JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says that creating an independent multi-ethnic state in Kosovo would almost certainly be a human rights disaster for the 200,000 Serbs living there…

The United States is on the verge of pushing a resolution through the UN Security Council declaring Kosovo to be an independent multi-ethnic state. The result will almost certainly be a human rights disaster for the 200,000 Serbs living in that tormented land.

A few days ago at a breakfast meeting in Chicago, the speaker was asked whether independence for Kosovo was a “done deal.” Ambassador Frank G. Wisner, Special Representative of the U.S. Secretary of State to the Kosovo Status Talks, replied that although Russia was not yet on board, the deal would probably go through simply because it is the least bad alternative. A worse alternative would be Serbian hegemony over Kosovo; it would precipitate a civil war that could lead to the extermination of all the Serbs.

The population of Kosovo consists of approximately 1.8 million Kosovars and 0.2 million Serbs. Their mutual hatred grows out of a sorry record of bilateral atrocities and ethnic cleansing.

Enter the United States with a portfolio containing a three-part plan for rescuing Kosovo. The first part of the plan would reserve certain high governmental posts on the basis of religion or ethnicity, rather than by a democratic process. Is it any wonder that the plan resembles the regime change that the United States is now installing in Iraq? There, for example, if the president is a Shiite, the Foreign Minister must be a Sunni and the Treasurer a Kurd. In a parallel manner the Kosovo Constitution could require that the president be a Kosovar and the Foreign Minister a Serb. But if any ruling group contains a few unwanted people, the others will engage in end-runs around them. The answer of the Bush Administration, as usual, is that all you need is a plan; implementation will take care of itself.

The second part of the American plan is to make sure that the new Constitution safeguards the rights of minorities in Kosovo. The American planners must have an unshakeable faith that respect for constitutionalism is embedded in the minds of the Kosovars. They wouldn’t think of ignoring Constitutional restraints upon their own power, would they? They wouldn’t ask George W. Bush for advice on what to do when the Constitution seems to stand in the way of what the President wants, would they?

Finally, the third part of the American plan is a hedge against the first two parts. A substantial UN peacekeeping force will be deployed in Kosovo to protect the Serbian minority. Picture two soldiers with Kalashnikov submachine guns walking beside a Serbian child on her way to and from school. How long can this continue before the home country calls its peacekeepers back on account of the high expense? And in any event, what kind of a solution is it that depends on continuous supervision by foreign armed forces?

The sad prognosis is that a Kosovar-dominated independent government will lose no time in confiscating the property and rights of the Serbian minority. Some 200,000 Serbs in Kosovo could lose everything they own and maybe their lives. Although minority rights have been safeguarded in states where no particular group has had as much as a two-thirds majority, in Kosovo the Serb-hating majority is 90% of the population. If that majority also controls the government—the “done deal”—then the Serbs may face a disastrous deprivation of their human rights by law and by police action.

The Right Solution: Partition

What about partitioning Kosovo into a Serbian and an Albanian territory? There are four immediate problems with partition. The United Nations is opposed to it. The United States is opposed. Serbia is opposed. And the Kosovars are opposed.

However, no one seems to be asking the potential victims what they want. Inasmuch as the United Nations is presently the trustee for Kosovo, it surely has a duty not to remit the Kosovo Serbs to the tender mercies of the majority.

The northern part of Kosovo consists of the land south of the boundary with Serbia and north of the Ibar river. Most of the religious buildings and places associated with the Christian Orthodox Church (Serbia’s historic heritage) may be found here. In total the well-demarkated area constitutes 15% of the territory of Kosovo. The simple and ideal partition plan would be to designate this territory as belonging to its Serbian population (it is currently populated almost exclusively with Serbs), and provide for Kosovar sovereignty over the remaining 85% of Kosovo.

One might question why the Serbs should be getting 15% of Kosovo when they only comprise 10% of the population. But under international customary law, the question would be reversed: why should the Kosovars (Albanians) get 85% of the land? When territory is in dispute, as Lea Brilmayer has shown in an important article (Secession and Self-Determination: A Territorial Interpretation, 16 Yale J. Int’l L. 177 (1991)), claims based on territorial rights take precedence over claims based upon demographics. When the United Nations partitioned Palestine in 1947, the Arabs received less territory than they would have received if the partition had been based on demographics. I argued in an article in JURIST some years ago that the Palestinian partition, all relevant factors considered, was entirely equitable.

If we analyze the question prior to the time of the civil wars in Yugoslavia in the 1990s, international customary law would clearly support Serbia’s claim to sovereignty over Kosovo. What has happened since then, if anything, that divested Serbia from its territorial rights in Kosovo?

In his report to the United Nations of March 26, 2007, Special Envoy Martti Ahtisaari pointed to the establishment of the United Nations Mission in Kosovo (UNMIK) in 1999. UNMIK assumed all legislative, executive, and judicial authority in Kosovo; Serbia has been effectively ousted from having any governmental role since 1999. Hence Mr. Ahtisaari argues that too much time has passed for a return of Serbian rule; the Kosovars would be provoked into violent opposition.

If we remove the diplomatic euphemisms from Mr. Ahtisaari’s report, we find that he is essentially arguing that UNMIK has conquered Kosovo! Territory-grabbing by conquest has been illegal since the Kellogg-Briand Pact of 1928, yet somehow the United Nations has done it, according to Mr. Ahtisaari. However, there is nothing in the UN Charter that gives the UN the power to oust an existing government by force, replace it with a United Nations mission created especially for the occasion, and then dissolve the mission and hand sovereignty over the territory to someone else. Acquisition of territory by conquest is simply illegal, whether a state does it or an international organization does it.

This violation of customary international law is not softened by the fact that the UN has designated Kosovo as a trusteeship. It would be as if the trust department in a bank deciding after eight years’ supervision of the trust assets, those assets can be removed from the trust and handed over as a free gift to one of the bank’s shareholders.

However, there is a second argument that in my opinion counts heavily against restoration of Serbian rule in Kosovo. We might call it the “human rights argument”: During the Yugosl
avian civil war, Serbian President Milosevic conducted an unremitting campaign of suppression against the Kosovars, in the course of which his armies committed crimes against humanity. The brutality of the Milosevic incursions into Kosovo may be argued as disqualifying Serbia from ever again governing the Kosovars.

The human rights argument disables Serbian rule over the Kosovars but says nothing about the territory of Kosovo. In particular, the human rights argument is irrelevant to northern Kosovo (the 15% area) because crimes against humanity during the Yugoslav civil war did not occur there. Thus I would conclude that the United Nations has no right under its Charter to take that 15% of territory away from the government as designated by the local Serbs. Presumably that government would be the present government of Serbia.

The United Nations’ power to partition Kosovo into two areas of 15% and 85%, the Security Council will be acting under its Chapter VII powers to maintain or restore international peace and security. The “trusteeship” argument is nothing but a bootstrap. By contrast, given the magnitude of the atrocities committed against the Kosovars during the Yugoslavian civil war, the Security Council arguably has the right to permanently disable Serbia from exercising sovereignty over the territory occupied by the Kosovars. But it has no right, in my opinion, to overreach and take away land where no crimes against humanity took place. The northern 15% of Kosovo must retain its Serbian identity.

Anthony D.Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.

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