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What the pending International Court of Justice decision on Kosovo’s independence will mean for the Israeli-Palestinian conflict

Milena Miletic
January 25, 2010
Hanging posters in Pristina, Kosovo’s capital, in the days before the declaration of statehood.(Dimitar Dilkoff/AFP/Getty Images)
Hanging posters in Pristina, Kosovo’s capital, in the days before the declaration of statehood.(Dimitar Dilkoff/AFP/Getty Images)

The International Court of Justice will soon issue an opinion on the legality of Kosovo’s independence from Serbia, which was unilaterally declared in February 2008 and has been recognized by 65 of the U.N.’s 192 members. A decision to recognize Kosovo’s independence will likely have a significant influence on separatist movements around the world, and on the future of the Arab-Israeli conflict. Serbia’s Foreign Minister, Vuk Jeremic, recently told an interviewer, “Kosovo is our Jerusalem.” The question for Israel is whether Jerusalem will soon become its Kosovo.

Kosovo’s majority-Muslim population suffered during the reign of former Serbian leader Slobodan Milosevic, and the idea of an independent Kosovo attracted the firm support of the Clinton and Bush administrations, as well as 29 states belonging to the European Union and/or NATO. Pressures on states that were once cool toward the secession of Kosovo have intensified in advance of the Hague’s forthcoming ruling. Even the former Yugoslav republic of Montenegro, which had close ties to Serbia, decided at the end of last year to accept an ambassador from Kosovo in the hope of furthering its application to join the European Union. Many states that support Kosovo’s independence for religious, political, or idealistic reasons are enthusiastic supporters of unilaterally establishing a Palestinian state on territory now controlled by Israel.

During a visit to Serbia last summer, Palestinian President Mahmoud Abbas explained that the Palestinians are very interested in what goes on at the ICJ. “The case of Kosovo is before the ICJ and I believe it is the right way to solve problems,” Abbas told Serbian President Boris Tadic. The Palestinian Authority has been lobbying for months for more robust engagement by the United States and other powers and for increasing the role of international institutions, especially international courts. “Kosovo is not better than us,” Abbas aide Yasser Abed Rabbo said days after Kosovo declared its independence. “We deserve independence even before Kosovo, and we ask for the backing of the United States and the European Union for our independence.” The Kosovo principle would imply not only that a Palestinian state could be created by international courts acting at the behest of an international community sick of failed negotiations. It would imply also that any such decision would be subject to future revision based on the changing demography of individual regions of the rump state of Israel, such as the majority-Arab Galilee.

The disputed province of Kosovo, which Serbs have historically referred to as Kosovo and Metohija, was one of two autonomous ethnically mixed provinces of Serbia and the part of the country that saw the heaviest fighting during the Balkan wars of the 1990s. Positioned in the heart of the Balkan peninsula, next to Pan-European Transport Corridor 10, a key roadway for commerce between the east and Western Europe, Kosovo is the cradle of medieval Serbia, and a home to the old monasteries of Gracanica, Decani, Banjska, and St. Archangel. Kosovo’s Albanians do not use the full name of the province because the word metohija—which means land of churches—is thought to legitimize Serbia’s historical claim to the province.

Nationalist tensions between Albanians and Serbs in Kosovo began in the 19th century and escalated with the eviction of thousands of Serbs from Kosovo at the beginning of World War II. In the mid-1990s, Kosovo became a battleground between Serbs and Albanian separatists and attracted the attention of Western media and NGOs embarrassed by the West’s failure to stop ethnic cleansing and warfare in Bosnia. After a U.S.-led force bombed Serbia, the U.N. Security Council adopted Resolution 1244, which placed Kosovo under interim U.N. administration and reaffirmed the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, which included Montenegro, Serbia, and its autonomous provinces, Vojvodina and Kosovo.

In the years that followed, Serbia asked for negotiations over the legal status of Kosovo. In 2006, U.N. Special Envoy Martti Ahtisaari led a round of talks that resulted in a 2007 draft settlement proposal, which Russia and China opposed, forcing the U.N. Security Council to support another failed round of negotiations.

In February 2008, the Assembly of Kosovo declared its independence from Serbia. Objections from Russia, China, and other countries made it impossible for the United Nations to endorse the province’s independence. Pressed by the possibility of having to choose between losing its territorial integrity and severing its newly established ties with most NATO and E.U. members, the Serbian government decided to shift the problem to the international courts. In October 2008, the U.N. General Assembly voted to encourage the ICJ to issue an opinion on the question, “Is the independence of Kosovo in accordance with international law?” Meanwhile, the leaders of more than 90 recognized secessionist movements in the world, as well as states like Spain and China—which have reason to fear the international legitimization of secessionist movements—are closely following the Kosovo story.

There are three plausible outcomes to the ICJ case:

The first would be for the court to state that the declared independence of Kosovo violates international law.

The second would be for the court to rule in favor of Kosovo’s independence. The U.N. Charter does not approve secession on an ethnic basis except in cases involving colonial rule. But supporters of Kosovo’s independence hope the ICJ might make a special allowance because of the violent history of the province. The cost, though, of making such an allowance is that it would affirm for states and separatist movements across the globe that international justice grows out of the barrel of a gun.

The third and most widely expected outcome is for the court to issue an opinion each party can interpret as it pleases, a result unlikely to increase international stability.

Whatever opinion the ICJ reaches will establish the court’s power to solve other such disputes, and the degree to which the ruling is influenced by outside pressures will set an important precedent that will be applied to other cases—beginning with Palestine. Unlike Kosovo’s Albanians, who in centuries past had been only a minority in the province, Arabs had for centuries been a majority in Palestine and already possess the embryo of a state.

In both Palestine and Kosovo, demands for statehood have been accompanied by violence, most notably by Serbs. But the picture in Kosovo is much richer and more complex than the simplified images of violent and disgusting Serbian criminals that captivated Western media in the ’90s. From the beginning of World War II to the mid-1980s, Albanian separatists used murder, kidnapping, and forced property buyouts to expel several hundred thousand Serbian citizens. Albanians were killed not only by Milosevic’s thugs but also by their own people—members of the Kosovo Liberation Army—who murdered the disobedient among them and turned large areas of the country into war zones.

Because Palestine, too, has suffered from decades of bloody conflict, one might expect the same arguments that are likely to prevail in the Kosovo case—that the prevention of violence justifies an internationally imposed secession—will quickly be applied to the conflict between Israel and the Palestinians. Tzipi Livni, who was Israel’s foreign minister during last year’s military campaign in Gaza, has already been issued an arrest warrant by a British court for her role in the offensive. (The warrant was withdrawn after Livni canceled a planned trip to Britain.)

In this light, one might recall Barack Obama’s speech in Cairo last summer, which sent a clear message that further construction of Jewish settlements in occupied territory must be stopped—a message that has been repeated by Hillary Clinton and other key U.S. policymakers. A recent report by STRATFOR, a geopolitical risk-analysis firm, stated that “in order to institute the two-state solution, Obama must establish the principle that the West Bank is Palestinian territory by right and not Israeli territory on which the Israelis might make concessions.” Israel has already lost an ICJ battle over its West Bank barrier. After Kosovo’s independence, it could lose much more.

Milena Miletic is a political correspondent at Akter, a Serbian political weekly, and a contributor to the Serbian magazines Odbrana (Defense) and Bezbednost (Security).

Milena Miletic is a political correspondent at Akter, a Serbian political weekly, and a contributor to the Serbian magazines Odbrana (Defense) and Bezbednost (Security).

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