22. The International Court of Justice decision on Kosovo, 2010

On October 8, 2008, the UN General Assembly, at the request of Serbia, asked the International Court of Justice, ICJ, in The Hague for an advisory opinion on whether Kosovo’s Declaration of Independence was in accordance with international law. Two years later the ICJ, published its opinion that the Declaration of Independence had not violated international law. There was considerable argument at the time that the ICJ should have responded more widely to the question but this was the question which Serbia had formulated and hence it was unrealistic to expect a different approach. Serbia’s request had enabled the question of Kosovo’s independence to be parked for a couple of years, for angry moods to calm and for further considered thought on how to move forward develop.

The International Court of Justice’s decision on the Declaration of Independence of Kosovo is not mentioned in Kosovo history the textbooks.

On October 8, 2008, the UN General Assembly, at the request of Serbia, asked the International Court of Justice in The Hague for an advisory opinion on whether Kosovo’s Declaration of Independence was in accordance with international law. The International Court in The Hague on July 20, 2010, published the opinion that the Declaration of Independence had not violated international law.

Ian King and Whit Mason

On 17 March 2004, thousands of Kosovo Albanians rampaged across Kosovo. Some set about murdering Serbs; others picked out Serb houses and set them alight – more than 700 Serb homes were damaged or destroyed and 36 Serbian Orthodox churches or cultural sites, some of them centuries old.  Over 4,000 Serbs and members of other minority groups perceived as being close to the Serbs were forced to flee. Several Albanians were killed in clashes with KFOR and UNMIK police. In all, nineteen people died and more than 1,000 were injured, several of them KFOR peacekeepers or members of the newly created local police force.

Kosovo’s media, above all its foreign-funded public broadcaster, played a leading role in whipping up enthusiasm for this pogrom. Most of Kosovo’s new political elite, appointed with UN approval and subject to removal by UNMIK’s chief, the Special representative of the Secretary-General, offered tacit support or, at best, half-hearted condemnation. As the riots progressed, Albanian mobs turned their collective fury on their international overlords, throwing rocks at UN buildings, burning UN flags and destroying more than 100 of the administration’s ubiquitous white Toyota 4 Runner 4x4s.

Oliver Schmitt

During the anti-Serbian pogroms (March 17 – 21, 2004), the Albanian mobs  again attacked Serbian churches and destroyed the Holy Archangels monastery in Prizren, where monks had been living l since 1998. This destruction of Serbian cultural heritage should also understood within the context of destruction of Albanian-Muslim monuments in 1998 and 1999. It should be noted that Milosevic’s extermination policy and his anti-Islamic propaganda resulted in Muslim Albanians no longer respecting Christian monuments . This respect had been created over the centuries. This explains the riots but does not justify them.

 

James Ker-Lindsay

Whatever improvements had been made towards improving inter-ethnic relations, they were effectively negated in early 2004 when Kosovo suffered its worst fighting since 1999. On 16 March, three Albanian boys drowned in the Ibar. Although there was no evidence to support the story, within hours the media, including RTK, the national broadcaster, were reporting that they had been chased into the river by dogs belonging to Kosovo Serbs. It could not have come at a worse time. That same day a series of demonstrations were taking place to protest about the indictment of a number of KLA leaders for suspected war crimes committed in 1999. Thus the anger directed towards the UN was magnified and directed towards the Serbs as well. Despite the best efforts of KFOR to contain the violence, it rapidly spread across the province; aided in part by the ambivalence of local leaders. Rugova, who had forged his reputation on passive resistance, refused to condemn the violence.

The impact of the riots was enormous. By the time the fighting was contained, on 19 March, it was estimated that almost 51,000 people had taken part in at least 33 separate incidents across the province. As a result, 19 people had been killed, 8 Serbs and 11 Albanians, and over a thousand injured. Over 550 homes had been burned, along with 27 monasteries and churches. This had left approximately 4,100 people displaced. This number included not jus Kosovo Serbs, but also members of the other minorities, including the Roma. Naturally, the riots had an immensely negative effect on inter-communal relations. Whatever trust that may have been developing between Serbs and Albanians was severely undermined. The incidents also led to a breakdown in contacts between Belgrade and Prishtina. In the aftermath of the violence, the technical talks between the Kosovo PISG and the Serbian Government stopped.

 

Marc Weller 

Serbia had had full control over the question put to the Court, having been the sole sponsor of the General Assembly Resolution requesting it. The question that was eventually put was very narrow, presumably because Serbia decided that this phrasing would move the issue onto legal ground where Serbia was confident of winning the argument – the legal authority of the Provisional Institutions of Self-Government in relation to the declaration of independence. This authority was thought to be circumscribed by Security Council Resolution 1244 (1999) and by the Constitutional Framework that had been adopted under its authority. It is difficult to understand why Serbia did not frame the question in a way that would have raised additional issues. The prevailing legal view would hold that it is unnecessary for Kosovo to have a positive right to self-determination in order to obtain statehood. Statehood is a matter of fact, provided it is not brought about in violation of certain obligations, including those of jus cogens. However, through the phrasing of the question, Serbia deprived itself of obtaining wider analysis. As it turned out, the narrow focus of the question addressing only the authority of the PISG (Provisional Institutions of Self-government)implied a serious risk. If the Court were to find that the declaration of independence did not emanate from the PISG, or, even if it did emanate from the PISG, that it was not constrained by resolution 1244 or the Constitutional Framework, that would end the matter. Anything other than a clear finding by the Court that the Declaration was not in accordance with international law would be internationally understood as confirmation of Kosovo’s claim to statehood. In other words, unless the declaration was clearly ruled unlawful, all other outcomes would favour Kosovo. The Court is under attack from claims that the Advisory Opinion represents a wasted opportunity, and that it did not answer certain questions. However, it must be remembered that the Court is not involved in academic or scholarly output, and may not answer questions that weren’t put to it. As to the decision of the Court to respond to the request, rather than deciding not to exercise its discretion to do so, the ICJ has consistently held that any issue brought before it, however political it may be, can be decided as a matter of law. Serbia was pursuing a political agenda in bringing the action in the United Nations General Assembly. States’ policies were divided in relation to the Kosovo issue. But in addition the relevant legal principles are to some extent uncertain or in a state of development, in particular the application of the concept of self-determination outside the colonial context. It would have been unrealistic to expect the Court to resolve this issue, especially if the question posed did not require it. The application of judicial economy in deciding the case through the shortest possible route of legal argument is entirely unsurprising.

 

James Ker Lindsay 

In examining Serbia’s decision to refer the matter to the ICJ, it is evident that this had always been viewed as a potential element of a wider counter-secession strategy by Serbia. This was openly stated even before Kosovo declared independence. Nevertheless, relatively quickly it also became an act of necessity. Quite apart from the fact that Belgrade had to show that it was doing everything in its power to maintain a claim to Kosovo, it was obvious that it did not have the political and diplomatic strength to counter a concerted campaign by a number of major international states, most notably the United States and key members of the European Union, to press for Kosovo’s recognition on the international stage. Faced with a strong campaign to persuade countries that Kosovo was a unique case in international politics, Serbia had little choice but use international law to challenge this argument. Meanwhile, the decision to pursue a case before the ICJ was also crucial as a delaying tactic. It was important that Serbia slow down the pace of recognitions after the initial flurry that occurred in the immediate weeks following the declaration of independence. By taking the matter before the Court, regardless of the eventual outcome, Serbia gave countries a legitimate reason to resist external pressure to recognise Kosovo. Simultaneously, at the domestic level, the decision to take the matter before the ICJ was not only tangible proof that the government was fighting the Kosovo cause as best it could, it also provided a very welcome way of letting the significant tensions that had emerged from within society over Kosovo’s declaration of independence, and Western support for the move, subside. Bearing this in mind, and regardless of the eventual outcome of the case, the strategy of pursuing a case before the ICJ should be broadly regarded as having been successful in at least two senses. The pace of recognitions did slow, as acknowledged by Kosovo itself, and public anger did diminish.

 

International Crisis Group

By a ten to four majority, the ICJ found that Kosovo’s declaration of independence “did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework” imposed by the United Nations Interim Administrative Mission in Kosovo (UNMIK).2 This was a narrow ruling; the Court concluded only that there was no prohibition on declaring independence, not that Kosovo had permission to do so, or that it enjoyed “the right to separate from a State”.3Several judges felt the opinion should have gone further and addressed the right to “remedial secession” following grave human rights abuses; and at points the judges hinted at broader implications for “the right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation”.

 

(Fehmi Rexhepi ‘Historia 9’. Prishtinë: Libri Shkollor, 2010; Jusuf Bajraktari, Fehmi Rexhepi, Frashër Demaj ‘Historia 10’. Prishtinë: Libri Shkollor, 2011; Đorđe Đurić and Momčilo Pavlović ‘Istorija 8’. Belgrade: Zavod za udžbenike, 2010; Đorđe Đurić and Momčilo Pavlović ‘Istorija 3’. Belgrade: Zavod za udžbenike, 2010;
‘Kosovo: The ICJ Opinion – What Next?’ Chatham House, 21 September 2010 – http://users.ox.ac.uk/~sann2029/ChathamH_kosovo_ICJ_Paper.pdf ; Ker-Lindsay, James (2015) Explaining Serbia’s decision to go to the ICJ. In: Milanovic, Marko and Wood, Michael, (eds.) The Law and Politics of the Kosovo Advisory Opinion. Oxford University Press, Oxford, UK.; International Crisis Group, Europe Report N°206, 26 August 2010, Kosovo and Serbia after the ICJ opinion.)