noe fra http://jurist.law.pitt.edu/academic.htm
Knut Rognes
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What Does Public International Law Have to Say About Kosovar Independence?
- A Postscript [and a Post-Postscript]
Prof. dr. Frank Muenzel, Max-Plank-Institut fur Auslandishes und
Internationales Privatrecht, Hamburg, Germany
(http://jurist.law.pitt.edu/simop.htm#Postcript)
Postscript [August 17, 1999]
I regret I have to add a postscript to what I wrote a year ago.
At the core of my argument for Kosovar independence then was what I wrote
in II,3 and in note 67:
In Kosova, two "state powers" existed side by side. One was the Republic of
Kosova, based on democratic elections which had produced a parliament, a
president and a government, as well as local governments, which,
supplemented by basic organs of justice and supported by the will of the
people, governed the country as best they could under very difficult
conditions, providing a system of education, health care and social
welfare. The other was Serbia/Yugoslavia, which attempted to control Kosova
by terror, against the will of the people, without democratic legitimation,
committing not only multiple robberies and murder, but genocide. I had
argued that the latter could no longer be considered a state, that it was
at best a "failed state", in fact a criminal gang. In a failed state
situation, the will of the people is the most important source of
international legitimacy. The Republic of Kosova was legitimized by the
will of the people and therefore the only legitimate state in the area.
After I had written my paper, the Serb/Yugoslav gang broke into a paroxism
of crime on a scale which had seemed unthinkable even after all that had
happened before. This finally made the international community act and rid
Kosova of these criminals. What then happened to the Republic of Kosova?
Within two and a half months, the Serbian gangs had killed between ten and
forty thousand people. But many of the deputies of parliament, the members
of government, the president had survived. Freed of oppression, do they now
lead the country into a fully democratic society?
No.
A "Provisional Government" has established itself, based on some groups of
the Kosova Liberation Army (KLA) - not on those groups in Llap or Dukagjin,
though, which gained the few successes in the armed fight against the
Serbs, but mainly on the "military police". The members of this "police"
now are carrying passes entitling them, in the best Gestapo style, "to
carry arms, to arrest people, to enter and search private dwellings and to
confiscate goods that are needed". In Prizren, German soldiers discovered a
torture chamber where this "police" (among them a woman) was torturing a
group of Roma; an elderly Roma had already died.
This was not an "isolated incident". All over the country, members of the
minorities - Serbs, Roma, Slav Muslims, Albanian Catholics - are
threatened, attacked, even killed. Serb and Roma houses are burned down
house by house and street by street. Serb churches are being destroyed; a
Serbian nunnery has been attacked, a young nun violated. Old Serbs who are
told to leave but have nowhere to go have been shot dead through the doors
of their flats. Serbs have been denied medical care, and Albanian doctors
cooperating with Serbian doctors have been threatened.
Though witnesses often say that the perpetrators of these crimes wore KLA
uniforms, such acts usually are blamed on people who want to revenge
themselves. Of course, when your wife, your children, your neighbours have
been killed, your house has been burnt down and you have been hounded out
of the country by Serbian paramilitaries, you won't feel very friendly
towards Serbs. But the Serbian criminals have long since fled the country.
You have to clear your fields from mines, rebuild your house, find
something to eat. Where would you find the time to hunt down and kill e.g.
an elderly, ill Serbian woman who personally has not hurt you in any way?
Moreover, these crimes occur on a scale which shows that these are not
individual acts of revenge but an organized campaign.
Not only the minorities are threatened. From its very beginning, this
"military police" also attacked those Albanians who did not agree with
them; it made its first appearance (as "secret military police") in 1998,
when it "arrested" some Albanian party politicians, while the speaker of
their KLA wing, Jakup Krasniqi, declared that this was not a time for
political parties. Even murders of Albanian opponents started long ago
(though no KLA leader openly accepted responsibility for them) and included
that of the Minister of Defence of the Republic, that of several KLA
commanders and that of critical Albanian journalists, starting perhaps with
the murder of Enver Maloku, the founder of the Kosova Information Center.
By now, everybody is afraid. The many critics of the new order dare speak
out, if at all, only abroad. Even Veton Surroi, an able journalist
deservedly famous for his courage under Serb occupation now only notes
mildly that he "does not like nor want to defend the injustices of our
side" (towards the Serbs; nobody deigns to mention the Roma).*
The "temporary government" was supported from its start by both the
Albanian government (and the Albanian Socialists, the former Communists)
and the two US government radio stations in Europe (Voice of America, Radio
Free Europe). It now justifies its existence with an informal agreement
reached among the Albanian participants of the Rambouillet conference to
establish a sort of government of national unity. But the most important
partner of that informal agreement, and the only one with democratic
legitimation, the LDK, now declines to participate in this "government";
and Rambouillet was stillborn anyhow. The "temporary government" and those
behind it have no democratic legitimation at all. They base their power on
fear and fear alone, fear in particular of their "military police".
So we now again have a situation where a group of criminals reigns by fear,
robbing and expelling the minorities, scaring opponents into silence and
submission. Thanks to KFOR, the scale of these crimes still is entirely
incomparable with what happened under the Serbs. But in essence, and in
their effects, they are the same. The main difference is that now, faced
with this new threat, the legitimate organs of the Republic of Kosova, once
so courageous in opposing the Serbian gangsters, are silent.
This is destroying the main legal basis of the argument for the
independence of Kosova. If what now poses as the Kosovar goverment is as
illegitimate and in essence as criminal as the Serbian gang which
terrorized the place before, what is there to choose between them, legally
or otherwise?
F. Muenzel, August, 1999
* Interview of A. Borden with Surroi, Java shqiptare, 14.7.1999, pp.10-11.
Surroi adds that "it would be incorrect to think that the Albanians
insinuated the leaving of the Serbs". This is quite true. It is not
"insinuated" that the Serbs should leave. It is made abundantly clear.
Surroi himself notes that he is "convinced of the collective responsibility
of this [i.e. the Serbian] people", but that "without doubt, they are
invited to bear the risks of the building of a real democracy together with
us". This hardly is a very convincing invitation.
Post-Postscript [August 20, 1999]
I am very happy that I have to correct myself on one point: I misjudged
Veton Surroi. In his newspaper, Koha ditore, the most influential paper in
Kosova to-day, he has just published an inspired denunciation of the crimes
against the minorities - not one of those lukewarm notices of disapproval
we are getting from the officials and some intellectuals, as a sop to the
West, while before Albanian audiences, the same people or their lieutenants
are saying just the opposite, no, this is an impassioned plea for the
persecuted, a warning that Albanian opponents will be the next on the list,
an outcry to stop this slide into fascism, this great blot on the honour of
Kosova. Many ordinary Kosovar Albanians are already protecting and helping
the persecuted, at great personal risk. But this is the first time (not
only in Kosova, but all over the region) a prominent, even powerful
intellectual and politician has spoken up loud and clear for a humane
society, even though this meant denouncing the crimes of his own group.
This is a bright ray of hope for Kosova that the tide may still be turned.
Surroi wrote (Koha ditore, Aug. 18, page 1; translated from Albanian):
The Bells of Shame
An old woman, beaten to death in her bathtub. A 2-year-old child wounded
while its mother is murdered. Two kids killed by grenade launchers. A woman
who does not dare to give her name in public because she is afraid that
those who tried to violate her will knock on her door again. These are
[Kosova] Serbs during the last four weeks. These are the quiet people,
locked in their flats, scared to death, living in an atmosphere where every
sound seems a threat, where every car that stops might take you away to
your death. Add the old couple, pensioned off long ago, who have nothing to
eat and are afraid to go to the market to buy food because their deficient
Albanian would be noticed. Add to this that they also have no food because
their neighbours are afraid even to buy food for them, having been warned
not to "feed Serbs".
I know how the Serbs feel these last four weeks, because I and nearly two
million other Albanians have been there before them. Not to mention the
Roma who also are persecuted on openly racist grounds. I recognize their
feelings: Every car that stopped before our doors was a potential danger;
every sound was the announcement of inevitable death; from our Serbian
neighbours, little or no help could be expected; the radio told us that the
Serbian government had given its units the right to kill automatically, at
will, anybody, even children and old people. I cannot hide my shame that
now, for the first time in Kosovar history, I must learn that Kosovar
Albanians are able to commit monstrous crimes. I cannot be silent. I have
to speak out and say that for us as a nation it is a reason for great
anxiety that for the first time, even the most basic rule of our moral code
has been broken: the rule that children, women and old people are
inviolable. I know the defence everybody puts forward automatically: that
we have passed through a barbaric war in which Serbs were responsible for
the most heinous crimes and in which the intensity of violence has left a
thirst for revenge in a part of the Albanian people. But this is no
justification. We have seen the flight of those Serbs who had served their
rulers and used every kind of violence against Albanians, of those Serbs
who had to fear the revenge of the Albanians who now had to open the graves
of their families. But the violence to-day, two months after the arrival of
NATO forces, is not only an emotional reaction. We are faced with an
organized system - or with organized systems - of violence, a spiral of
violence against the Serbs; and we are faced with a thinking behind this
violence which holds that every Serb must be punished for what happened in
Kosova. This thinking is called fascism. This is the thinking against which
the people of Kosova stood up in ten years of fighting against Milosevic.
This is the thinking against which, in the last phase of the battle, the
KLA had to appear to show that the Albanian people of Kosova was ready even
to take up arms in its struggle.
The Serbian victims to-day and their life in danger and fear, the threat
against their community, are a shame not only for a small part of our
people. This ignominy we will have to bear collectively, it will dishonour
us all, who only some months ago flooded the television screens all over
the world with our sufferings. It will dishonour even the Albanian victims
of Kosova, those children, women and old people who have been killed only
because they were Albanians.
The others, Europeans and Americans, will not blame us because we did not
defend a "multiethnic Kosova". After all, even before the war, Kosova was
just as multiethnic as Slovenia; and who is talking about a multiethnic
Slovenia? But they will accuse us that from being the victims of the
greatest persecution at the end of this European century we so very easily
changed into those that allowed (and comparative numbers or intensity are
of no importance here) that others also are persecuted in Kosova, that
fascism is repeated.
And they will be right. And those who believe that this will stop with the
leaving of the Serbs will be undeceived. It will be the turn of the
Albanians again, but this time as victims of other Albanians.
Is this what we fought for?
Veton Surroi
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