Perspectives | Justice

Kosovo’s current approach to Serbia’s war crimes is legally useless

By - 16.05.2019

Here’s what it should be doing instead.

Kosovo’s institutions have recently launched a number of activities to tackle allegations of war crimes, and especially genocide, committed by Serbia in Kosovo. There are, among others, ideas about establishing an international court that would deal with allegations of genocide in Kosovo, a resolution by the Assembly of Kosovo to condemn genocide, and declaring Serbian officials persona non-grata if they deny war crimes in Kosovo.

These activities may be useful from a populist perspective to create the impression that Kosovo’s institutions, 20 years after the conflict, are doing something about addressing such allegations of genocide.

From a legal point of view, they are utter nonsense.

The idea of Kosovo establishing an international court that would find that Serbia committed genocide in Kosovo is meaningless. Who should establish this court? Kosovo cannot do it as it has no legal authority to establish an international court. It can only prosecute under Kosovo’s criminal legislation individuals who have committed war crimes but not a state.

Who then? The United Nations? Setting up an international tribunal would be possible under Article 41 of the UN Charter but this requires a resolution by the Security Council. With Russia and China in the Security Council opposing Kosovo there is no chance that this resolution could come through.

Would the EU establish it? Even if the EU had such a power, which is doubtful, with five EU member states not recognizing Kosovo it is also a futile idea.

Kosovo should sue Serbia before the International Court of Justice.

The resolution by the Assembly that is expected to be rubber stamped on Thursday (May 16) is also legally useless. Resolutions of the Assembly of Kosovo do not create any legal obligations, not even in Kosovo, let alone internationally. And, as if senior Belgrade officials, such as Ivica Dačić, would really care about being persona non-grata in Kosovo.

So, is there anything that Kosovo can indeed do to prove that Serbia committed genocide in Kosovo?

Yes — Kosovo should sue Serbia before the International Court of Justice (ICJ).

To be more precise, Kosovo should sue Serbia in the ICJ for violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, also known as the Genocide Convention.

Many commentators claim that Kosovo cannot do this. They are wrong.

It is perhaps the same expression of resignation, and lack of courage and determination, that has made many believe that Kosovo could not accede to multilateral treaties, such as the Apostille Convention and Hague Convention — yet Kosovo succeeded.

Kosovo to become party to the Genocide Convention

Taking legal action against Serbia requires careful and determined preparation and there are certain legal steps that Kosovo needs to take to be able to sue Serbia for genocide.

First, Kosovo should become party to the Genocide Convention by succession. Succession means that Kosovo would continue the international legal obligations of the state from which Kosovo separated when it declared independence.

The Socialist Federal Republic of Yugoslavia (SFRY), part of which was Kosovo, ratified the Genocide Convention in 1950. After the break-up of SFRY, the Federal Republic of Yugoslavia, now Serbia — part of which was Kosovo — declared in 1992 that it would continue as a party to the Genocide Convention. This shows that Kosovo was, from 1950 and until it declared independence, covered by the Genocide Convention.

The ICJ confirmed in the case of Bosnia and Herzegovina v. Yugoslavia in 1996 that it is possible to become a party to the Genocide Convention by way of succession. When Bosnia and Herzegovina (BiH) declared independence, it sent a notice of succession to the secretary-general of the UN, the depositary of the Genocide Convention.

This notice established BiH as a party to the Genocide Convention. BiH assumed its obligations under the Genocide Convention from the date on which it “assumed responsibility for its international relations,” as stated by the UN Secretary-General.

It's unfortunate that Kosovo’s government has so far failed to implement this commitment and thereby advance Kosovo’s international legal standing as an independent state.

To transfer this to Kosovo, in its 2008 Declaration of Independence Kosovo has already committed that:

“We hereby undertake the international obligations of Kosovo, including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK) and treaty and other obligations of the former Socialist Federal Republic of Yugoslavia to which we are bound as a former constituent part (…).”

This is a clear statement of succession into international treaties.

It is unfortunate that Kosovo’s government has so far failed to implement this commitment, send notices of succession to such international treaties, and thereby advance Kosovo’s international legal standing as an independent state.

The prohibition of genocide is one of the fundamental norms of international law, also known as ius cogens, and the Genocide Convention codifies this norm in the interest of humanity and not of individual states.

According to the ICJ, the Genocide Convention is designed to enable as many states as possible to participate, and “the complete exclusion from the Convention of one or more states would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis.”

Membership of the UN is not a prerequisite for becoming a party to the Genocide Convention.

There is therefore a bias in favor of becoming a party to the Genocide Convention that supports Kosovo’s case.

Critics may say that Kosovo is not a member of the UN and that the UN secretary-general will not deposit Kosovo’s notice of succession. This does not hold. Membership of the UN is not a prerequisite for becoming a party to the Genocide Convention.

The role of the UN secretary-general as a depositary is also just technical and administrative, and in no way political. The UN secretary-general will send a depositary notification to the state parties to the Genocide Convention informing them about Kosovo’s notice of succession — and that is all.

Furthermore, the UN has consistently maintained a status-neutral position toward Kosovo, neither confirming nor denying that Kosovo is a state.

Finally yet importantly, the ICJ confirmed in its 2010 advisory opinion that Kosovo’s declaration of independence does not violate international law, including Resolution 1244 (1999), and that the institutions of Kosovo, which declared independence, would act outside the ambit of Resolution 1244.

It is worth noting that Palestine, whose statehood is as contested as Kosovo’s, became party to the Genocide Convention in 2014. Kosovo’s government institutions, which are so vocal about Serbia’s war crimes, have not even made an effort to date to become a party to the Genocide Convention.

Suing Serbia before the ICJ

Once a party to the Genocide Convention, Kosovo could then apply Article IX of the Genocide Convention — which established the jurisdiction of the ICJ for disputes under the Convention — to initiate legal proceedings against Serbia before the ICJ.

Critics may say that this is not possible because the genocide occurred before Kosovo became party to the Genocide Convention. But there is already precedent here.

In 1996, the ICJ ruled in the Bosnia and Herzegovina v. Yugoslavia case that there is no time limit in the Genocide Convention to retrospectively deal with genocide “from the beginning of the conflict.” This means that the ICJ would have jurisdiction even if the conflict occurred before Kosovo officially succeeded to the Genocide Convention.

Critics may also suggest that suing Serbia would be impossible because it filed reservations in regard to Article IX of the Genocide Convention in 2001.

Again, there is precedent here in Kosovo’s favor.

A reservation is an instrument under international law that allows states to exclude or modify certain provisions of an international treaty. When Serbia filed such a reservation it stated that it would not apply Article IX of the Genocide Convention, which gives the ICJ jurisdiction for genocide cases, and that any dispute before the ICJ concerning the Genocide Convention would require Serbia’s consent.

Again, there is precedent here in Kosovo’s favor: In Croatia v. Serbia in 2008, the ICJ ruled that for the period until 2001 Serbia would be bound by the Genocide Convention without any reservations.

Kosovo could also evade any reservations made by Serbia by objecting to them in its notice of succession to the Genocide Convention, as done so by both Croatia and BiH. They argued that Serbia’s reservation that excludes recourse to the ICJ for genocide would not be consistent with the purpose of the Genocide Convention and would therefore be invalid under international law. Kosovo can make the same argument.

In addition, Kosovo should deposit a declaration with the ICJ accepting the jurisdiction of the ICJ under Article 35 (2) of the Statute of the ICJ. This is a mechanism for states that are not members of the UN and not party to the ICJ Statute, such as Kosovo, to establish the jurisdiction of the ICJ for disputes with other states.

The UN Security Council authorized — in a resolution of October 15, 1946 — the ICJ to decide on such declarations. Palestine submitted such a declaration to the ICJ on July 4, 2018.

Based on this declaration, in September 2018 Palestine initiated legal proceedings before the ICJ against the United States for its decision to relocate the U.S. Embassy to Jerusalem, and the ICJ is now dealing with this case. If Palestine, whose statehood is as contested as Kosovo’s, can do this, why can’t Kosovo make a similar declaration to the ICJ, too?

Proving genocide

Taking these steps only fulfills the formal requirements to sue Serbia before the ICJ. Kosovo still has to prove that Serbia has indeed committed genocide in Kosovo.

While Kosovo’s government institutions take it for granted that Serbia has committed genocide in Kosovo, both Croatia and BiH had a hard time to prove that Serbia had indeed committed genocide. Croatia and BiH initiated legal proceedings against Serbia before the ICJ but only BiH succeeded in establishing that Serbia had violated the obligation to prevent genocide in respect of the events in Srebrenica in July 1995, while Croatia completely failed.

The main difficulty when it comes to genocide is to establish that a state had the intent to commit genocide, for which the ICJ has a very high threshold. Kosovo will face the same challenges but it could learn from the experiences of Croatia and BiH and design a more effective litigation strategy.

But even if Kosovo cannot prove genocide, the mere fact that Kosovo would sue Serbia before the ICJ, and the ICJ would decide on the case, would confirm Kosovo’s statehood as only states have legal standing before the ICJ.

This is perhaps as important as winning the case. It would give Kosovo a much stronger legal position in negotiations with Serbia as the issue of Kosovo’s statehood would be determined in the affirmative by the ICJ.

Legal proceedings against Serbia could refocus international attention to a part of the Kosovo conflict that has still not attained the necessary legal and political attention.

It is highly unlikely that the ICJ would determine that Kosovo is not a state for the purpose of the Genocide Convention given (i) its own advisory opinion on Kosovo’s declaration of independence, (ii) the fact that Kosovo is a state member of two “Specialized Agencies” of the UN, i.e. the World Bank and the IMF, and (iii) Kosovo is party to many multilateral and bilateral international agreements with states and international organizations.

The mere fact that Kosovo were to sue Serbia could also be used as a threat and a bargaining chip during negotiations with Serbia. What is perhaps more important, at a time when Kosovo is on the legal defensive due to the Kosovo Specialist Chambers, legal proceedings against Serbia before the ICJ could refocus international attention to a part of the Kosovo conflict that has still not attained the necessary legal and political attention, not even from Kosovo’s own government.

Legal action before the ICJ would require thorough professional preparation and a high degree of political commitment that goes beyond the short term and populist political calculations that seem to characterize the current initiatives by Kosovo’s institutions.

But pursuing legal proceedings against Serbia for genocide before the ICJ would be a much better option than these senseless undertakings.

Feature image: Original image by Arianit Dobroshi, altered by K2.0.

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