and, speaking of Russia....and the ICJ

The recent advisory opinion by the ICJ regarding Kosovo's unilateral declaration of independence from Serbia will pose a problem for Moscow.  It's statements to the court may come back to haunt it.

Moscow stated that:

General international law prevents Kosovo from declaring independence, bearing in mind that the people of Kosovo do not enjoy a right to self-determination.

Russia rejects claims coming from those countries who support the unilateral declaration that international law "does not regulate independence declarations", and reminds that the UN Security Council declared Northern Cyprus and Rhodesia's independence to be illegal, since secession is forbidden outside the colonial context.

Violations of human rights of Albanians during the 1990s cannot be the justification for a unilateral declaration of independence in 2008.

Russia supported, to the extent of encouraging and sending troops to assist, breakaway regions of Georgia - Abkhasia and S. Ossetia.  At the time of Kosovo's declaration, Russia declared that acceptance would have consequences.  Many commentators pointed to the invasion of Georgia, ostensibly to protect the populations of Abkhasia and S. Ossetia from Georgian ethnic cleansing and prevent Georgia from reasserting central authority, as pay-back for Kosovo.

Yet the position that Russia's ambassador presented to the court does not reflect its positions regarding Georgian sovereignty and spells trouble for Chechnya and other non-Russian regions of the Federation.

It's first statement, that general international law does not allow Kosovar independence because the people have no right of self determination is not, in fact and law, true.  The court had previously decided in the case of East Timor that the right of self-determination exists in all circumstances under the fundamental principle of jus cogens - a principle of international law which is accepted by the international community as a norm from which no derogation is ever permitted.  Russia needs to consider the impact of this position on Chechnya.

The second point refers to a legal position that such unilateral declarations of independence can only be asserted within a colonial context.  This argument has been raised before, but has no general support in international law.  In any case, the advisory opinion distinguishes the Kosovo declaration as not an issue between nation states, but an internal matter which was triggered by the stripping of all of Kosovo's rights under the Yugoslav constitution under the Milosevic regime.  If Russia wants to pursue this position of independence only within a colonial context, how far back should we look?  Chechnya could, arguably, be considered a colonial possession, conquered and re-conquered several times in the  19th century by imperial Russia.  On the other hand, the Russian argument fails if applied to Abkhasia and S. Ossetia since they could not be considered colonies, ever, of Georgia.

Citing Rhodesia and Northern Cyprus in support of the illegality of the unilateral declaration of independence, Russia ignored the unique circumstances of each of those actions one of which involved the attempt to continue an oppressive colonial regime and the other which is political in nature. The political component is ignored by those, like Russia, who tend not to differentiate between the court's ruling which recognized the legality of the declaration as opposed to political recognition.  This is crucial for Cyprus, where the Greeks are opposing opening of any new chapters in EU accession talks for Turkey despite the commitment of the EU to do so based on the 2004 vote by Turkish Cypriots to reunite the island, while the Greeks voted it down. Only Turkey recognizes Northern Cyprus - a very similar situation to that faced by Russia in Abkhasia and S. Ossetia which have been recognized by Venezuela, Nicaragua and some insignificant island in the Pacific. Politically, it is unlikely that Northern Cyprus will be recognized as independent by anyone other than Turkey even if an argument can be made for legal recognition.

Kosovo is recognized, so far, by 69 countries, including the US, Germany and Turkey. Politics matters.  Citing Rhodesia and Northern Cyprus is an unwise legal position since both can be used to show the illegality of Abkhazia's and S. Ossetia's unilateral declarations.

Violation of human rights in the 1990s cannot be used as a reason for Independence in 2004 - the next argument put forward by Russia.  However, the court did not rely on the violation of human rights as the basis of its decision. Rather, it pointed to the stripping of constitutional rights granted to other regions of Yugoslavia - a position successfully put forward by Croatia.  Conversely, violation of human rights is precisely the argument used by Russia to inject troops in support of the Abkhazian and S. Ossetian independence movements. 

Despite the frequent admonitions that Kosovo is a unique situation and not precedent - admonitions made by Russia, Turkey (with it's eye on the Kurds in northern Iraq), the UK, US and Germany (in recent statements in Cyprus), it will be used as precedent.  But it will be politics, not international law that will govern the outcome.

International Court of Justice - Kosovo can say what it wants

I have not read the advisory opinion issued by the International Court of Justice today regarding the legality of the Kosovar declaration of independence from Serbia in 2008, but will.  However, from the bits that I have read, it seems that the old saying "be careful what you ask for" really applies to this opinion.

Distilled, it seems the court opined that the declaration of independence by Kosovo was not illegal under international law.  This is a punt, it seems to me. Anyone can declare independence with impunity. It is not quite the same as shouting "fire" in a packed theater, but the court essentially affirmed the right to say whatever you want, to a point.  From what can be gleaned from the BBC reports, the opinion never stated that the secession was legal.  For what it is worth, I think that it is, but we can get into that at another time.

The ultimate result will be how this opinion will be interpreted by, say, South Ossetia, Abkhasia, the Basque region of France and Spain, Chechnya, Russia, France, Spain and Georgia - to name a few.  After I have had the chance to actually read the opinion, there will be additional analysis.  For the time being, I can positively guaranty that Prishtina will be celebrating and Belgrade will pout.

Aid to the Roma

Image by Getty Images via Daylife

Al Jazeera published an article by Phoebe Greenwood, working for Save the Children charity, on the plight of the Roma in Montenegro. The article was published as a special report commemorating Refugee Day on June 20. (The photo is of a Roma refugee in Cesmin Lug, Kosovo, December 2007)

The description of the camp is focuses on the plight of Roma refugees from Kosovo, and not about the life of the Roma population within their respective countries in general. For example, in FYR Macedonia, the Roma community within Skopje, the capital, is similarly poor, but not quite to the extent described in Ms Greenwood's report. Many Roma families in Skopje pull their young children out of school, not because they are abused or attacked (although that is certainly the case at times), but because the way of life requires that the children help support the family on the street by peddling goods or begging. There is no desire, at least in Skopje, to join Macedonian society. Indeed, if one tours the Roma compound in Skopje, the poverty is overwhelming - except when one comes upon the local ruler's home which is quite large and expensive.

The result of the resistance to integration leads to frustration among some in the development community. During my time in Skopje, I watched as a UN team enthusiastically began working with the Roma community only to find that their efforts were not similarly enthusiastically embraced unless the local leader approved. Such approval was clearly based on "what do I get out of this?". In private, the team was critical of the Roma community leadership's failure to respond positively and constructively. They wanted to leave.

I am also not surprised at the low attendence and high drop-out rate in school. That was the pattern in Skopje. Unfortunately, I am also skeptical of the sincerity of some of the statements made by some the Roma in Podgorica. I am also curious as to the ownership of the large homes in the background of the photo featured in the article.

The truth of the matter is that the answer to question of "why is no one helping us", is that no one in the Balkans (or in Russia, Ukraine - anywhere) wants to help. Organizatons like Save the Children should be given more resources to assist communities such as this, but no one should expect local governments to help at all. Save the Children and similar charities cannot build infrastructure, houses or change the political climate to the extent required. But they can help to prevent the spread of disease, push for new regulations and enforce existing laws protecting the rights of children.

The Roma have been the target of discrimination in every country in which I have worked. Their way of life does not easily permit absorption into local society. However, the treatment of the Roma - abetted by the policies of local governments as documented in this article - needs to be changed. Telling them to "return where they came from", in this case Kosovo, would solve the problem for officials in Podgorica, but not for the refugees. They cannot stay, but they are probably equally unwelcome in Kosovo. Attitudes will need to change on both sides - and attitudenal changes require generations.

On the whole, I'd rather be in...

Paris.

Via AFOE is an interesting article on what school children are learning in Serbia about the conflict between the Serbs, Croats and, in particular, the Kosovars. The future result of this selective history may well be tragic; but the situation is not unsurprising in a country that continues to celebrate a major defeat at the hands of the Ottomans. What is happening is tragic since it sows the seeds of future conflict. Serbian children are being taught to hate. And hate not just Kosovars, but ultimately Western Europe which has in partnership with the US, in their view, attacked them for trying to preserve their territorial integrity. They see themselves as victims.

Unfortunately, the UN exercise in nation building in Kosovo has not improved the atmosphere and could ultimately re-ignite the conflict, particularly if Russia would like to improve its leverage over Germany and France. Russia, after all, pointed to the precedent of Kosovo (wrongly, in my view) during its invasion of Georgia for which only France offered verbal support.

Kosovo, for its part, has been repeatedly instructed by the UN and the international donor community that it must mind the rights of minorities (read, Serbs). The Kosovars could care less in private.

Development funds have poured into Kosovo and always contain proscriptions against violating minority rights. These proscriptions are unlikely to work in the long term because the Kosovars are oblivious to such rules and don't trust the Serbian government in Belgrade - mostly however, they don't care. Serbs are poorly treated in Kosovo regardless if this was their home for generations. One side of a street populated by Serbs - in the only European country with posted speed limits for tanks - are clearly less well off than the opposite side. Serbs don't cross the street.

Perhaps donors need to retool their approach. The well-meaning goals are nice but they need to accept reality and understand that their funds will simply not change societal attitudes for a generation. Or the next. The students in the article are the most susceptible to the type of social propaganda described and perpetuation of ethnic hatred. Land reform, governance, justice reform and other similar interventions won't change that environment.

To avoid the perpetual cycle of hate in the Balkans, donors need to do something more, at less cost, than the current interventions. What hasn't worked?

We have some ideas - coming soon.

Disclaimer - before I am unmercifully attacked (wait until I discuss Armenia) - I am not pro-Kosovo but I know what the Milosevic regime brought down on innocent people largely for their religious beliefs. All Serbians and all Kosovars are not anything. The hot war is over and the region needs peace, if not reconciliation. The parties need to grow up.