JURIST Guest Columnist John Cerone of New England School of Law, formerly a Human Rights Legal Advisor with the UN Mission in Kosovo, says that given the legal and moral complexity of the Kosovo situation, recent suggestions that Kosovo's unilateral declaration of independence from Serbia is unlawful but may nonetheless be "justified" are problematic…

From the moment the NATO bombing of Yugoslavia began in 1999, the independence of Kosovo seemed a highly likely eventuality. Since that time, developments on the ground have effectively precluded virtually any other possibility. As such, an independent Kosovo does seem inevitable. However, a number of commentators have recently opined that although the purported secession of Kosovo may well be unlawful, it is nonetheless just. Both of these propositions — that it was not in conformity with international law and that it was "justified" — are open to question.

International law has very little to say about the legality of secession. Traditionally, the international community simply sits back and waits to see if the secession is effective. This neutrality derives largely from the principle of non-intervention — that states must generally refrain from interfering in the internal affairs of other states. To posit that Kosovo’s secession is not in conformity with international law implies that there is some international legal procedure for secession that was not observed. No such procedure exists. While it may be argued that the Security Council’s pronouncements have anticipated a “political settlement” on the future status of Kosovo, there is no indication as to what this settlement should entail or whose consent would be required.

While it would be difficult to characterize the declaration of independence as unlawful, recognition of Kosovo’s independence by other states is a separate legal question. Here the question of conformity with international law is a bit murkier. As with secession, international law has little to say about the legality of other states’ recognition of newly independent states. Recognition of newly independent states is generally lawful, so long as that new state has effectively established its independence in fact. The only exception to this rule would be in specific cases where the Security Council has created an obligation not to recognize a particular state (e.g., as happened in the case of Southern Rhodesia). Whether Kosovan authorities have in fact established effective control over the territory is a matter of some debate, but it is not clear either way.

Even less clear is the question of whether Kosovo’s independence is justified. Those claiming that it is justified typically ground their position in a black-and-white view of the Kosovo conflict that tends to obscure a much more complex reality.

I have to admit that, upon my arrival in Kosovo in the summer of 1999, I had very much shared this simplistic view of the situation. Indeed, my work there on war crimes documentation was largely driven by a desire to secure accountability for the seemingly steady stream of international crimes being broadcast by the international media.

I was initially stationed in western Kosovo, where I, along with throngs of other international aid workers, was welcomed as a benefactor and friend of the Albanians; that is, until I questioned the acceptability of blowing up the town’s Serbian Orthodox Church. Any suggestion that Kosovo Serbs should benefit from the protection of human rights law was met with open hostility.

I later moved north to Mitrovica, the ethnically divided city bisected by the River Ibar, with Kosovo Serbs living to the north and Kosovo Albanians living to the south. Working regularly with individuals from all ethnic groups, I was one of very few people who crossed the Ibar on a daily basis. The few Kosovo Albanians who remained in the north lived in a state of continuous insecurity. Kosovo Serbs fared less well in the south. Shortly before I arrived in Mitrovica, a Kosovo Serb was discovered south of the Ibar, and was consequently beaten to death by an angry mob.

The work of documenting past abuses was quickly supplemented by the need to respond to the spike in crimes against ethnic minorities, including Kosovo Serbs. Over the course of the following 18 months, the killing and displacement of Kosovo Serbs, and other ethnic minorities, continued unabated, notwithstanding the presence of tens of thousands of NATO soldiers.

Further reflection was prompted once the percentage of the Kosovo Serb population that had been murdered or displaced surpassed the percentage of the Kosovo Albanian population that had been killed or displaced in the years leading up to the NATO intervention. While only a tiny percentage of Kosovo Albanians were directly responsible for the killings, the perpetrators were protected by the majority of the population who saw these crimes as unfortunate, but understandable. Even when these perpetrators killed an elderly Serb woman in Pristina — a woman who could have played no role in the conflict, and who had never left her apartment for fear of attack — her murder was portrayed as forgivable in light of what ‘her people’ had done.

To the extent that prior abuses could serve as a “justification” for Kosovo to secede from Serbia, it could equally serve as a justification for the northern part of Kosovo, populated mainly by Kosovo Serbs, to secede from the rest of Kosovo.

Of greater concern, however, is that the portrayal of Kosovo’s secession as justified typically rests on a conception of independence as a much deserved reward for the Albanians and fitting punishment for the Serbs. This view of the situation makes it far too easy to disregard the plight of minority groups in Kosovo and feeds into the destructive mentality of collective responsibility.

If we as outsiders cannot distinguish between individual and collective responsibility, how can we expect otherwise from those directly involved?

John Cerone is Associate Professor of Law & Director of the Center for International Law & Policy at the New England School of Law. He previously served as a Human Rights Legal Advisor with the UN Mission in Kosovo.
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