovic, promised that after the war, Kosova would be free to decide which country it would belong to. However, as soon as the war was over, Kosova was put under Yugoslav military administration which, during the first half of 1945, killed about 50.000 Kosovars. Military rule with its massacres ended in the fall of 1945, but police actions (interrogations under torture, searches) and trials directed against "nationalists", "separatists" and other "enemies" continued and cost many lifes. The searches for weapons during the 50s were particularly obnoxious; often, Albanians were forced to buy weapons, to be able to comply with the demands of the police to hand over weapons which they were supposed to own. At the same time, emigration to Turkey was suggested. Mainly as a result of these pressures, 1.5-2 millions Kosovars emigrated since 1945, first to Turkey, than also to other countries. E.g., in Germany there presently live about 200.000 Albanians from Yugoslavia, mainly from Kosova, who came to Germany since the late 50s and during the 60s, as "guest workers" or as members of their families - and probably nearly as many refugees who have been arriving since the 1980s.
Conditions temporarily improved after Tito expelled Rankovic from the Yugoslav Communist League in 1966. (Rankovic, who had been minister of the interior and head of the secret police, had fallen into disgrace as an adversary of democratization - and because his microphones had been discovered even in Tito's bedroom.) He had been the main hardliner against the Albanians - or so the new line had it. After his downfall, Tito gradually took Kosova out of Serbian control and even granted it autonomy in the new Yugoslav constitution of 1974. This meant that Kosova obtained autonomy within Serbia and at the same time became a constituent part of the Federal Republic of Yugoslavia. To-day, the official ideology in Yugoslavia describes the granting of autonomy to Kosova as Tito's betrayal of Serbia.<12> But at that time, the Kosovars were not content either. True, Kosova had achieved nearly the same rank as the "republics" (states) of the Yugoslav federation. A majority of the officials of the Kosovar administration now were Albanians. But there were no free elections or other possibilities for the Kosovars to decide their fate for themselves. Many demanded at least their own Albanian "republic" in the federation. As under the Yugoslav constitution the "republics" had the right to leave the federation, Tito was not willing to grant republican status to Kosova. Nevertheless, during demonstrations for republican status in 1966, only one demonstrator lost his life; under Rankovic, such a demonstration would never have ended with so little bloodshed. The intensity of political persecution had lessened considerably. But everybody who dared cross the official line and demand e.g. freedom for Kosova to leave the federation still was punished harshly. Eventually, the country even got a university, formed out of several previously existing colleges, at which, for the first time in Yugoslav history, lectures were given in Albanian, and later even its own Academy of Arts and Sciences. But those who graduated from that university found it ever harder to find work, especially work at home, as the economic development of the country fell farther and farther behind that of the other parts of Yugoslavia, while its rich resources were processed outside Kosova and a large part of the profits remained in Belgrade.<13>
Tito died in 1980. In the spring of 1981, Serbia used demonstrations (which had started as a student demonstration for better food in the university's dining hall and were quite peaceful; the demonstrators bore pictures of Tito) as a pretext to seal off the whole country, send in "special police" and clamp down on the demonstrators with utmost brutality. Probably well above 200 people got killed by the police,<14> and a purge of the Kosovar administration and institutions of those guilty of "ideological diversification", i.e. of "Albanian separatists" ensued. Added was a campaign of the Yugoslav media against the Albanians which had particular success with the claim that there were mass rapes of Serbian women, even nuns, by the Albanians. (Actually, the number of rapes in Kosova was far below the Yugoslav and Serbian average, only 9.6% of the victims were Serbs, and no case involved a nun.)<15> The high birth rate of the Albanians was described as an attack on the Federal Republic of Yugoslavia that would have to be countered by reducing this birth rate to zero<16>, and special legislation was passed to introduce birth control and disadvantages for families with many children; the application of this legislation was skillfully limited to Albanians without mentioning Albanians in the text of the statutes.<17> In 1989, Kosovar autonomy, until then still extant at least on the books, was formally abolished (by a decision of the Kosovar parliament on March 23rd, 1989; before the vote on this decision, Albanian deputies had received threats, during the vote, entrances to the parliament building were blocked by army tanks, army helicopters were in the air above the building, people who were no deputies took part in the voting, and the exact number of votes was not counted.)<18> Sapunxhiu, the Kosovar representative in the Yugoslav presidency which was then debating the draft of a new Yugoslav constitution, tried in vain to reintroduce Kosovar autonomy in that draft.<19>
Seen with hindsight from today, the violent abolition of Kosovar autonomy was the first step of Serbia towards the dissolution of Tito's Yugoslavia and the establishment of a new Yugoslavia to be dominated by Serbia. At the time, the head of the federal Yugoslav government, the Croat Markovic, and the representatives of the other Yugoslav republics watched with misgivings and fear what was happening in Kosova but hoped that Serbia's aspirations would be satisfied if they let it have its way there. "Kosovo is a minefield we do not dare step on" Markovic said<20> and rather concentrated on market reforms in the hope to save the economy and Yugoslavia with it. Left without help by the other republics, the Albanian deputies in the Kosovar parliament (four fifths of the total) met again on July 2, 1989 and declared Kosova a separate republic of the Yugoslav federation, then, in 1990, passed a new Kosovar constitution and finally, on Sept. 22, 1991, declared Kosova independent. This was confirmed, in a referendum on Sept.26 - 30, 1991, by 87% of all registered voters in Kosova (independent of their nationality).<21> Today, the country has a parliament, a president and councils for all communities (all within Kosova and elected for the second time in 1998) and a government in exile named by the president. Nearly the entire Kosovar population rejects the Serbian and Yugoslav authorities and does not participate in Yugoslav and Serbian but only in Kosovar elections. Yugoslavia and Serbia, on the other hand, do not recognize the Kosovar authorities<22> and persecute the Albanians with ever increasing intensity.
This is apparent also in the economic field. In Kosova, as in the rest of Tito's Yugoslavia, all larger enterprises were a kind of cooperatives, called "organizations of united labour" and owned by the "collective" of the employees of the enterprise, who elected the director of the enterprise and also had to decide on dismissals of employees. This was the so-called self-administration of enterprises. Even before 1989, these enterprises preferred to employ Serbs, so that among the 8% Serbs in the Kosovar population, 59.000 were employed by them, while among the 90% Albanians only 164.000 were employees. After the abolition of Kosovar autonomy, the Serbian parliament passed, on July 26, 1990, a law on "labour relations under special circumstances" which was applied only in Kosova and allowed the directors of enterprises to dismiss employees without the consent of the other employees; in addition, between 1990 and 1992, the Serbian parliament passed a total of 371 resolutions on "temporary measures for the social protection of self-administration rights" in individual Kosovar enterprises. These resolutions dismissed the previous management of the enterprise concerned and installed some Serbs as "temporary organs" in their place. These "temporary organs" had special managerial rights and in particular the right to decide on "status and labour relations" and on the "distribution of personal income". They used these rights to dismiss about 145.000 Albanian employees. Many of these also lost their flats which were given to Serbs. According to statistics of the Serbian minister of industry, 253 of these "socially protected enterprises", i.e. "90% of the Kosovar economy" then were privatized. In privatization, as a rule, a third of the shares of the enterprise is to be sold to the employees, now almost exclusively Serbs. The rest also is sold mostly to Serbs, but in the case of large firms often also to foreign buyers. (After Serbian Telekom had swallowed Kosovar Telekom, it was sold to an Italian and a Greek firm, the Trepç ë mine was sold to the Greek Mytilneos, shares in Ferronickel to Thyssen, etc.)<23> In this way, the larger Kosovar firms are sold for the benefit of Serbs. Smaller private Albanian shops are incessantly worried and often pillaged by the Serbian "financial police" and other authorities and sometimes forced to close down altogether.<24>
Moreover, financial funds and land were to be put at the disposal of the Serbian authorities to promote Serbian immigration to Kosova: to establish firms to employ the "colonists", to give land to the farmers among them, to build houses for them. However, these measures have had only limited success. Until now, about 14.000 Serbian "colonists" have come to Kosova, but about two thirds of them have left it again because of the miserable living conditions.<25> The funds earmarked for them are exploited by local Serbs who establish firms not really employing anybody, buy machines for them with government aid and sell them again in Serbia.<26> The sale of the land reserved for colonists, however, which would be of interest only to Albanian buyers, has been stopped by a Serbian law of April 18, 1991<27> that prohibits sales of immoveables which "might change the national structure of the population". Serbian officials and in particular policemen also obtain considerable benefits from the bribes the Kosovar administration is forced to pay them to have the Kosovar schools, hospitals and other institutions left in at least some peace, as well as from the amounts they steal from payments made by Kosovars abroad to the Kosovar goverment and to their families. Critics of the non-violent line of the Kosovar goverment claim that the Serbian police could be financed in its entirety from such sources.<28>
Serbia has dismissed nearly all Albanians that had been employed in the courts, the police, the schools, the university and the hospitals (infant mortality by now has become the highest in Europe). Under Serbian law, Serbian now is the only official language.<29> Prishtina university, formerly the only Yugoslav university where courses were given in Albanian, has been occupied by the Serbian authorities and courses are now given only in Serbian. The library of the university has been dissolved, its large, irreplaceable collection of Albanian books and periodicals has been sold as waste paper.<30> Many town libraries have met with the same fate. The Albanian middle schools have also been closed down. Only some primary schools have survived, but have had to give up much of their space to separate schools for the few Serbian children.
To fill these gaps, the Kosovar government has established makeshift hospitals, health stations and schools, including also schools at the university level, holding classes in private houses, sometimes basements and garages. The goverment also pays a modest allowance to several hundreds of thousands of people who have no other source of income and otherwise would starve. A centre of information and a Committee for the Defence of Human Rights have also been established. The Committee has built up a dense network of observers covering the whole country to investigate and report the violations of human rights by the Serbian authorities. All this is financed by a flat income tax of 3% which every Kosovar is supposed to pay voluntarily to the fund of the Republic; while little can be collected inside the impoverished country, the 3% paid by the Kosovars abroad are the main source of income of the Kosovar state.
The courts "installed by the Serbs" are hardly appealed to anymore by the Kosovars. Disputes are now resolved mostly by local notables such as priests, the elected mayors or the local representatives of the Committee for the Defence of Human Rights.<31> Large old disputes which could even lead to blood feuds are brought before "reconciliation meetings" headed by renowned intellectuals who talk the case over with the parties until these are persuaded to shake hands solemnly at large public meetings. Smaller cases are handled by "community councils to avoid negative phenomena".<32>
However, Yugoslavia has retained the power represented by the Serbian police, the Serbian courts and the Yugoslav army. From 1990 to 1997, on the average one to three Albanians were killed by the police every month. Searches of houses, arrests, torturing and plundering by the police became everyday occurrences.<33> Serbian persecution of Albanians was not limited to Kosova. When the Serbs took over towns in the Bosnian war, this was regularly preceded by shops being bombed, and always, all Albanian shops went up in flames first. Hardly any Albanian survived the Serbian concentration camps in Bosnia.
International criticism of the persecution of the Albanians is regularly answered by the Yugoslav goverment with references to the clauses on the protection of minorities in the Yugoslav constitution.
Against the Yugoslav persecution, the Kosovar government and all Albanian parties openly active in Kosova, in particular the largest among them, the LDK, restricted themselves to a line of strictly non-violent resistance.
Since the fall of 1997, there had been indications that a large Yugoslav action in Kosova was being prepared. First there were rumours about a mobilization of the army. Until then, Serbian media had always reported that everything in Kosova was under control. In Decmber, 1997, however, they suddenly claimed that (Serbian and Yugoslav) state control was limited to larger towns and to some fortified police posts at road junctions. The rest of the country, these reports said, was controlled by a well-armed and well organized Albanian underground army, the Uç K (Kosova Liberation Army) which, though this was denied by (the Kosovar president) Rugova and the Kosovar government, cooperated with them and recruited young Kosovars by force.<34>
This Uç K had first appeared in the middle of 1996 and since made news by attacks on Serbian policemen and Albanians claimed to be traitors as well as by pompous communiques. Until January, 1998, however, the scope of these attacks was quite limited, and the reports of the Serbian media about countrywide control by the Uç K evidently were nonsense. On January 21, 1998, the Macedonian president, Gligorov, not known as a friend of the Albanians, declared that Macedonia expected a war in Kosova and was preparing a "corridor" which Kosovars might use to flee to Albania. The Macedonian Albanians interpreted this as the preparation of Macedonian help for the expulsion of the Kosovars from their country. On February 11, 1998, two Vojvodinian politicians, the social democrat Canak and the reform democrat Isakov, declared that they had clear proof that the Yugoslav army was being mobilized for a war in Kosova in a way reminiscent of the preparations for the war in Croatia in 1991.<35> Two weeks afterwards, the war was started by massacres committed by the Serbian police, which used the Uç K as a pretext. In such actions, usually whole villages are surrounded, then first shelled by heavy artillery from a distance, sometimes also bombed from the air. Then snipers would shoot at anything still moving, finally the place would be "cleansed" from those people who could not flee in time. Often the livestock, too, is killed. The houses are pillaged. This is important especially for the Serbian volunteers participating in these actions, in particular for the gangs of Raznjatovic alias Arkan which already became well-known for this kind of activity in the Slavonian and Bosnian wars. They use trucks to take away everything of some value, such as household machines and electronic equipment, sometimes also pieces of furniture. They also take vehicles and machines which can still be used. Then they set the houses on fire, including all stocks, sometimes even the crops on the fields. (When time is insufficient to destroy all houses, they concentrate on the schools.)
The first of such attacks, on February 28 and March 1st, 1998, hit the villages of Qirez and Likoshan (community of Skë nderaj=Srbica). Helicopters, tanks and heavy artillery were used. The armed police entering the villages then killed 26 people. A pregnant woman was killed by being shot into the face. Parts of the body of one victim were cut off while the victim was still alive. This was followed by the attack on the houses of the Jasharaj family in Prekaz, of which members were said to have been active in the Uç K. The attack resulted in at least 56, probably 63 deaths, including ten children up to 14 years old. Three of the children taken away by the police were still alive and later slain. The youngest was seven years old.
However, these massacres were to be only the beginning. A Serbian "military analyst" from Prishtina, who did not want to be named, said, according to the Belgrade Nedeljni Telegraf of March 11, 1998: "In the Drenica area [which includes the attacked villages] we are far from having killed all the terrorists, for while according to what has become known until now, during the last two weeks at least 50 of them were killed, that number could be supplied by each individual village alone. In the other villages, too, there are enough strong terrorist bases, and the Cicavica mountains - which are the hinterland for Drenica and for a great number of villages - must be combed with particular care."
The despair and dismay caused by the massacres and in particular the horrible pictures of the Prekaz victims published in the press<36> resulted in the reaction the Yugoslavs may have hoped for. Many men joined the Uç K, and within a few weeks what had been a small, shadowy group turned into an army of desparate fighters who now appeared in many parts of Kosova, even though they were quite insufficiently armed. In many places self-defense groups were formed which often also called themselves Uç K. For a time, about 40% of the country were controlled by these units. These areas then came under massive Yugoslav attack. Yugoslav deserters who had participated in these attacks have reported that they had been ordered not to spare civilians. Many places outside the Uç K areas also were attacked, even though no clashes with Serbian forces had occured there, e.g. the villages of Dubovik, close to Pejë (which had had below 2000 inhabitants before the war; when the village was shelled, this number had swelled to 20.000 due to refugees coming from other areas) or Poturovc (Lipjan community) where three tanks arrived, shelled and destroyed the modern mill of the Shabani family which had provided flour for an area with about 60.000 people. When departing with the tanks, the Serbs took away the trucks used by the mill.
At the time of this writing (September, 1998), we find the following situation: Since the beginning of the war at the end of February, and until September 2, 1998, Yugoslav forces have attacked 391 out of the 1335 towns and villages in Kosova, 266 of these have been shelled with heavy weapons; 217 of these villages were deserted by all of their inhabitants, forced as they were to flee. Many places have been ransacked and then destroyed completely. In some areas, the crop has been systematically destroyed. Some areas have been declared "zones of death". Many villages and the city of Gjakova are under a hunger blockade. In some places, bread is sold only to Serbs. On September 2, 417.483 people had left their homes and fled partly to other parts of Kosova, partly to Montenegro, Albania and Macedonia.<37> Transports of aid to the refugees are systematically impeded; members of aid organizations have been shot at and arrested, aid supplies have been plundered. Several members of the humanitarian organization "Mother Theresa" were killed on April 24, 1998, when several tractors transporting supplies of food for the refugees were shelled.
The murderous acts of the Yugoslav and Serbian state are supported not only by the governing parties in Serbia (the Socialist Party of Serbia and the Radical Party of the Bosnian war criminal Šešelj) but also by the opposition (the "democrat" Djindjic and the nationalist romantic Draškovic), with the exception of the insignificant Citizens' Union of Vesna Pešic (which however limits itself to vague general protests against the inhumanity of the government; it does not support the Kosovar claims) and of Montenegro which has condemned the Serbian and Yugoslav actions and has done much to help the Kosovar refugees.
In its actions, the Yugoslav leadership closely cooperates with Belgrade mafia figures such as the abovementioned Arkan who also is a parliamentary deputy for Kosova. Such cooperation has a long tradition in Yugoslavia, but in Tito's times, it was limited to the security apparatus. Nowadays, this apparatus has become the main support of the leadership, and this may be one of the reasons for the close connections of the leadership with the mafia which is made public when highranking politicians, including Miloševic, appear at funerals of mafia leaders; they also seem to settle their accounts among each other with mafia help, with the result that it has become difficult to distinguish between political and mafia leaders.<38>
Yugoslav actions in Kosova in 1998 are reminiscent of the Yugoslav actions in the Bosnian war. As in Bosnia, Miloševic, Šešelj, Arkan and their men attempt, by massacres and terror, to make a whole people leave its homeland. The methods used are very similar, down to many details. In Kosova as in Bosnia, the population is maltreated in the hope that somebody will take up arms to defend himself. Where this does not happen, incidents are invented. Then whole villages are blocked and shelled, then shot at by snipers, so that the people must flee to save their lives.<39> In this way, the Yugoslavs attempt to "cleanse" certain "strategically important" parts of the country of their population, which then should be replaced by Serbian armed settlers. This has been prepared for some years by the publication of maps showing areas where some autonomy might be granted to the Albanians, as the number of Serbs and Serbian cultural monuments there was insignificant. On these maps, the areas to remain under complete Serbian control always include the larger towns, the more important mines and strips of territory along larger roads connecting them;<40> the territory now "cleansed" is mostly within these strips.
Yugoslavia presently plans a census<41>; only those participating in it will be recognized as "Yugoslav" citizens entitled to residence in Yugoslavia - including Kosova. The Albanians certainly will not participate in such a census, as they consider such acts of the Yugoslav state in Kosova illegal. This then can be used as a pretext to classify them as stateless persons without a right of residence in Kosova - as "guests" who have come from "somewhere else", now "behave badly" and therefore can be shown the door.
2. Ideological Background
The behaviour of the Serbs in Kosova since 1912 is based on their belief that Serbia has historical rights to the country and also on the assertion that Serbia is entitled to defend herself against the "genocide of the Serbs by demographic means".
Kosova or even the whole of northern Albania are claimed as the "cradle of the Serbian people", as "Old Serbia", as the centre of the empire of the famous Serbian tzar Dushan, the country of many old Serbian orthodox churches and monasteries with famous frescoes, lost only after a heroic battle with a vastly superior Turkish army in the great battle on the Kosovo polje, the field of the blackbirds, in 1389. At that time, the Serbs claim, Kosova or rather Kosovo was settled by Serbs. The Turks then brought there the Albanians, who were barbarians coming down into the fertile plain from some wild mountain cracks, driving the Serbs out of their own country. Some authors from the Serbian Academy of Arts and Sciences<42> claim that this happened only 300 years ago, when, in 1690 and again in 1739, Austrian armies that had reached Kosova and, welcomed by the Christian Serbs, occupied it for some time, had on their retreat taken many of the Christian Serbs with them. Only then, these authors claim, the fleeing Kosovar Serbs were replaced by Albanians descending from the Albanian mountains. Some even assert that the Albanians in the whole area they populate to-day are latecomers who arrived there after the Serbs, from God knows where.<43>
However, nearly all serious linguists nowadays agree that the Albanian language probably has developed out of Illyrian, a group of languages that in Roman times was spoken all over later Yugoslavia and Albania and in the Southeast of Italy. Even to the layman, the strikingly large number of Latin loanwords in Albanian shows that, other than Serbian, Albanian or its predecessor must have been spoken by people under Roman rule, who therefore must have lived in the Balkans long before any Slav languages were spoken there. The empire of tzar Dushan (who called himself the tzar of the Serbs, Albanians and Greeks) lasted only 9 years (from 1346-1355), even though members of his family, the Nemanjids, ruled various parts of northern Albania since the second half of the 12th century, for about 180 years, first as vassals of the Byzantine emperor, later rejecting Byzantine rule.<44> Similar "empires" under Serbian rulers also existed for some time in northern Greece; on the other hand, parts of Albania were ruled for some time also by Norman, Sicilian and Bulgar nobles. All these rulers were related directly or by marriage among themselves, with Byzantine emperors and with Albanian nobles, so that it is often difficult to say what nationality an individual ruler had; in any case, their nationality or rather the language they spoke hardly played a role; only their religion was of importance. The Battle on Kosovo polje, Fushë e Kosovë s, probably ended without a clear winner; the only report by an eyewitness that has come down to us, that of the Bosnian king Tvrtko, does not even mention the Serbs, but it does mention the Albanians, as participants on the Christian side. The Serbian "empire" ended already in 1355; the Serbian "state" did not end at that battle but much later; years after that battle, a Serbian army still helped the Turks attack Hungary. The Albanians held out against the Turks nearly a century longer than the Serbs. The beautiful frescoes in the Serbian churches have often been painted in Turkish times (and sometimes by Albanian monks, as in the church of Saint Naum on Lake Ohrid). In fact, the Serbian church prospered under Turkish rule and obtained for its members tax advantages similar to those allowed the Moslems. It then also succeeded to take away from the Albanian Catholics a number of churches, such as the patriarchate in Pejë =Pec. There are numerous documents dating from the middle ages which show the presence of Albanians, sometimes clearly describing them as numerically the most important group, in present day Kosova<45>. When the Austrians reached the area, their proclamations sometimes were ecxplicitly addressed to the Albanian population<46>. Among the people leaving Kosova with the Austrians and then settled by them in Syrmia, there were Albanians as well as Serbs; these Albanians estabished several villages in Syrmia and retained their old language until late into the 19th century<47>. Besides, where old sources mention "Serbs", they often simply mean orthodox Christians subject to the orthodox patriarchate in Pejë ; among these were many Albanians who had left catholicism because of the tax advantages they gained as orthodox Christians.
Such historical considerations, though, are of little interest to the Serbian ideologists. One of them quite honestly describes their stories as a "splendid myth"<48>. The leader of Serbian student protests in Prishtina, Zivojin Rakocevic, expresses their thinking very well: "Professor Jovan Cvijic was a genius. Already in 1903, he pointed out that there would have to be a collision between the Serbian and the Arbanesian population, and that the Albanian demographic bomb would push the Serbs back to Niš and Leskovac. Regrettably, the voice of this genius has remained a voice in the wilderness. These Shiptars, having lived for centuries far from any contact with civilization, now during the last 60 years invade civilization as nomads. Coming down from their impoverished lands in closed tribal societies, they enter Kosovo and Metohija, enticed by a madness for plains. This madness for plains has brought about a terrible demographic bomb, driven by Islamic fundamentalism and polygamy. Taking this into account, those who propose a division of the Kosovo [among Serbs and Albanians] will have to reckon with still another 300.000 Shiptars who will descend into the plains. The demographic bomb in this society would confirm the thesis put forward by Cvijic of the arrival of the Shiptars in Niš and Leskovac. Therefore, the natural frontier must be kept at every cost. ... The sainted knight Lazar lost head and country on the field of Kosovo [i.e. in the famous battle, where he is supposed to have led the Serbs] but received the heavenly empire in exchange, and thanks to this heavenly empire, we [Serbs] still are on the Kosovo plain to this day. But whoever now loses Kosovo will also lose the people and his own head and bear the mark of shame as long as the world still stands..."<49> This is not the voice of an old man caught up in nationalist phantasies of the last century. Rakoc evic was born only in 1974 and gives voice to feelings widely shared by the Kosovar Serbs, feelings also expressed, albeit in a less "scholarly" way, by a Serbian animal health inspector, aged 32, interviewed by an American journalist: "All these Albanian men have three or four wives and about 20 children. They make money running drug and prostitution rings, and none of them have proper state documents. At least 75% come from Albania or somewhere else, and the sooner we send them back the better."<50> Here, in a nutshell, we have the result of decades of anti-Albanian propaganda: Albanians are considered polygamous fundamentalists who multiply like vermin, criminals arriving here from somewhere else, to where they should be sent back post-haste.
This means that the genocide of the Serbs by the supposedly quite recent settling of Kosova by the Albanians and their "genocidal increase" must be stopped and reverted, both by ending the increase of the Albanians<51> and by their - at the very least - expulsion, as well as by the resettlement of Serbs in the area<52>. The Serbian government is blamed for not doing enough to attain these aims:
"Here in Kosovo, the mistakes of the strategists of the Serbian national question are particularly clearly apparent. The aims they pursued remained entirely unclear. Not to digress too far, let us only consider the demographic picture of Kosoovo. While here lies the main strength of the Albanians, there certainly have been chances to answer with a Serbian counterattack. About 80.000 Serbs have been driven out of Croatia alone. Why did the government in Belgrade not resettle them or at least half of them in Kosovo? Only 14.000 of them got into the hands of state organizations in Kosovo, and two thirds of them left again as soon as possible, fled Kosovo. They have been driven away by misery, by the lack of decent housing. Only a simbolic minority has remained... The official explanation for these difficuties is lack of money. ... But let us look only at a few facts. The community of Pec[=Pejë ] can dispose of 2500 hectares of community land, arable land. Only 1000 hectares of this land are actually used. The remaing 1500 hectares could have been distributed to the refugees, as their life-long property, but without the right to resell it. If every family had been given a hectare, Pec community would have got 1500 Serbian families, a zone with 15 villages... To tell the truth, something has been done. I myself visited two refugee settlements...[A colonist there] told me: 'They gave us houses, and we are grateful for that. But we have neither land nor work, no money from the sate. ... We got ten rifles, and now we prepare nightly watches... Many go to Montenegro to smuggle cigarettes. There is no other work."<53>
In fact, though, the persecution of the Albanians for more than a century has not been without success. Before its start, in 1840, the famous French geographer Ami Boué estimated the number of Albanians at 1.6 million and the population of Serbia at below one million. To-day, the proportions are rather the opposite.<54>
II. Legal Evaluation
1. Historical Rights
This argument is hardly worth discussing, even if we should accept the Serbian distortions of history. What happened 300 or 600 years ago cannot be a basis for rights claimed to-day. With a similar though historically sounder reasoning Germany could demand Rome, Luxemburg or Prague, as German emperors resided there in the middle ages. And if somebody wants to argue historical rights in Kosova, why not go back a few hundred years more, say to the 7th century, when without doubt ancient Albanian but no Slavic language was spoken in the area, and demand that the Serbs go back to the Ukraine or wherever Serbian might have been spoken at the time?
2. Right of Self-Determination
After WW I, US president Wilson introduced the right of self-determination of peoples into international law. To-day this is an undisputed part of this law, enshrined also in the Charta of the UN, in the International Covenants of Dec.16, 1966 (on Economic, Social and cultural Rights; and on Civil and Political Rights) and in the Declaration of the UN General Assembly on Principles of International Law Concerning Friendly Relations and Cooperation of Oct.24, 1970. According to this Declaration, every use of force depriving peoples of this right violates international law.
Can the Kosovars avail themselves of this right, are they a "people" or "nation" entitled to self-determination? Formerly, many scholars recognized such a right only to whole "peoples" and not to "parts of nations" or "national groups"; in particular, this was the view held by Stalin and following him by all socialist scholars even long after his death.<55> On the basis of this view, Yugoslav jurists claimed that the Albanian people had used up its right to self-determination by establishing the Republic of Albania, therefore the Yugoslav Albanians had no such right, not even a right to a separate republic in the Yugoslav federation.<56> But already in the first case which this principle was actually applied to decide, that of the Aaland Islands, the famous Expert Opinion written by the lawyers employed by the League of Nations recognized the right of self-determination of a part of a people, namely the Swedes of these islands, without even discussing a possible limitation to "whole nations".<57> This is not surprising, for if limited to "whole nations" i.e. the main nations of national states or at least whole nations occupying a continuous territory within a state, the principle would hardly ever have to be appealed to. Its main importance is in its application to national groups. Therefore, a majority of scholars now holds that not only every group which considers itself a people has a right to self-determination, but that such a right is also held by groups which consider themselves only a part of a people, such as the Aaland Swedes or the Armenians of Nagorny Karabach or (and in this case this view was supported even by the Soviet Union) the Irish of Northern Ireland.<58>
The Albanian Kosovars certainly are a part of the Albanian people, but they might nowadays even be recognized as having their own right of self-determination as a separate "nation": At first they saw themselves only as Albanians and not as a separate group - with the League of Prizren (1878), the movement for Albanian national unity had started in Kosova, and even at the Bujan conference in 1943/4 and until after WW II, the Kosovars always just demanded to be reunited with Albania. However, not sharing the experience of the Republic of Albania but living under the special conditions of Serbian repression since 1913, they have by now also developed a special group consciousness. They see themselves not only as Albanians but as Albanian Kosovars. Objectively, the area they occupy, and where they have the vast majority, has clear boundaries, and they are clearly distinguishable from the small minorities living there as well as from their neighbours. With two million people inside the country and at least one abroad, they also have the necessary size for a separate group. They therefore have the right to claim self-determination both as a part of the Albanian people and as a separate "nation".
2.1 Acquisition and Preservation of Serbian State Power Over Kosova in Violation of the Right to Self-Determination. Legal Consequences of this Violation.
Yugoslavia claims to derive its rights to Kosova from those of the kingdoms of Serbia and Montenegro to the area. Serbia and Montenegro occupied northern Albania during the 1st Balkan war, and as a result, the Florence protocol of Dec.1913 gave them what now is Kosova. Their murderous actions against the civilian population even then violated the principles of the ius belli recognized at the time.<59> Their war also violated international law because hostilities proceeded without a declaration of war against the real opponent, newly independent Albania. But though the Florence protocol did not take into account the will of the Kosovars, it did not violate the principle of self-determination of peoples, as at that time, this principle had not yet been recognized as a principle of international law.
However, what had been established in Albania and Kosova in 1913 was destroyed entirely during WW I. The international administration of Albania and indeed every vestige of a state in Albania vanished. The European powers from which it had originated were at war with each other, and some of them decided to divide the area up amongst the neighbours. Serbian and Montenegrin state authority also were driven out of Albania and Kosova and replaced first by a local Albanian administration under Austro-Hungarian military authorities (except in the North of Kosova which was occcupied by Bulgarian forces) and later by Albanian partizans.
In short, of the Albanian state of 1913 as well as of the Serbian and Montenegrin rule of parts of Albania, including Kosova, in 1913, nothing was left in 1918. Therefore, the 1913 situation is without importance here. We have to start from the situation which developed after 1918.
Yugoslavia as well as Albania were newly established in 1918.<60> Under Wilson's pressure, Albania was allowed to join the League of Nations, in pursuance of the Albanian people's right to self-determination. As the Aaland Expert Opinion had stated, this principle is of particular importance in a situation of general change, when everything is in flux and has to be rearranged so as to ensure lasting peace. This means that it has to be taken into particular consideration in an area where new states are being formed, new boundaries are about to be drawn. Therefore, it should have been applied to the determination of the new Albanian-Yugoslav frontier. This was not done. The new boundary violated the right of the Kosovars to self-determination, in spite of their protests and even armed resistance. The priciple of self-determination was disregarded even though the situation called even more urgently for an application of this principle than the situation of the Aaland islands. For while in the Aaland case the principle of self-determination was used to demand unsettling changes in a historically long-established situation, in Kosova it was used to defend such a historically long-established situation (Kosova having been a part of Albania - the Albanian vilayets, then independent Albania - for centuries) against unsettling changes determined by brute force and on the basis of brute force alone.
But what then does "self-determination" mean? It certainly does not always or even usually mean that the group using that right (in our case, the Kosovars) may establish its own state or may join another state. The peace treaties ending WW I include many examples of boundaries drawn against the wishes of groups claiming self-determination. Rather, as has been demonstrated already in the Aaland Expert Opinion, the economic, geographic and national situation in the whole area has to be taken into account and on this basis, it has to be determined to what extent the group entitled to self-determination may claim autonomy or independence or union with another country. As in the case of the Aaland islands, Finland had not occupied the islands by force, such as Kosova had been been by Yugoslavia; as the Fins had never massacred, robbed and expelled the Swedes and generally treated them as subhumans, such as the Serbs had treated the Albanians, so the Swedes did not need to be protected from the Finnish state, they only needed guarantees for the preservation of their cultural identity, which they obtained (with a far-reaching autonomy). But the Aaland Opinion also states that out of the right to self-determination, a right to secession results "as a last resort, when the state does not have the will or the power to give and ensure just and effective guarantees" for the rights of the group entitled to self-determination.
The Opinion here discusses for the first time the conflict between the right to self-determination, on one hand, and the principle that boundaries should not be changed by force, on the other, and develops principles for the solution of this conflict. The Friendly Relations Declaration of Oct.24, 1970, has restated these same principles: "Nothing in the foregoing paragraphs [scil. relating to the right of self-determination] shall be construed as authorizing or encouraging any action which would dismember or impair ... the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour" (our italics).<61> In other words: Usually, the right of self-determination of a group only means a right to autonomy sufficient to protect its equality with other groups, be it in the cultural field, be it elsewhere. It has a right to secede (to establish its own state or join another state) only when the state now ruling it does not follow the principle of equality and self-determination of this group, so that, for the rights of the group, in this state, "just and effective guarantees" cannot be obtained.
By signing the treaty on the protection of minority rights of Sept.10, 1919, Yugoslavia tried to give the impression that it was prepared to give even the Albanians "just and effective guarantees" of their rights, but then did not apply that treaty to the Albanians, claiming that the treaty was applicable only to the areas taken over from Austria-Hungary, even though the reference in the treaty to "the areas taken over by Serbia and Montenegro since Jan.1st, 1913" proves the opposite.
In fact, from the very beginning, Yugoslavia treated the Albanians under its control in the same inhuman way as they had been treated by Serbia and Montenegro before the war, and this has continued ever since Serbia or a Yugoslavia controlled by Serbia has had the country under its control. All this time, Serbia or Yugoslavia under the dominance of Serbia has tried to get rid of the Kosovar Albanians, on the basis of a racist ideology propagated already by Cvijic and Cubrilovic. Therefore, the conditions, stated in the Aaland Opinion, for a right of the Kosovars to secession exist, and they existed already in 1919, as well as in 1921, when the League of Nations commission determined the Yugoslav-Albanian border and thereby recognized the occupation of Kosova by Yugoslavia.
Therefore, Yugoslav rule over Kosova violates international law and has done so from its very start. Albania later recognized the Yugoslav frontier; but it could do so only for itself, it had no power of attorney to act for the Kosovars in this matter. The Kosovars themselves never wanted to belong to Yugoslavia. Whenever they had a chance to express their wishes, their large majority always demanded secession from Serbia and Yugoslavia.
The Serbian and Yugoslav state also never changed its attitude towards the Kosovar Albanians and thereby kept their reight to secession alive - with the one exception of Tito's last 14, in particular the last 6 years of his life (1974-1980). During that period, Tito had succeeded in largely wresting Kosova from Serbian control. Only Tito with his overwhelming authority was able to do this, but even he encountered great difficulties, and to-day, his action at the time is openly called treason by Yugoslav ideologists. As soon as he had died, Serbian persecution of the Albanians restarted, in spite of the statutory autonomy of Kosova (formally abolished only 9 years later). Now, since the remainder of Yugoslavia is entirely dominated by Serbia, this persecution has become ever more unbearable, and considering the terrible Serbian "police" actions since the end of February, 1998, changes in the Yugoslav attitude cannot reasonably be expected. The rules on the protection of minorities in the Yugoslav constitution evidently do not impede this persecution, cannot even hinder the passing of discriminatory legislation against the Albanians.
Therefore, the right of Kosova to secession continues to exist.<62>
2.2 "Consumption" of the Right to Self-Determination during Tito's Last Years?
During the period of effective autonomy, 1974-1980, the Kosovars had more or less resigned themselves to what they had been given under the Yugoslav and Kosovar constitutions. Does this mean that by this, they had "consumed" their right to self-determination?
Even during this time, the Kosovars had no chance to determine their fate themselves, neither in free elections nor in any other way. Therefore, they could even then not use their right to self-determination, much less "consume" it. To adapt to a more or less tolerable fate does not mean that one has accepted it, even less that one has determined it. On the contrary, even then, the Kosovars often demanded rights exceeding autonomy, thereby showing that they they wanted more than what had been achieved then.
Besides, the situation they had more or less resigned themselves to at that time was radically different from the situation before and after that time, under Serbian domination. Passive acceptance of the situation between 1974 and 1980 does not mean that the Kosovars had agreed to Yugoslav rule under Serbian dominance.
Therefore, the right of the Kosovars to self-determination has not been "consumed".
The principle of self-determination has found a particularly forceful expression in the demand for decolonialization emphasized by many resolutions of the UN General Assembly since the 1970s. These resolutions recognize that peoples under colonial rule have every right to liberate themselves from that rule, including the right to armed resistance (cf. resolutions 3070, 3103, 3246 etc).
Historically, decolonialization was first demanded for the overseas colonies of the European states, Japan and the USA. The USSR and its satellites always wanted to restrict the demand to these areas, so as to avoid a demand for the decolonialization of the Soviet empire.<63> However, the fact that a criminal, while accepting the validity of criminal law in general does not accept it for his own deeds is not a reason for a corresponding restriction of the validity of criminal law. Decolonialization must be demanded for areas treated as colonies everywhere in the world. That an area is not officially called a colony, such as Algeria or Kosova<64>, does not free its rulers from the duty to decolonialize.<65>
During Serbian and Yugoslav rule, the country has nearly uninterruptedly been treated as a colony. Its rich mineral resources have been exploited nearly without benefit to Kosova. The majority of the population has been discriminated against, maltreated and driven into exile, its persecution sometimes reaching genocidal proportions. It is subjected to an apartheid regime less for the benefit of the small Serbian minority but rather for that of the Serbian administrators forced on the country by the Serbian and Yugoslav governments. Therefore, the country has to be decolonialized, its liberation has to be supported, its independence therefore has to be recognized.
3. Traditional Conditions for the Existence of an Independent State
Traditionally, there are four conditions for the existence of an independent state: it must have a defined territory, a permanent population and an effective goverment, and be capable to enter into relations with other states.
All these elements are present in the case of Kosova: It has a clearly defined area and a permanent population. It is capable to enter into relations with other states. It also has an effective government, even though this is partly impeded by Serb-Yugoslav actions.
In some parts of the country, Kosovar state authority already is the only state authority existing there. The situation is similar to that existing in Guinea-Bissau in 1973, when this state was recognized by the USA and many other countries, even though it still did not control larger towns and an important part of the population of the country. The US government considered that "once a new government effectively controls the country and this seems likely to continue, recognition should not be withheld".<66> In Kosova, it might of course be asked whether Yugoslavia has not intentionally allowed some areas to slip out of its grip so as to have a reason to attack these areas more forcefully and kill a larger number of Albanians. But even if that was originally the intention of the Yugoslav authorities, it nevertheless seems difficult for them now to regain real control.
In addition, even Yugoslavia has already to some degree recognized the Republic of Kosova by largely leaving alone its organs, hardly impeding Kosovar elections and by the Yugoslav ruler, Miloševic, even concluding, in 1997, an agreement with the Kosovar president, Rugova (on the return of the buildings of Kosovar educational institutions; though Miloševic started to honour this agreement only under international pressure, after more than a year and in a very small number of cases).
The decisive factor in the competition of two governments for Kosova is, however, the history and nature of Yugoslav and Serbian government in Kosova: As has been described above, Yugoslav and Serbian government in Kosova has been established illegally, kept up illegally and in addition is not exercised in the way used by a state to govern its citizens but in the way a gang of criminals employs towards people who have had the bad luck to fall into their hands. In most of the country, Yugoslav government nowadays only appears in the shape of pillageing, destroying and killing raids by the "special police" and armed "volunteers" against changing aims. Even in the main cities, armed gangs of lawless Serbian volunteers rule the roads. This cannot anymore be called effective government. In Kosova, any persistent, effective government except that of the Republic of Kosova no longer exists.<67>
Therefore, in discussing whether the Republic of Kosova has government, Yugoslav and Serbian "government" cannot be taken into account. The only question is whether the Republic of Kosova itself does exercise any authority or is a mere shadow organization. As the Republic of Kosova levies taxes, employs them for the tasks a state has, and is considered the only legal authority in the area by the vast majority of its citizens, it is no shadow organization but has real governmental authority. The situation is reminiscent of that of the Baltic republics in 1990/1991 or that of the Western Sahara (already recognized by many countries<68> as an independent state).
As the Republic of Kosova has its own territorry, population and government, and as it is capable under its constitution to enter into relations with other states, the Republic of Kosova is an independent state.
4. War a Duty under International Public Law?
If we do not follow the arguments for the independence of Kosova discussed in the preceding paragraph, this means that the Kosovars will have to go to war to cement the power of their state and thereby prove their right to independence. Such a war, which may already have started, will be a war of national liberation, which means that in this war, in accordance with many resolutions of the UN General Assembly, the Kosovars will have to be supported by the international community. It will certainly cost a great many lives, but will probably be sucessful in the end.
In other words: If we do not accept the arguments for Kosovar independance discussed above, this means that we demand that the Kosovars, to put an end to the unbearable rule of terror under which they have to live now, must go to a war which will probably cost tens, possibly hundreds of thousands of lives and have unpredictable consequences for the whole region. On the other hand, the recognition of the Republic of Kosova will clarify the legal situation. When Kosova is recognized as an independent state, this also demonstrates the illegality of the Yugoslav occupation of that state. International pressure can then be exercised on Yugoslavia and Serbia to leave that independent state alone and in particular to take their plundering and killing commandos out of it. Thus, recognition provides a clear basis for sanctions and measures under chapter VII of the UN Charta against Yugoslavia, should it continue to occupy and attack Kosova. On this basis, probably far less violence will be needed to liberate Kosova from the terror of the criminal Serbian regime. Politically, recognition will probably be quickly realized to be the simplest way out of the present impasse. Once one or a few important states have given recognition, they will probably be followed by a majority of UN members, both from the West and from the nations of the third world pledged to decolonialisation.
Therefore, Kosova also has to be recognized to avoid violence, as demanded by the UN Charta.
In short: Recognition of Kosovar independence is a valid expresion of the facts of the Kosovar problem in legal terms and provides a clear legal basis for the solution of that problem.
5. Doubtful Succession to Earlier Yugoslav Rights
The state which now calls itself Yugoslavia is not identical with the "old" Yugoslavia existing before 1989. By its attacks on other parts of the old Yugoslav federation, starting with those on Kosova and the violent abolition of Kosovar autonomy in 1989 and continuing with the actions in Slovenia and Croatia, Serbia destroyed that federation, with the result that during the years 1990 and 1991, four of its members (Slovenia, Croatia, Bosnia-Hercegovina and Macedonia) declared their independence, immediately followed by Kosova. The old Yugoslav federation thereby disappeared. Therefore present day Yugoslavia cannot claim to be the successor to pre-1989 Yugoslav (let alone pre-WW I Serbian and Montenegrin) rights to Kosova. Also for this reason, the occupation of Kosova by the present Yugoslavia is an attack on an area Yugoslavia has no right to and therefore violates international law.
6. Charta of Paris, Guidelines on the Recognition of New States
Already the CSCE Charta of Paris demands what later, in the European Guidelines on the Recognition of New States, has been made the basis for the recognition of new states in Europe: European states must be under a rule of law, must be democracies, must honour human rights and guarantee the rights of minorities.<69>
Yugoslavia fulfills none of these conditions. In particular, it severely violates the rights of the Albanians within its realm. Towards them, but also towards other groups, Yugoslavia does not act like a state but like a criminal gang, plundering the area it controls and even enjoying torturing and killing people. In this, the Yugoslav leadership closely cooperates with underworld leaders. Such a criminal organization has no right to protection even though it calls itself a state. As Yugoslavia violates the basic principles of the OSCE and does this in the middle of Europe, the OSCE already has suspended Yugoslavia's membership in the OSCE. The OSCE now must do all it can to get rid of this criminal organization. It may not protect it in any way. In particular, it must not give it the protection of its boundaries which OSCE members are entitled to, the more so, as in particular the Yugoslav boundaries in the area of Kosova have been determined and preserved in violation of international law. Rather, the OSCE, to establish European conditions also in this part of Europe, will have to do all it can to help those European states and groups attacked by this organization and in particular the Republic of Kosova and the Kosovars. The situation is somewhat similar to that in the case of the Western Sahara: Just as many African states have recognized the independence of the Western Sahara,<70> because they do not want the continuation of a colonial regime on African soil, the states of Europe should recognize the independence of Kosova, because the continuous existence of such a murderous dictatorship in Europe as that of Yugoslavia in Kosova violates the Charta of Paris.
7. Justifiable Defence Against Genocide and Violations of the Geneva Conventions
Yugoslav actions in Kosova are apt to "destroy... as a whole or in part a national group", namely the Kosovar Albanians. That means that, just as earlier Yugoslav actions in Bosnia, the present Yugoslav actions in Kosova objectively amount to genocide as defined in the 1948 Genocide Convention. But are these actions also carried out, as demanded in the definition of genocide in the Convention, with "intent to destroy" that national group? The perpetrators now are not as incautious as they were in Bosnia, where they talked quite openly about the annihilation of the "Turks" (i.e. the Bosnian Muslims). But the references to Cvijic, the talk about the "genocidal multiplying of the Shiptars" who must be "sent back" and similar hints (cf. the text before and following notes 49 and 50, above) are quite sufficient for the initiated in Yugoslavia, just as, for the European neo-Nazi, the number 88 clearly indicates the Hitler salute<71>. Such hints prove the genocidal intent behind genocidal acts.
In addition, the Yugoslav actions have resulted in a war to which the Geneva Conventions are applicable (under the 1977 protocols even if this is considered a civil war). Yugoslav forces violate the Conventions by attacking unarmed civilians, including women and children, by annihilating whole villages, destroying the crop on the fields and other criminal acts which have been described above.
Genocide and violations of the Geneva Conventions both are violations of international law, so when Kosova tries to defend itself against these Yugoslav crimes, this is a defense justified under international law, and as part of the legal basis for such a defense against Yugoslavia, the independence of Kosova should be recognized.
8. Duty to Support Justified Defense
As noted above (note 65), some scholars still feel uncomfortable with the principle of self-determination, and this has resulted in a curious insecurity regarding the consequences of the right to self-determination: they admit on one side that "the use of force to suppress self-determination is now clearly unacceptable", but on the other, they claim that assistance to those entitled to self-determination by the "provision of armed help would appear to be unlawful" (our italics).<72> In other words, the cat has no right to catch the canary, but if it does, while the canary might have the right to defend itself, nobody may come to the canary's aid. This, to vary the words of the author just cited, would appear to be a cruel mockery. A right to assist another in his justified defense is the logical consequence of the right to justified defense; it also follows from the reference in art. 51 of the UN Charta to "collective" defense.<73> Moreover, the resolutions of the UN General Assembly on decolonialization determine not only a right, but even a duty to assist.<74> Such a duty may also be derived from the OSCE principles (above, 6.). This does not justify all and every use of force in assistance of those entitled to self-determination. Just as justifiable defense itself, assistance of justifiable defense is not permissible in excess, but only in extreme cases, as necessary defense<75>. The Kosovar case, however, is such an extreme case. As the Bosnian experience has shown, sanctions alone cannot stop Yugoslav genocide; they may even strengthen the regime. Only the threat and, if necessary, the use of force can help.
Besides, the European states have the duty to stop a second genocide by the Yugoslav leadership which was involved already in the genocide of the Muslim population of Bosnia. This duty results from art. 1 of the 1948 Genocide Convention. Again, the only way to stop the genocide which has already started in Kosova is by threat and, if necessary, the use of force. As has been shown above (4. at the end), the recognition of Kosova's independence would provide a solid legal basis for the use of force, since the Republic of Kosova, as a recognized sovereign state, could be more easily assisted in its defense against Yugoslav aggression and genocide. Therefore, the duty to stop, by all means available, another genocide by the Yugoslav leadership is another reason why Kosova's independence should be recognized.
Kosova was annexed by Yugoslavia, against Kosovar resistance, in 1918; in 1923, this annexation was recognized by the commission entrusted by the League of Nations with the determination of the Albanian-Yugoslav border. Both the annexation and its recognition violated the right of the Kosovars to self-determination and therefore violated international public law. Since then and up to the present day, Yugoslavia has done all it could and can to Serbicize Kosova by putting pressure on the Kosovar Albanians to leave their country, sometimes by killing them. This nearly uninterrupted persecution of the Albanians relented only during the last years of Tito's rule and has since Tito's death in 1980 again gotten consistently worse, crossing, in 1998, the borderline to genocide. When a state severely discriminates against a national group under its rule, even persecutes it, the right of that group to self-determination includes the right to secession from that state.<76> The right of the Kosovars to self-determination is therefore not restricted to a right to internal autonomy inside Yugoslavia. It is a right to secede from Yugoslavia, a right to independence. Their declaration of independence in 1991 was therefore legitimate. Since that time, their state, the Republic of Kosova, has achieved a measure of government control, employed to exercise its functions as a state and to defend itself against Yugoslav colonialism. Yugoslav government as exercised in Kosova not only violates the principle of self-determination and in particular that of decolonialization; it also is not exercised as the authority of a state over its citizens but like the violence to which a gang of criminals subjects its victims. It therefore is of relevance only in the field of criminal law and not in that of international public law, it cannot be considered as effective government. The only effective and legitimate government in Kosova is that of the Republic of Kosova. Since that Republic possesses a permanent population, a defined territory and governmental control and is, under its constitution, capable to enter into relations with other states, it is an independent state, presently a victim of Yugoslav aggression. Recognition of this state will provide a clear legal basis for international action against Yugoslav aggression and genocide.
1. Duty of Assistance to Justifiable Defence
As the Republic of Kosova is under attack by Yugoslavia, artt.39 ff. of the UN Charta oblige the UN to interfere. This must be intiated by a decision of the UN Security Council. Such a decision should be sought immediately. It will, however, probably be considerably delayed if not hindered altogether by some of the Council's members who seem to believe this to be in their interest. Relying solely on UN action will, therefore, encourage Yugoslavia to increase its violence so as to expel or kill as many Kosovars as possible before any international action becomes imminent, forcing the Kosovars in their turn to use violence to combat the Yugoslav violence, if they do not want to be killed or to take refuge abroad. In short, to rely only on UN action will increase the violence and therefore have the opposite effect of that aimed at by the UN Charta.
In analogy to art.51 of the UN Charta, Kosova has the "natural right" to defend itself even before the Security Council comes to its aid. (In analogy, as art.51 directly applies only to members of the UN.) As already discussed above, the right to self-defence includes the right to receive assistance and a corresponding right of others to provide assistance. Such assistance in the shape of collective defence, i.e. assistance to a member of a group by other members of the group, is expressly mentioned in art.51 of the Charta.
Therefore, the Republic of Kosova does not have to rely only on its own forces to defend itself. If the main aim of the UN Charta, the establishment of a lasting peace, and the aim, postulated in the CSCE and OSCE documents, of establishing a democractic Europe under a rule of law, are to be taken seriously, the OSCE members collectively and every one of them singly should come to the aid of Kosova even before the Security Council has finally decided to act. That the criminals leading Yugoslavia use the mask of a state to cover their activities is no valid reason to allow them to keep up a genocidal reign of terror in the midst of Europe. The OSCE members are obliged to act also as signatories of the Genocide Convention which obliges them to do everything they can do to stop genocide.
2. Prohibition to Impede a War of Liberation
Under the resolutions of the General Assembly on decolonialization (cf. above, sub 2.3), all UN members not only have to help peoples fighting for their liberation from a colonial yoke, they also must not impede such a fight. Measures to impede the Kosovar fight for liberation from Serbian colonialism therefore violate international public law. Examples of such measures are the freezing or seizure of bank accounts of the Kosovar government or the UçK.
3. Further Measures
Measures should be taken to pursue the criminal and civil liability of the Yugoslav aggressor.
<1>Kosova is the Albanian name. The Serbian name is Kosovo. Below, for places in Kosova, the Albanian names are used throughout (except in citations from Serbian publications). Where the Serbian names differ considerably, they are added. E.g. Pejë=Pec means a town called Pejë in Albanian, Pec in Serbian.
<2>By the term "Serbs", we denote both Serbs and Montenegrins. Strictly speaking, Serbs and Montenegrins should be distinguished.
<3> Since the beginning of 1997, the last two groups have largely left for the countries their ancestors came from, i.e. Croatia and the Adigej Republic in the Russian Federation.
<4> That is, of those vilayets where the majority of the population was Albanian: Shkodë r, Janina, Manastir and Kosova. Present day Kosova was part of the Kosova vilayet which did, however, include a far larger area, stretching from the Bosnian frontier to beyond Skopje and in the Southwest reaching the Drin. Present day Kosova got its boundaries as a Serbian administrative district in 1945.
<5> At least if one excepts an earlier action of Serbia: In 1878 it had (not by the force of its own arms, but with the help of Russian pressure) acquired what now is its southern third, south of Niš . About half of this area, west of the Morava, was inhabited by Albanians. Up to 35.000 of these Albanians were killed, 2-300.000 expelled. The few who remained were expropriated by an "Agrarian Law". (Cf.Shaban Braha:Gjenocidi së rbomadh dhe që ndresa shqiptare [Great Serbian Genocide and Albanian Resistance], 1844-1990, Tirana 1991, pp.51-54, and Cubrilovic, www.kosova-state.org/English/exulsion_of_the_albanians__dr_v.html) But Europe hardly took any notice. In 1910, the Encyclopedia Britannica (11th ed., article Servia) only wrote: "These territories had been occupied, under Turkish rule, by Albanians, west of the Morava ... but after 1878, the Albanians withdrew." (our italics)
<6> Cf. the press reports collected at the time by the Vienna publisher Leo Freundlich in a booklet now reproduced in www.kosova-state.org/German/albaniens_golgatha.html, English translation:www.alb-net.com/juka1.htm. As to the number of the victims, cf. the citations from contemporary documents collected by Braha loc.cit. p.221 ff.; the numbers they give vary in the extreme: a secret Austrian report from Skopje mentions 47.000 victims of the "autumn massacres" of 1912; an Albanian periodical, the Hylli i dritë s of Dec.1st,1913, estimates a total of 80.000 Albanian victims, Koha of Febr.25, 1915 a number exceeding 20.000, a later official Albanian estimate is 200.000. In one of the reports reproduced by Freundlich loc.cit., the number of victims in what was then the Kosova Vilayet is estimated to have reached 25.000, another of those reports puts the number of victims in Prishtina alone (which in 1905 had about 11.000 inhabitants, cf. Encyclopedica Britannica, 11th ed., article Kossovo) at 5000. A Serbian author, Kosta Novakovic, estimates that in 1912-3, the number of Albanian victims "in Kosovo and Macedonia" reached 120.000 (www.kosova.com/expuls/dok5.htm). The Kosova Vilayet had, in 1905, about 1.1 millions inhabitants (Encyclopedia Britannica loc.cit.), but less than half of them lived in present-day Kosova (H.Bajrami, Shpë rngula e shqiptarë ve gjatë viteve 1875-1966, Rilindja May 27, 1990, p.17), which was one of the centers of the Serbian actions; 10% of that population, i.e. about 50.000 victims there seems a cautious estimate, considering the descriptions of massacres in the reports collected by Freundlich from the international press (which certainly did not learn of all the massacres), an estimate also within the boundaries of the numbers, however vague, cited above.
<7> This meant present day Slovenia, Croatia, Bosnia-Hercegovina and Vojvodina. As these had not been under Serbian or Montenegrin rule before the foundation of Yugoslavia in 1918, this interpretation rendered the reference to the areas ceded "since Jan. 1st, 1913" meaningless.
<8> Braha loc.cit. p.335, note 1.
<9> For details, cf. B.Krstic: Kosovo izmedju istorijskog i etnickog prava [Kosovo between historical and ethnic rights], Belgrade 1994, p.79.-The draft treaty had been prepared by Ivo Andric, the later winner of the Nobel prize for literature, who at the time was in the Yugoslav diplomatic service. In an additional internal notice, Andric proposed the occupation and colonization of Northern Albania by Yugoslavia; cf. B.Krizman: Elaborat dra Ive Andrica o Albaniji iz 1939. godine, Casopis za suvremenu povijest, II, Zagreb 1977, p.89; English translation: www.kosova.com/expuls/dok7.htm.
<10> M.Obradovic: Agrarna reforma i kolonizacija na Kosovu, Prishtina 1981, p.222.- Between 1919 and 1940, about 276.000 Albanians were forced to leave Kosova and Macedonia for Turkey, cf. A.A. Bytyç i: Demografia shqiptare në shë njestë r të pushtuesve [Albanian demography as aimed at by the occupiers; cited from Rilindja of 8.8.1998, p.16].
<11> Not including the tens of thousands of Serbs who have come to Kosova as members of the bureaucracy or the police or their families, especially since 1981 and 1990. Also cf. www.kosova.com/expuls/contents.htm, chapter four, nos. 6 and 7
<12>E.g. by S.Stojanovic, an advisor of the former Yugoslav president Cosic, in: Zaš to se nam dogodilo Kosovo? [Why did Kosovo happen to us?], Nedeljni telegraf, March 18, 1998
<13> M.Bakalli, head of the Kosovar communists, stated at the session of the Yugoslav communist central committee in December, 1980, that economic growth in Kosova was at a level of only 46.9% of overall economic growth in Yugoslavia, "and this is a tendency which started in 1947". During the last few years before 1980, the growth of industrial production in Kosova only was one fifth to one fourth of that in Serbia, though the raw materials for Serbia came mainly from Kosova. Average income per head of the Kosovar population was one sixth of that in Slovenia and one fifth of that in Serbia. The percentage of people out of work was 20 times that in Slovenia and two and a half times that in Serbia. 110.000 Kosovars worked abroad. (Kadi Rexha, Fati i luleve, Prishtina 1993, p.175 f., citing Yugoslav statistics.) A main reason for these discrepancies was that large investments in Kosova were made mainly into the production of energy and the mines of lignite and non-ferrous metals which worked mainly for the benefit of other parts of Yugoslavia, in particular Serbia, while little was invested into labour intensive industries and agriculture which considering the high rate of growth of the population should have been given priority. (Cf. v.Kohl, Libal: Kosovo: Gordischer Knoten des Balkan.[Kosovo: Gordian knot of the Balkans] Wien, Zürich 1992, pp.70-75)
<14> The demonstrations had been preceded in the fall and winter of 1980/1 by a wave of arrests (Rexha loc.cit.p.167 f.) During student demonstrations against the deplorable living conditions of the students, on March 11th, 1981, the police arrested several students. The Kosovar communist league chief, Bakalli, promised their release, and when they were not released, a new student demonstration followed on March 26th; the students bore portraits of Tito; some chanted slogans such as "Kosova- republic" and "Kosova for the Kosovars". Suddenly, Serbian special police appeared and bludgeoned the demonstrators, pursuing them even into the dormitories. This led to demonstrations all over the country, including workers' demonstrations. On April 2nd, Serbia proclaimed a state of emergency, sealed off the country and had its police attack the demonstrators with murderous brutality. A Bosnian now living in Hamburg, Mr.Medic from Sanski Most who had in 1981 passed his yearly leave at the seaside close to a holiday home of the police told me that a policeman holidaying there boasted having driven his pick-up into crowds of Albanians and by this alone having killed dozens of them. An Albanian witness saw the police shoot children. (Spiegel 1980 no.16 p.150; also cf. Spiegel 1980 no.6 p.149, v.Kohl, Libal loc.cit. p.83 ff.)
<15> v.Kohl, Libal, loc.cit. p.99. The media campaign did not confine itself to rapes. Albanians were generally described as criminals, and this Serbian propaganda has had its effects even abroad; e.g., a particularly high rate of criminality among the local Albanians is often claimed in Germany even by official sources, though this is not in accordance with the facts.
<16> As stated by an official "Scientific Working Group" in Prishtina on April 1st, 1995, cf. www.yugoslavia.com/Society_and_Law/KOSOVO/GLAVA4.HTM
<17> Sl.l.FRJ (i.e. the Yugoslav official gazette) 1988 pp.40,51 (nos.82-85) and the Serbian Law on Social Care for Children of July 21, 1992, Sl.gl. RS (the official gazette of the Serbian Republic) 1992/49 p.1657, also cf. the ruling of Oct.16, 1992, Sl.gl.RS 1992/75. These statutes are discussed in detail by N.Kelmendi in: Kosova under the Burden of the Serbian Discriminatory Laws, www.alb-net.com/old-alb-net/more.htm#4 = www.kosova-state.org/English/kosova_under_the_burden_of_the_s.html
<18> Because of these and other defects, the decision was brought before the constitutional court of the Kosovar Autonomous Region. The court decided on June 27th, 1990 to start proceedings and suspended the changes in the constitutions of Kosova which had been the consequence of the decision and in the constitution of Serbia which had subsequently been determined by the Serbian parliament on the basis of the Kosovar decision. However, the decision of the court then was not signed by the judges because the Serbian parliament in its turn had, by a law of June 5, 1990, dissolved the Kosovar parliament and goverment and transferred their powers to Serbian authorities. As a result, the Kosovar constitutional court, too, found it impossible to continue its work, even though it might have been argued that that Serbian law did not concern it directly, if one did not consider its judges who had been elected by the Kosovar parliament, as "functionaries" of that parliament. Cf. N. Kelmendi loc.cit.
<19> For this, he was attacked by the official daily "Politika" of May 16, 1990: by demanding rights for the Albanian people in Yugoslavia, the paper wrote, the man had far exceeded his rights as a "guest abroad". This description of the Albanians - at that time, after Serbs and Croatians, the third national group in size in Yugoslavia - as "foreign guests" in Yugoslavia who "behave badly" is now often used and enhanced by the claim that a large part of the Kosovar Albanians (the number given varies between 30.000, 70.000, 400.000 - cif. the "Scientific Working Group" loc.cit. above note 16- and more) had come to Kosova only during and after WWII. There is no evidence for this claim. The head of the last government of the "old" Yugoslavia before its breakup, Markovic, told Sapunxhiu in 1990 that an inquiry of the Yugoslav federal authorities had found a total of 732 immigrants from Albania. (Interview with S. in Zogaj, Shala: Dë shmi pë r Kosovë n, 1989-1991, Prishtina 1995, p.23) Other official Yugoslav data note that a total of 1543 persons had moved from Albania to Kosova, of which 704 persons were still living in Kosova in 1981(cf. the sources cited by H.Islami: Kosova dhe shqiptarë t - ç ë shtje demografike [Kosova and the Albanians - Demographic questions], Prishtina 1990, p.163).
<20> Zogaj, Shala loc.cit. p.76
<21> I.e. 914802 of the 1.051357 voters registered in Kosova at the time. Cf. www.kosova-state.org; v.Kohl, Libal loc.cit. p.122
<22> A Serbian law of July 5, 1990 abolished the parliament and government of Kosova and replaced them by Serbian officials. Further Serbian legislation abolished a number of other Kosovar institutions. For details cf. N.Kelmendi loc.cit.
<23> Cf. N.Kelmendi loc.cit.; Independent Kosova Labour Unions: Exploitation and Selling of the Resources of Kosova, in www.kosova-state.org/English/exploitation_and_selling_of_the_.html; Felicitas Rohder: Kosovo: Krieg, Vertreibung, Massaker. Ein Bericht der Gesellschaft für bedrohte Völker[Kosovo: War, Expulsion, Massacres. A Report of the Society for Threatened Peoples]. Göttingen, August 1998, p.7; Ost-Dienst March 1994, p.45 f.
<24> v.Kohl, Libal, loc.cit. p.136
<25> Duga (Belgrade), March 14, 1998. This report is not very clear; the number given in the text perhaps refers only to Serbian refugees from Bosnia and Croatia resettled in Kosova. To their number then would have to be added the members of the Serbian minority in Albania who have left Albania for Kosova. Also cf. www.kosova.com/expuls/chap4.htm#n6
<26> There are numerous reports in the Serbian press on this; e.g. Nedeljni telegraf (Belgrade) of March 25, 1998: Da li je drzava digla ruke od Srba na Kosovu i Metohiji? [Does the state leave the Serbs in Kosovo and Metohija in the lurch?]
<27> Sl.gl.RS 1991/22; cf. N.Kelmendi loc.cit.
<28> E.g. Muhamet Kelmendi: Realiteti dhe perspektivat e ç ë shtjes kombë tare [Reality and perspectives of the national question], 1966, p.121
<29> Cf. N.Kelmendi loc.cit.
<30> According to Shpend Halili: Ekzekutimi i librit shqip [The execution of the Albanian book], Ora, Stuttgart, June 14, 1996, p.40, 8142 periodicals, 6 trucks with newspapers and about 100.000 volumes were destroyed. The library was then used to house Serbian refugees from Croatia.
<31> Cf. v.Kohl, Libal loc.cit.pp.137 ff
<32> Cf. M.Pirraku: Tetë vjetori i Lë vizjes pë r pajtim kombë tar [Eight years Movement for National Reconciliation], Rilindja Sept.7, 1998; within 6 years, the Gjilan "Community Council to Avoid Negative Phenomena" settled 541 of the 778 disputes brought before it, QIK (www.kosova.com) Sept.22, 1998.
<33> Some details from the reports of the Kosovar Human Rights Committee for the last few years:
1995: 3487 arrests by the police without a court order. Above 11.000 persons manhandled by the police (e.g. all persons arrested have been beaten). 3296 persons were tortured, among them 61 heavily injured, 6 killed. 10 persons were shot by the police or the army. The perpetrators were not persecuted. In 2324 cases, houses and apartments were searched for weapons (there probably were many more cases which went unreported, the victims being afraid of repercussions, should they report the searches); on the occasion of these searches, often the furniture was damaged or destroyed and things of some value were stolen by the police. Only two dailies and one periodical were still allowed to be published in Albanian, but considered not quite legal and frequently impeded in various ways. For the past four years, 270.000 Albanian children in primary school, 60.000 in middle school and 20.000 university students had been getting their schooling in private homes under very primitive conditions. In 130 cases, classes were interrupted by the police. There were 507 cases of teachers or students being mistreated by the police in connection with lectures.
1996: 14 Albanians were killed by Serbian violence or under suspicious conditions (2 tortured to death by the police, 2 died in prison for unknown reasons, 3 killed by Serbian colonists, among which one with the assistance of the police, 2 killed by other Serbs, one shot dead by soldiers, 5 found dead). The perpetrators were not persecuted. 1712 Albanians arrested without court order, usually during searches for weapons; in most cases no weapons were found or the people owning them had a licence. There have been 809 searches of houses for weapons, which were often used as a pretext to destroy the furniture, to steal valuables and to beat men up before their children. A total of 5197 cases of severe mistreatment and torture was reported; among the victims were 240 children, 269 women, 464 politicians and members of human rights organizations, 15 journalists, 211 teachers who were attacked because of their teaching activities. 54 police attacks on schools were reported. 201 cases of the police plundering merchants were reported; the actual number of such cases probably was several times that reported. Conditions regarding the press and education remained unchanged.
1997: Among the victims of 1740 cases of police torture, there were 79 children, 258 women, 56 old people, 413 members of political and human rights groups, 40 Albanian journalists, 295 teachers attacked because of their teaching activities. 587 of the victims were seriously hurt, 5 killed (one among them got his eyes dug out). 12 people were shot dead by the police, one killed by a Serbian with a knife; there were 18 people killed under unclear circumstances. In 57 cases, the police entered schools and university rooms by force, took away documents and manhandled teachers and students. 596 Albanians were arrested without a court order, mostly during 427 searches for weapons, carried out in the same way as before. 228 cases of merchants being robbed by the police were reported; the real number of such cases probably was several times higher than that reported. Several large political court cases against Albanians. E.g. on Dec.16, 1997, 17 Albanians received prison sentences between 4 and 20 years (a total of 186 years) on the sole basis of admissions made under torture and retracted before the court. The rights of the defence were severely infringed upon. No change regarding education and the press. (Source: Annual reports in http://albanian.com/kmdlnj/)
<34> Example of such reports: Red Brigades of the Kosovo, NIN (Belgrade) Dec.18, 1997. This report is an interview with B.Spasic, a former state security officer formerly responsible for attacks on "enemies" of the regime abroad. In other interviews, B.Spasic boasted about actions he directed in Germany and Switzerland, for which he claimed to have used "excellent specialists" from the Belgrade underworld.
<35> Felicitas Rohder loc.cit. p.7 f. with references to other sources. Since then, mainly Hungarian politicians both from the Vojvodina and from Hungary proper have repeatedly protested against the mobilization of Yugoslav Hungarians for the war in Kosova. There also have been protests from the UNHCR against the use of Serbian refugees from Croatia, and from the Montenegrin government against the use of Montenegrin soldiers in this war. Yugoslav Romas in the Yugoslav forces who had nobody to protest for them deserted nevertheless.
<36> Some of them now also can be found in www.kohaditore.com/ARTA/drenica_ChildrenAndWomen.htm
<37> Statistics from the "sector for emigration" of the largest Kosovar party, the LDK, as of Sept.2, 1998, on www.kosova.com. The numbers of refugees published by international relief organizations have since the beginning of the hostilities been always about half of those given by Albanian sources. The reason seems to be that the international organizations often do not count people who have found refuge with relatives, and that they cannot reach many places, such as the village of Dubovik mentioned in the text.
<38> There have been many reports in non-government Serbian publications concerning these links between the underworld and the government, e.g. cf. Filip Š varm: Znamenite zahrane [Burials with special meanings], Vreme (Belgrade), July 11, 1998
<39> What happened in the small town of Rahovec (Serbian name: Orahovac) seems to be a case in point. The town remained quiet until the middle of July, 1998, even though the center of the area liberated by the UçK, Malishevë , was only a few kilometers away. It seems that Baba Sheh Muhadini, the local head of the Bektashi (a liberal Muslim sect), an old gentleman respected by both Albanians and Serbs, had arranged an understanding between the Uç K and local Serbian police not to fight each other in Rahovec. Then there suddenly appeared reports in the media that the Uç K was trying to occupy Rahovec as the first town to be held by them. What actually had happened was that on Friday, July 17, in the morning, several volleys of shots were heard which did not hit anything. Witnesses later said they felt like watching an American Western. They did not see where the shots came from. The Albanians were alarmed and hid in the basements. Serbian police then started shooting at the Albanian quarters of the town. On Friday evening a small Uç K group which had been alerted appeared and tried to defend the Albanians. They were unprepared, did not have enough ammunition and were no match for the strong Serbian forces reaching the town on Saturday; on Sunday evening, they retreated. Nevertheless, the media reported on Monday and Tuesday that the Uç K "still holds the town". In the meantime, especially Arkan volunteers shot at anybody who moved on the roads. They also entered the community hall of the Bektashi where many people, especially women and children, had sought refuge hoping to be protected by Baba Sheh Muhadini, and killed everybody there, including the unarmed Sheh. The corpses then were disposed of, then reporters were allowed to enter the town to document the Serbian victory over the Albanian terrorists. Cf. R.Bourdreaux: Both Sides Lose Symbol of Trust in Kosovo, Los Angeles Times July 29, 1998; reports of the Kosovar Human Rights Committee in the news concerning Rahovec in the Kosovar newsservice QIK, of July 23.,25.,26., 1998; Report by Albatros Rexhaj, Gazetë shqiptare August 14, 1998, p.6 f.; reports by witnesses reported by Ilire Zajmi, Gazetë shqiptare August 28, 1998, p.13)
<40> Examples in B.Krstic: Kosovo izmedju istorijskog i etnickog prava [Kosovo between historical and ethnical right], Belgrade 1994, pp.212, 214, 218, 222
<41> Vecernje novosti, Belgrade, April 30, 1998
<42> A. Uroševic: Kosovo, SANU (i.e. published by the Academy), Belgrade 1965; D.Bogdanovic, Knjiga o Kosovu [The book on Kosovo], SANU, Belgrade 1985; Iliri i Albanci [Illyrians and Albanians], SANU 1988. Amply citing from Bogdanovic but rather more cautious: B.Krstic, loc.cit. p.73
<43> To the Serbian politician Draškovic we owe what probably is the maddest of these theories. He claims that the Albanians actually had been Azeris who had left their native Azerbeidjan as Christians fleeing the Turks, but had been islamicized on their way West. This fantasy probably was built upon the fact that part of the Caucasus was called Albania in ancient times. More serious propagandists claim that the Albanians are descendants of the ancient Thrakians (or rather that the Albanian language developed out of Thrakian) living in what is now European Turkey - a theory difficult to prove or disprove, as next to nothing has remained of the Thrakians' language.
<44> B.Krstic, loc.cit. p.59 and note 22 (citing S.Corovic: Istorija Jugoslavije [History of Yugoslavia], Belgrade 1989, pp.156 f.) calls the Nemanjid state the "common state of the Albanians and the Serbs which both identified with". The Venetians, Corovic claims, called a Nemanjid army the "Albanian army", as its soldiers were mostly Albanians.
<45> Cf. the many sources cited by H.Islami, loc.cit. pp.17-34.
<46> E.g. a proclamation of Leopold I of April 6, 1690; Haus-, Hof- und Staatsarchiv, Wien, Illyrico-Serbica, Fasz.I/16, II, 1937; also cf. J.v.Hammer: Geschichte des Ottomanischen Reiches, vol.3 (Pest 1835), p.838; M.E.v.Angeli: Die kaiserliche Armee unter dem Ober-Commando des Markgrafen Ludwig von Baden in den Feldzügen 1689-1692 gegen die Türken, Mitt.d.k.k.Kriegsarchivs, 2.Jhrg., Wien 1878, p.178; R.Gerba: Die Kaiserlichen in Albanien, Mitt.d.k.k.Kriegsarchivs, NF 2.Jhrg., Wien 1888, p.148
<47> Cf. H.Islami loc.cit.p.32 and note 115
<48> R.Lukic, Znacenje Kosovske borbe [The Meaning of the Kosovo Battle], Pravni zivot 1989, no.6-7, p.957.- An interesting sidelight on that myth is provided by the explanation given in it for the name of the country, Kosova, in Serbian: Kosovo. The battle took place on the Fushë e Kosovë s = Kosovo polje, i.e. the Plain of Kosova. As kos is the Serbian word for blackbird, Kosovo polje may also be translated as Plain of the Blackbirds. According to the myth, the Serbian heroes who died in that battle turned into blackbirds who with their sad songs now continue to lament the loss of the Serbian empire to the infidels; therefore Kosovo got this name - a purely Serbian name without any Albanian root. Certainly a beautiful story; but as, at least until recently, no blackbirds lived permanently so far south and as anyhow, until the middle of the 19th century, the European blackbird has been a shy forest bird, while the Kosova plain is a densely populated agricultural plain, this is a story which must have been invented by somebody who did not know the birds of Kosova, therefore probably had never been there.
<49> Duga (Belgrade), March 28, 1998: Akademsko Kosovo. For the theories of Cvijic and his disciple Cubrilovic, cf. the Memorandum of the latter, loc.cit.(note 5). In Serbian, "Arbanese" and "Shiptars" are disparaging terms for the Albanians, about whom Rakocevic repeats nonsensical prejudices. Kosovar Albanians are neither fundamentalist Muslims (in fact, though a majority are Muslims, many are Catholics, e.g. Mother Theresa's family was Kosovar Albanian; some are orthodox Christians) nor polygamous. When they still live in a village, as the majority of them do, under traditional conditions and in very stable marriages, they often have a large number of children - just as those members of other nationalities of Tito's Yugoslavia who still lived under similar conditions. Kosovar Serbs, formerly also mainly farmers living in the countryside, after WW II flocked to the cities where they found employment far more easily than the Albanians. City dwellers, both Serbs and Albanians, had far less children. Therefore, between 1948 and 1981, the number of Kosovar Serbs rose by 22%, but that of the Kosovar Albanians, in spite of their considerable emigration, by 146%, and their share of the population rose from 69% in 1948 to above 90% today. (For details, cf. H.Islami, loc.cit. p.87 and chapter 3). A similar demographic development as in Kosova could be observed in the Vojvodina; there, too, a national group living under rural conditions had a higher birth rate than another mainly urban group, and this was one of the reasons why the shares of these groups in the population changed. However, in the Vojvodina, the Serbs were the group growing faster and the Hungarians were the group falling behind, so nobody there talked about a "genocidal increase".
<50> Chris Hedges: Albanian Resistance Turns Violent in Kosovo. New York Times, Febr. 17, 1997
<51> Cf. the "results" of the official "Scientific Conference Working Group", loc.cit. above (note 16)
<52> Immediately after the liberation of Belgrade in 1944, Cubrilovic, in a memorandum to Tito, proposed to "cleanse" the new "democratic federal Yugoslavia" from all minorities and especially the Germans, Hungarians and Albanians; in this cleansing, he said, the Soviet Army might provide "brotherly help" (H.Islami, loc.cit. p.71 ff.). With regard to the Albanians, at least, his advice was not followed at the time, even though he became a minister in the new government. Since 1989, though, the settlement of large numbers of Serbs and Montenegrins in Kosova has been propagated officially, even though Kosova was already overpopulated, while in Serbia, the villages were dying out. E.g., the president of the presidium of what then still was called the "Autonomous Region of Kosovo", Jovanovic, a Serb, proposed the settlement of 300.000 Serbs in Kosova (Interview with J., Jedinstvo, Prishtina, Dec.28-30, 1989). In 1990, the Serbian parliament passed the "Program to Establish Freedom, Equality, Democracy and Prosperity in the Autonomous Region of Kosovo" of March 30, 1990, Sl.gl.RS 1990/15, which provided the basis for the policy of Serbicization implemented during the following years (for details, cf. N.Kelmendi, loc.cit, and www.kosova.com/expuls/chap4.htm). The Chetnik leader and present vice president of Yugoslavia, Š eš elj, even proposed to get 100.000 Serbs to move to Prishtina by making it the Yugoslav capital, so that federal Yugoslav officials and their families would have to live there (Islami loc.cit. p.173).
<53> Duga, March 14, 1998
<54> Already in 1910, the 11th edition of the Encyclopedia Britannica, article Albania, estimates that Albania (by which the Encyclopedia understood the Albanian vilayets of the Ottoman empire) had a population of 1.5-1.6 people, among which 1.1-1.2 Albanians, while Serbia (in the article Servia) is said to have had a population of 2.75 million, of which four fifths, i.e. 2.2 million Serbs. In 1990, there were 8.1 million Serbs in Jugoslavia, not counting the 580.000 Montenegrins (Enciklopedija Jugoslavije, 2nd ed., 1990, article Jugoslavija) and, in both Jugoslavia and Albania, a total of 5.6 million Albanians (H.Islami loc.cit. pp.50, 58).
<55> Cf. Günter Decker: Das Selbstbestimmungsrecht der Nationen [The right of nations to self-determination], Göttingen 1955, p. 159 ff.,: Völkerrecht. Lehrbuch. [International public law. A textbook]. By a collective. [East] Berlin 1973, vol.1 p.271. However, Stalin's definition of a "nation", i.e. a people with a right to self-determination, also fits the Kosovars: "A nation is a stable community which has been formed in the course of history on the basis of a common language, territory, economic life and the psychical characteristics apparent in a common culture." (Marxism and the national question, 1913, cited from Decker loc.cit., text to note 16)
<56> Even though they were third in size among the different nationalities of Tito's Yugoslavia and far more numerous than several other groups who had their own republics. E.g. cf. R.Markovic, Zašto Kosovo ne moze postati republika [Why Kosovo cannot become a republic], Pravni zivot (Belgrade) 1989, no.6/7, pp.1017 ff.
<57> Société des Nations, Journal officiel, suppl. spécial no.3 (October, 1920): La question des îles d'Aaland, Rapport de la commission des juristes.
<58> Cf. O.Luchterhand: Das Recht Berg-Karabaghs auf staatliche Unabhängigkeit aus völkerrechtlicher Sicht, Archiv des Völkerrechts 31 (1993) p.35 ff, with numerous references to other authors.
<59> "In the 18th century, it became a universally recognized customary rule of the Law of Nations that private enemy individuals should not be killed or attacked", L.Oppenheim, H.Lauterpacht: International Law. A Treatise. 7th ed. 1952, vol. II, p.346. This rule had, in 1907, been substantiated by the Convention with Respect to Laws and Customs of War on Land, passed by the 2nd Hague Peace Conference of Oct. 18, 1907, of which most states existing at that time, including Serbia, Montenegro and the Ottoman Empire, were signatories (even though, as most other signatories, these three states then neglected to ratify it). Art. 46 of that Convention demands that "family honour and rights, individual lives and private property, as well as religious convictions and liberty, must be respected". Art.25 outlaws attacks on towns, villages and buildings which are not defended. Art. 56 prohibits destroying or damaging religious, charitable and educational institutions and historical monuments. - The Convention Concerning the Opening of Hostilities also signed at that conference demands a declaration of war to start hostilities. This too was at the time considered a generally accepted principle of international law only restated by the Convention.
<60> For Yugoslavia, cf. S.Jovanovic: Je li Drzava SHS bila stara ili nova drzava? [Was the State of the Serbs, Croats and Slovenes (i.e. Yugoslavia) a new or an old state?], Pravni zivot (Belgrade) 1991 no.5/7, pp.695 ff. M.Pavlovic (Drzavnopravni problemi oko nacina ujedinjenja 1918 [Problems of state law concerning the manner of unification in 1918], loc.cit. p.679 ff. disagrees, he considers the Yugoslavia of 1918 only an extension of Serbia; but he admits that this view is hardly in accordance with the ideas at least of the Croat and Slovene politicians participating in the founding of Yugoslavia in 1918.
<61> The drafters of the Declaration evidently had in mind mainly overseas colonial situations which still were an important problem at the time. Therefore, the paragraph cited mentioned only distinctions "as to race, creed or coulour". This was soon considered insufficient. Therefore, the UN World Conference on Human Rights convened by the UN in Vienna in June, 1993 and attended by the representatives of 171 states "solemnly adopted" the Vienna Declaration of Human Rights of June 25, 1993 which, in art.2, 2nd para., emphasizes the rights of peoples "under colonial or other forms of alien domination or foreign occupation" and, in art. 1, 6th para., while referring explicitly to the Friendly Relations Declaration, restated the rule cited in the text above with one small change: instead of "distinctions as to race, creed or colour", the text now demands that governments represent the whole people of the territory "without distinctions of any kind" (our italics).
<62> Blerim Reka (Argumentet ndë rkombetare pë r vetë vendosjen e shqiptarë ve, Rilindja, May 4, 1998, p.12) sums up recent American literature (in particular R.Howse, K.Knop: Federalism, Secession and the Limits of Ethnic Accomodation: A Canadian Perspective, New Europe Law Review, vol.1 no.2 pp.269, 289 ff.) which, starting from the cases of Quebec and the newly independent nations of Eastern Europe postulates three conditions under which the right to self-determination may turn into a right to secede: (1) acquisition of the area by force and against the will of the inhabitants, (2) repressive treatment of the inhabitants by the state and with the support of the nation ruling that state, and (3) a clear and public declaration of the will to secede. In Kosova, Reka states, all three of these conditions are present.
<63> E.g. cf. J.Schulz, K.Mann: Resolutionen zum Selbstbestimmungsrecht der Völker [Resolutions on the right of self-determination of peoples], Berlin 1990, i.e. published after the fall of the Berlin wall but still based on the old views of its East German authors. In their introduction (p.18), they write that the principle of self-determination refers to the dissolution of foreign and colonial rule in Asia, Africa and Latin America; now, in 1990, "it can be stated that the fight of peoples for independence has been more or less concluded, as more than a hundred states have been born out of the collapse of the old colonial empires", even though "there still are remainders of foreign colonial rule, such as in Namibia and in a number of other small territories". Clearly, the authors never thought of the Soviet empire as a place where self-determination might play a role, even in 1990, when that empire evidently was being pushed over the edge by its nations clamouring for self-determination.
<64> While Yugoslavia or Serbia do not call Kosova a colony, the Serbs settled there are officially called colonists.
<65> It should be noted that not only Soviet and Soviet Satellite scholars have tried to limit the principle of decolonialization. Western scholars also have done so and even gone beyond that to limit the role of the principle of self-determination in general to the decolonialization of the European colonial empires overseas. (On the discussion regarding the area to which the principle of decolonialization is to be applied, cf. Oppenheim's International Law, 9.ed. London 1992, ed. by R. Jennings and A.Watts,vol. 1, p.290 ff.,in particular note 32, concerning the case of Lithuania,with numerous further references.) Behind this attitude lies the uncomfortable feeling conservative scholars have had towards the principle of self-determination ever since its introduction into international public law, as this principle broke with the old rule that (except for the Pope) only states could be subjects of rights in that field of the law. Where self-determination is limited to colonies, there is at least a clearly defined territory which could easily become a state, so these scholars find self-determination for such a proto-state still tolerable. M.N. Shaw, International Law, Cambridge (England) 1991, pp.176-178 is an example, and his efforts to prove his point are worth studying. The recognition of quite a number of new European states after WW I, always based on the principle of self-determination, he passes over in silence, except for a short reference to the treaties which the Soviet Union "concluded with" the Baltic states, which "noted" this principle (Shaw loc.cit. p.172. Actually, these were the treaties by which the USSR recognized the independence of the Baltic states on the basis of this principle). In the Aaland Opinion, Shaw claims, self-determination was treated not as "a legal rule of international law" but as "purely a political concept", a view any reader of that Opinion will have difficulty to accept. As a legal rule he sees the principle active only after WW II, and only in the decolonialization of the old European colonial empires outside Europe. In other words, a principle of public international law which has been introduced by Wilson to solve what at the time were exclusively European problems now suddenly and for no very clear reason is limited to non-European cases. When treating principles of law and in particular principles of international public law, their history should not be disregarded in this cavalier fashion.
<66> Shaw loc.cit, p.249
<67> In other words: In Kosova, Yugoslavia and Serbia are a "failed state" as defined by D.Thürer ("The Failed State", Berichte der deutschen Gesellschaft für Völkerrecht, Bd.34 - 1996 - pp.9ff, 12 f.) A "failed state", such as Yugoslavia/Serbia in Kosova, is no longer able to perform acts valid under international law. The failed state doctrine, however, has until now discussed only cases such as Somalia, where there existed only one state which now has "failed", while in Kosova, two concurring states coexist, of which only one has failed. This should, however, not hinder us to use the principles developed by the practice concerning failed states for the recognition of new authorities in the area. As M. Herdegen (Der Wegfall effektiver Staatsgewalt. The Failed State, loc.cit. pp.49 ff,55) points out, such practice considers the will of the people as the most important source of international legitimacy. Any new state authority, therefore, can be legitimized only by a democratic process. The consequences for Kosova are obvious.
<68> By African countries which do not want the continued existance of a system of colonial rule in Africa. Cf. Oppenheim's International Law, loc.cit. vol.1 p.132 with further references. European countries seem less sensitive where colonial rule on their continent is concerned, as the Kosova case shows.
<69> For the influence of the European principles on the right to self-determination, cf. Oeter: Selbstbestimmungsrecht im Wandel. Überlegungen zur Debatte um Selbstbestimmung, Sezessionsrecht und "vorzeitige" Anerkennung. [Changes concerning the right to self-determination. The debate on self-determination, the right to secession and "premature" recognition.] ZaöRV 52 (1992) p.771
<70> Cf. note 68.
<71> I.e., Heil Hitler, H being the eigth letter in the alphabet.
<72> Shaw loc.cit p.701 f., with references to other authors.
<73> Verdross, Simma: Universelles Völkerrecht [Universal international public law], Berlin 1976, p.648, lit. b.
<74> This has also been pointed out by Shaw (loc.cit., text to note 97). Cf. in particular Resolutions 2649, 2189, 2326 and 2548.
<75> Verdross, Simma loc.cit. p.239. - The conflict of principles often encountered in such cases and apparent also in the Kosova case is discussed succinctly by T.Bruha, M.Krajewski, article Bürgerkrieg [civil war] in: Ergänzbares Lexikon des Rechts[Loose leaf encyclopedia of law], Neuwied, April 1998 (4/120), p.3: In a civil war, these authors write, assisting a government rejected by the people would violate the right of the people to self-determination provided by art. 1 2nd para of the UN Charta. On the other hand, assistance to the rebels would violate the principle of non-interference determined in Art. 2 7th para. of the Charta. However, in exceptional cases assistance to one side would still be in accordance with international public law, namely in those cases where the other side had severely violated that law, e.g. by acting as a colonialist or racist regime. - In Kosova, we have such a case, as has been discussed above (sub 7.)
<76> K.Doehring: Das Selbstbestimmungsrecht der Völker als Grundsatz des Völkerrechts [The right to self-determination of peoples as a principle of international public law]. Berichte der DGVR 14 (1974), p.30 ff.; Oeter loc.cit. p.759 and note 84, with further references.
(Written in September, 1998)
Postscript [August 17, 1999]
I regret I have to add a postscript to what I wrote a year ago.
At the core of my argument for Kosovar independence then was what I wrote in II,3 and in note 67:
In Kosova, two "state powers" existed side by side. One was the Republic of Kosova, based on democratic elections which had produced a parliament, a president and a government, as well as local governments, which, supplemented by basic organs of justice and supported by the will of the people, governed the country as best they could under very difficult conditions, providing a system of education, health care and social welfare. The other was Serbia/Yugoslavia, which attempted to control Kosova by terror, against the will of the people, without democratic legitimation, committing not only multiple robberies and murder, but genocide. I had argued that the latter could no longer be considered a state, that it was at best a "failed state", in fact a criminal gang. In a failed state situation, the will of the people is the most important source of international legitimacy. The Republic of Kosova was legitimized by the will of the people and therefore the only legitimate state in the area.
After I had written my paper, the Serb/Yugoslav gang broke into a paroxism of crime on a scale which had seemed unthinkable even after all that had happened before. This finally made the international community act and rid Kosova of these criminals. What then happened to the Republic of Kosova?
Within two and a half months, the Serbian gangs had killed between ten and forty thousand people. But many of the deputies of parliament, the members of government, the president had survived. Freed of oppression, do they now lead the country into a fully democratic society?
A "Provisional Government" has established itself, based on some groups of the Kosova Liberation Army (KLA) - not on those groups in Llap or Dukagjin, though, which gained the few successes in the armed fight against the Serbs, but mainly on the "military police". The members of this "police" now are carrying passes entitling them, in the best Gestapo style, "to carry arms, to arrest people, to enter and search private dwellings and to confiscate goods that are needed". In Prizren, German soldiers discovered a torture chamber where this "police" (among them a woman) was torturing a group of Roma; an elderly Roma had already died.
This was not an "isolated incident". All over the country, members of the minorities - Serbs, Roma, Slav Muslims, Albanian Catholics - are threatened, attacked, even killed. Serb and Roma houses are burned down house by house and street by street. Serb churches are being destroyed; a Serbian nunnery has been attacked, a young nun violated. Old Serbs who are told to leave but have nowhere to go have been shot dead through the doors of their flats. Serbs have been denied medical care, and Albanian doctors cooperating with Serbian doctors have been threatened.
Though witnesses often say that the perpetrators of these crimes wore KLA uniforms, such acts usually are blamed on people who want to revenge themselves. Of course, when your wife, your children, your neighbours have been killed, your house has been burnt down and you have been hounded out of the country by Serbian paramilitaries, you won't feel very friendly towards Serbs. But the Serbian criminals have long since fled the country. You have to clear your fields from mines, rebuild your house, find something to eat. Where would you find the time to hunt down and kill e.g. an elderly, ill Serbian woman who personally has not hurt you in any way?
Moreover, these crimes occur on a scale which shows that these are not individual acts of revenge but an organized campaign.
Not only the minorities are threatened. From its very beginning, this "military police" also attacked those Albanians who did not agree with them; it made its first appearance (as "secret military police") in 1998, when it "arrested" some Albanian party politicians, while the speaker of their KLA wing, Jakup Krasniqi, declared that this was not a time for political parties. Even murders of Albanian opponents started long ago (though no KLA leader openly accepted responsibility for them) and included that of the Minister of Defence of the Republic, that of several KLA commanders and that of critical Albanian journalists, starting perhaps with the murder of Enver Maloku, the founder of the Kosova Information Center. By now, everybody is afraid. The many critics of the new order dare speak out, if at all, only abroad. Even Veton Surroi, an able journalist deservedly famous for his courage under Serb occupation now only notes mildly that he "does not like nor want to defend the injustices of our side" (towards the Serbs; nobody deigns to mention the Roma).*
The "temporary government" was supported from its start by both the Albanian government (and the Albanian Socialists, the former Communists) and the two US government radio stations in Europe (Voice of America, Radio Free Europe). It now justifies its existence with an informal agreement reached among the Albanian participants of the Rambouillet conference to establish a sort of government of national unity. But the most important partner of that informal agreement, and the only one with democratic legitimation, the LDK, now declines to participate in this "government"; and Rambouillet was stillborn anyhow. The "temporary government" and those behind it have no democratic legitimation at all. They base their power on fear and fear alone, fear in particular of their "military police".
So we now again have a situation where a group of criminals reigns by fear, robbing and expelling the minorities, scaring opponents into silence and submission. Thanks to KFOR, the scale of these crimes still is entirely incomparable with what happened under the Serbs. But in essence, and in their effects, they are the same. The main difference is that now, faced with this new threat, the legitimate organs of the Republic of Kosova, once so courageous in opposing the Serbian gangsters, are silent.
This is destroying the main legal basis of the argument for the independence of Kosova. If what now poses as the Kosovar goverment is as illegitimate and in essence as criminal as the Serbian gang which terrorized the place before, what is there to choose between them, legally or otherwise?
F. Muenzel, August, 1999
- Interview of A. Borden with Surroi, Java shqiptare, 14.7.1999, pp.10-11. Surroi adds that "it would be incorrect to think that the Albanians insinuated the leaving of the Serbs". This is quite true. It is not "insinuated" that the Serbs should leave. It is made abundantly clear. Surroi himself notes that he is "convinced of the collective responsibility of this [i.e. the Serbian] people", but that "without doubt, they are invited to bear the risks of the building of a real democracy together with us". This hardly is a very convincing invitation.
Post-Postscript (August 20, 1999)
I am very happy that I have to correct myself on one point: I misjudged Veton Surroi. In his newspaper, Koha ditore, the most influential paper in Kosova to-day, he has just published an inspired denunciation of the crimes against the minorities - not one of those lukewarm notices of disapproval we are getting from the officials and some intellectuals, as a sop to the West, while before Albanian audiences, the same people or their lieutenants are saying just the opposite, no, this is an impassioned plea for the persecuted, a warning that Albanian opponents will be the next on the list, an outcry to stop this slide into fascism, this great blot on the honour of Kosova. Many ordinary Kosovar Albanians are already protecting and helping the persecuted, at great personal risk. But this is the first time (not only in Kosova, but all over the region) a prominent, even powerful intellectual and politician has spoken up loud and clear for a humane society, even though this meant denouncing the crimes of his own group. This is a bright ray of hope for Kosova that the tide may still be turned.
Surroi wrote (Koha ditore, Aug. 18, page 1; translated from Albanian):
The Bells of Shame
An old woman, beaten to death in her bathtub. A 2-year-old child wounded while its mother is murdered. Two kids killed by grenade launchers. A woman who does not dare to give her name in public because she is afraid that those who tried to violate her will knock on her door again. These are [Kosova] Serbs during the last four weeks. These are the quiet people, locked in their flats, scared to death, living in an atmosphere where every sound seems a threat, where every car that stops might take you away to your death. Add the old couple, pensioned off long ago, who have nothing to eat and are afraid to go to the market to buy food because their deficient Albanian would be noticed. Add to this that they also have no food because their neighbours are afraid even to buy food for them, having been warned not to "feed Serbs".
I know how the Serbs feel these last four weeks, because I and nearly two million other Albanians have been there before them. Not to mention the Roma who also are persecuted on openly racist grounds. I recognize their feelings: Every car that stopped before our doors was a potential danger; every sound was the announcement of inevitable death; from our Serbian neighbours, little or no help could be expected; the radio told us that the Serbian government had given its units the right to kill automatically, at will, anybody, even children and old people. I cannot hide my shame that now, for the first time in Kosovar history, I must learn that Kosovar Albanians are able to commit monstrous crimes. I cannot be silent. I have to speak out and say that for us as a nation it is a reason for great anxiety that for the first time, even the most basic rule of our moral code has been broken: the rule that children, women and old people are inviolable. I know the defence everybody puts forward automatically: that we have passed through a barbaric war in which Serbs were responsible for the most heinous crimes and in which the intensity of violence has left a thirst for revenge in a part of the Albanian people. But this is no justification. We have seen the flight of those Serbs who had served their rulers and used every kind of violence against Albanians, of those Serbs who had to fear the revenge of the Albanians who now had to open the graves of their families. But the violence to-day, two months after the arrival of NATO forces, is not only an emotional reaction. We are faced with an organized system - or with organized systems - of violence, a spiral of violence against the Serbs; and we are faced with a thinking behind this violence which holds that every Serb must be punished for what happened in Kosova. This thinking is called fascism. This is the thinking against which the people of Kosova stood up in ten years of fighting against Milosevic. This is the thinking against which, in the last phase of the battle, the KLA had to appear to show that the Albanian people of Kosova was ready even to take up arms in its struggle.
The Serbian victims to-day and their life in danger and fear, the threat against their community, are a shame not only for a small part of our people. This ignominy we will have to bear collectively, it will dishonour us all, who only some months ago flooded the television screens all over the world with our sufferings. It will dishonour even the Albanian victims of Kosova, those children, women and old people who have been killed only because they were Albanians.
The others, Europeans and Americans, will not blame us because we did not defend a "multiethnic Kosova". After all, even before the war, Kosova was just as multiethnic as Slovenia; and who is talking about a multiethnic Slovenia? But they will accuse us that from being the victims of the greatest persecution at the end of this European century we so very easily changed into those that allowed (and comparative numbers or intensity are of no importance here) that others also are persecuted in Kosova, that fascism is repeated.
And they will be right. And those who believe that this will stop with the leaving of the Serbs will be undeceived. It will be the turn of the Albanians again, but this time as victims of other Albanians.
Is this what we fought for?