The breakup of Yugoslavia and prematurate state recognition
- 08 Nov 2004
INTRODUCTION
There are many potential explanations for the recent break-up of Yugoslavia, some canonical, others apocryphal. The ongoing trial of Slobodan Milosevic has revealed a sharp distinction between the two kinds of accounts, to the point where the trial is as much a contest of different explanations as of the accused himself. From the viewpoint of the canonical version, the trial has the advantage of making the disintegration of Yugoslavia revolve around Milosevic while shifting the focus conveniently away from the part that the Western powers played in that break-up. From the standpoint of the apocryphal version, the trial has the advantage of turning the accused into a prophet.
This paper attempts to explain how the unbridgeable gulf between those opposite versions came into being. It does so by discussing the relationship of the premature recognition of the former Yugoslav republics to the wars that ensued on the territory of former Yugoslavia and to the legal mechanisms that have been set up to address problems caused by those wars. The more even-handed the approach, the more slanted it will seem to the partisans on both sides. This paper suggests that the wars were due in large part to the premature recognition of the former Yugoslav republics. It attributes the later isolation of Yugoslavia to the fact that the Federal Republic of Yugoslavia lost the “recognition war”, even though it had classic legal doctrines concerning recognition on its side.
PREMATURE RECOGNITION
According to a classic doctrine of international law, premature recognition of a State is an infringement of another State’s sovereignty and hence a violation of international law. That traditional view has, however, been subjected to apparent modification in recent decades. Since the recognition of Slovenia and Croatia by Germany in December of 1991, premature recognition has not only been condoned. The recognizing States have also presumed the moral right to condemn the State whose rights the premature recognition has violated.
Since the changes in geopolitics in the 1990s, international organizations have become rubberstamps of power politics. Nothing illustrates that transformation better than Resolution 1244(1999) adopted by the Security Council on June 10, 1999. While NATO was still bombing Yugoslavia, the Security Council included the following statement in the preamble to that resolution: “Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2”.
That statement was the culmination of a long series of developments. When Yugoslavia declined to recognize Slovenia and Croatia, and hence refused to submit an application for membership in the UN, it was excluded from the work of the General Assembly of the United Nations by General Assembly resolution 47/1 adopted on 22 September 1992. Yugoslavia, or the rump-Yugoslavia as it was then called, regarded itself as the only successor state to the former Yugoslavia, which was one of the original members of the UN. It thought that it did not have to submit an application for membership in the UN. The General Assembly concluded conversely that:
the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and, therefore, decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly.
That refusal to allow the Federal Republic of Yugoslavia to participate in the work of the General Assembly had far-reaching consequences. Regardless of the unresolved status of Yugoslavia, it was still a key player in the Balkans. It was, in part, to solve that discrepancy that the International Criminal Tribunal for Yugoslavia was created by Security Council resolution 827(1993).
After Yugoslavia was excluded from the work of the General Assembly, its status in the International Court of Justice remained unclear. The Court seemed regularly to interpret its admissibility rules to the detriment of Yugoslavia. That downward spiral was reinforced by the more or less openly anti-Serb line adopted by the ICTY.
As the ICTY has been one of the very few interfaces between the moribund Yugoslavia and the international community, it has played a key role in the design of the political map of the Balkans. As the independence of the former Yugoslav republics triggered a chain reaction within those republics, it has fallen to the ICTY to keep those developments in check. It is hardly a coincidence that, in many cases, the accused before that Court have been leaders of entities that emerged on the territories of the newly-recognized States.
Those smaller entities have been caricatured as Serb puppet states that used independence as a stepping stone to full integration with Serbia. The ICTY prosecution seems to favor the theory that those entities were part of the Serbs’ expansionist Greater Serbia ideology. That position is hard to reconcile with the hands-off policy that the Belgrade regime displayed during the Croatian war, which served to alienate many Serbs from Milosevic, who was then on the ascendancy in Belgrade. One should not forget that in many cases the entities would have settled for autonomy within their new states, and that when they did turn to Belgrade, Belgrade’s response was chilling. Neither were all small entities Serb. On the Bosnian territory, the Croats tried to create their own state called Herceg-Bosna. There was even a Bosnian Muslim entity that resisted the Muslim regime in Sarajevo. Its leader, Fikret Abdic, has subsequently been labeled as a collaborationist because of his cooperation with the Serbs.
COLLAPSE OF THE COMMUNIST BLOC
It is appealing to view the disintegration of Yugoslavia from the perspective of the wholesale collapse of communism in Eastern Europe in the 1990s. The international community was eager to apply the same solutions to all East European states in the wake of the collapse of the communist bloc. Its mistake was forgetting that Yugoslavia had not been part of the communist bloc since Marshal Tito broke off relations with Joseph Stalin in the 1950s. Yugoslavia had been proud of its fierce independence and its disproportionate importance in international politics, especially as a leader of the Non-Aligned Movement that sought to present an alternative to both the capitalist bloc and the communist bloc. Communication between the Western powers and Yugoslavia broke down partly due to the fact that the West insisted on portraying the Belgrade power-holders as the last vestiges of communist power in Europe.
Neither is the situation of Croatia, Slovenia or Bosnia similar to that of the Baltic States, notwithstanding attempts to find parallels among those former Soviet republics and the Yugoslav breakaway republics. The Baltic States (Estonia, Latvia, and Lithuania) had been independent before the Second World War. None of the former Yugoslav republics had been independent before, with the exceptions of Montenegro and Serbia that were paradoxically the only ones to stay in the federation. One should also mention that the Independent State of Croatia had been a Nazi puppet state during the Second World War.
Neither was it immediately clear what separated the Serbs, the Croats and the Bosnians, and how the existence of the new nation states was to be justified. The Serbs, the Croats, and the Bosnians speak the same language, notwithstanding its later dissection into Serbian, Croatian, and Bosnian tongues. The distinguishing characteristic turned out to be anachronistic and hence all the more devastating: religion. Because the distinctions were so subtle, the need for a defining state became all the more pressing, as did the need to drive the deceptively similar elements out. The result was the much-spoken-of “ethnic cleansing,” which occurred on all sides.
GERMANY
As nationalistic fervor in Croatia mounted, the state’s Nazi past came to occupy a central place in Serb rhetoric. The parallels appeared inescapable: the reunification of Germany followed a pattern opposite to the widespread disintegration of the old communist states, and it was easy to see something sinister in the central role that Germany played in the independence of Croatia and Slovenia. The Germans seemed to be back with a vengeance. After the Second World War, they had been declared outlaws by Yugoslav legislation, which led to the exodus of half a million Germans from Yugoslavia. That stigmatization was only part of a larger whole. In all, millions of Germans were expelled from Eastern Europe after the Second World War, and hundreds of thousands of them were killed.
The fact remains that there is something bewildering about the hurried recognition that Germany gave to Croatia and Slovenia on December 23, 1991. By contrast, Germany’s European partners were much more reticent. The European Community had declared that it would not support the independence of the new republics but it eventually behind Germany on January 15, 1992. Similarly, US Secretaries of State Lawrence Eagleburger and Warren Christopher criticized the recognition of Croatia and Slovenia by the EU, but the US eventually followed suit in April of 1992.
The international about-face can be traced back to the internal dynamics of the European Community, which was trying to reach a compromise on the Maastricht Treaty. Great Britain was desperate to get out of the European Monetary System. Germany was just as desperate to have the backing of the European Union for its recognition of Croatia and Slovenia. What followed was a trade-off: Germany agreed to allow Great Britain to opt out of the EMS, if Great Britain agreed to give its backing to the recognition of Croatia and Slovenia.
UTI POSSIDETIS
The general principle that guides the recognition of breakaway states is called uti possidetis. It means that the administrative borders of a disintegrating state should be preserved by the new states. One might argue that the principle of uti possidetis has been used to bestow legitimacy to policies that would otherwise be called premature recognition. Uti possidetis is not a rule but a principle. Nevertheless, the international community has adhered to the principle with an almost religious devotion. In the tumult of the 1990s, the international community could point to a judgment of the International Court of Justice (22 December 1986) in a case concerning a frontier dispute between Burkina Faso and Republic of Mali. The Court characterized the uti possidetis principle as follows:
[T]he principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence wherever it occurs. Its obvious purpose is to prevent the independence and stability of the new States endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administrative power.
The uti possidetis principle played a central role in the breakup of Yugoslavia. The frontiers of the breakaway republics were one of the issues discussed by the Arbitration Committee of the European Union on Yugoslavia’s dissolution (the so-called Badinter Committee), which was created in August of 1991. One of the questions put to the Committee was: “Can the internal boundaries between Croatia and Serbia and between Bosnia-Herzegovina and Serbia be regarded as frontiers in terms of public international law?”
The problem was not a post-colonial situation, as in Burkina Faso. However, as the ICJ stated in its judgment quoted above, the principle of uti possidetis is to be applied to “the obtaining of independence wherever it occurs”. Quite in line with the “general principle”, the Committee determined in Opinion No. 3 that the internal Yugoslav borders should remain in place.
CROATIA
The recommendations of the Badinter Committee were loyal to Tito’s design for Yugoslavia. He was of the opinion that any attempt to excise the Serb-populated areas in Croatia from the rest of Croatia would have resulted in a war. “Fratricidal struggles” were also what the uti possidetis principle avowed to avoid, according to the judgment of the ICJ.
Yet, fratricidal struggles were exactly what ensued. To understand the chain reaction that was unleashed by the premature recognition of the breakaway republics, one has to bear in mind the peculiar demography of the former Yugoslavia. The Serbs were by far the most populous nation. The problem was that about a quarter of the Serbs lived outside Serbia and, in its drive to create new nation states along the borders of the Yugoslav republics, the international community became increasingly impatient with and dismissive of the Serbs who lived outside Serbia.
Even if the names of the republics corresponded to the constituent nations of the Yugoslav federation (Croats, Slovenes, and Serbs), one should not ascribe any normative power to the mere names of the constituent republics. When the area of modern Croatia and Slovenia joined Serbia and Montenegro to form Yugoslavia in 1918, it was called the State of Slovenes, Croats and Serbs. That nomenclature shows that the Serbs were recognized as a legitimate nation outside Serbia just as much as they were noticed in it. The roots of the Serb population in Croatia go back at least as far as the creation of the Military Frontier (Krajina) in the 1500s by the Austrian Empire against the expanding Ottoman Empire.
Whether there were any changes to the borders or not, the independence of Croatia was destined to lead to bloodshed. Hindsight shows that the uti possidetis principle did not avoid it. Neither would the proposal that the Socialist Federal Republic of Yugoslavia put forward in its dying days have meant any change for the better. The Belgrade government went back to the founding document of Yugoslavia that dated from the end of the Second World War. The Anti-Fascist Council for the National Liberation of Yugoslavia (AVNOJ) had determined that the socialist Yugoslavia was to be a federation of its constituent nations.
The Socialist Federal Republic of Yugoslavia used that formulation to argue that the nations had to negotiate the borders of the new republics separately, while admitting the right of self-determination of each constituent nation. It is unlikely that that solution would have prevented bloodshed in Croatia, not to mention that fact that it would have been unworkable in Bosnia because the Bosnian Muslims were not one of the constituent nations at the time of the AVNOJ.
The best solution would in all probability have been the one that the international community was trying hard to make work until early-1992. More particularly, in its Opinion No. 2 the Badinter Committee stressed that the minority right of the Serbs in Croatia as well in Bosnia and Herzegovina had to be guaranteed by international law.
Accordingly, Croatia was pressured by the international community to enact a Constitutional Law on Human Rights and the Rights and Freedoms of National and Ethnic Communities and Minorities in 1991. The resulting document stated that the Republic of Croatia was to encourage universal development of national and ethnic groups or minorities (Art. 3) and that it was to assist the development of relations among national and ethnic communities or minorities with the people in their parent country to promote their national, cultural, and linguistic development (Art. 4). Ethnic and national communities or minorities were to have the right of self-organization and association to realize their national or other rights (Art. 4(2)). Ethnic and national communities or minorities were entitled to cultural autonomy (Art. 5).(1)
The international community has changed its direction dramatically since 1991, which is obvious when one considers current attitudes towards the autonomous entities that the Serbs did institute in Croatia. It was probably with those internationally-recognized rights in mind that the Serbs declared three Serbian Autonomous Districts (SAOs) in late-April of 1991: one in Krajina; one in Western Slavonia; and, one in Slavonia, Baranja and Western Srem. After December 19, 1991, the SAO Krajina became known as the Republic of Serbian Krajina (RSK), and on February 26, 1992, the rest of the Serbian Autonomous Districts joined it. The Serbs also declared independent states or areas in the cities of Dubrovnik and Zagreb.(2)
The declaration of independence by those entities may have been out of line with the plans of the international community, but it must be admitted that the plans of the international community had been demolished by the other actors before that. Only, the international community has been particularly slow to forget the part that the Serbs played in that process. For instance, the ICTY has indicted Milan Babic and Milan Martic, both of them leaders of the Republic of Serbian Krajina.
Unfortunately, the indictments of the ICTY are only one side of the story. One has only to remember the cavalier fashion in which Croatia dealt with the Constitutional Law on Human Rights and the Rights and Freedoms of National and Ethnic Communities and Minorities. The UN sent the UNPROFOR to the Serbs’ rescue in Croatia, but the UNPROFOR ended up being attacked by Croatian forces. One contemporary source described the activities of the UN as follows:
UNPROFOR is deployed in certain areas in Croatia, designated as United Nations Protected Areas (UNPAs), in which the United Nations Security Council judged that special interim arrangements were required to ensure that a lasting cease-fire was maintained. The UNPAs are areas in which Serbs constitute the majority or a substantial minority of the population and where inter-communal tensions have led to armed conflict. There are three UNPAs: Eastern Slavonia, Western Slavonia and Krajina.(3)
One can easily see that the three areas where UNPROFOR was deployed corresponded to the three autonomous districts instituted by the Croatian Serbs. After the declaration of independence of the Serbian Krajina, the UNPROFOR mandate was expanded to include support for the Yugoslav National Army (JNA) in the “pink zones”:
On 30 June 1992, the Security Council, by its resolution 762(1992), authorized UNPROFOR to undertake monitoring functions in the ‘pink zones’ – certain areas of Croatia controlled by the JNA and populated by then largely by Serbs, but which were outside the agreed UNPA boundaries.(4)
However, Croatian forces interfered with the UN mission:
On 22 January 1993, the Croatian Army launched an offensive in a number of locations in the southern part of UNPROFOR’s Sector South and the adjacent pink zones. The Croatian Government stated that it took this action out of impatience with the slow progress of negotiations in respect of various economic facilities in and adjacent to the UNPAs and ‘pink zones’.(5)
The disregard by the Croatian government of its own international obligations culminated in Operation Storm on August 4-7, 1995. Operation Storm put an end to the Republic of Serb Krajina. About half a million Serbs were driven from Croatia by the end of 1995. The intense fighting in Croatia drove about as many Croats from their homes, as well. The role played by the US in that operation is an open secret. The Pentagon had contracted Military Professional Resources, Inc. (MPRI) to support the Croatian forces. That explains the largely negative publicity that Serb entities received afterwards.
BOSNIA
The recognition of Bosnia followed soon after the recognition of Croatia and Slovenia, despite the fact that the reservations expressed by the Badinter Committee had been greater in relation to Bosnian independence. Even if the US Secretaries of State Eagleburger and Christopher initially criticized the recognition of Croatia and Slovenia by the EU, the US eventually followed suit in April of 1992, and the EU and the US recognized Bosnia approximately at the same time in early-April of 1992.
The period following the recognition of Bosnia was dominated by the war as well as by a string of peace proposals. It should not be forgotten, however, that those peace proposals relied on the plan for the division of Bosnia presented by the Portuguese special representative to the European community, José Cutilheiro. The plan was signed by all parties, Bosnian Muslims, Serbs, and Croats on March 18, 1992. The Cutilheiro plan was not a peace proposal because the war in Bosnia had not even started yet. One of the signatures was that of the Bosnian Serb leader Radovan Karadzic, who is widely blamed for the Bosnian war.
The war followed the withdrawal of the Bosnian Muslim side from the plan, which coincided roughly with the recognition of Bosnia. The withdrawal of its signature by the Bosnian Muslim side has been attributed to the influence of Warren Zimmerman, who was the US ambassador to Belgrade at the time. That counsel has been explained by the reluctance of the US to send the wrong signal to former Soviet republics that had managed to break away along their administrative borders, according to the uti possidetis principle. From that perspective, the division of Bosnia into ethnic cantons, which was put forward in the Cutilheiro plan, would have opened the door to ethnic ruptures in breakaway states all over the world.(6)
The apparent failure of the Cutilheiro plan did not stop the international community from promoting the same approach in subsequent peace proposals. The most noticeable change was that those peace proposals veered away from cantonization to federation and confederation. One could argue, however, that the subsequent developments had the potential of sending an even stronger signal to breakaway states all over the world to disregard the administrative borders. The two entities in Bosnia and Herzegovina did not follow the existing administrative borders.
First, the Vance-Owen Plan of January 2, 1993 envisaged the division of Bosnia into ten provinces, nine of which were ethnically defined, allotting three provinces each to the Croats, the Bosnians, and the Serbs. Significantly, the Bosnian Serb leader Karadzic signed the Vance-Owen Plan on May 2, 1993, just as he had signed the Cutilheiro Plan. The demise of the plan was attributable to the fact that ninety-six percent of Bosnian Serbs rejected the plan in a referendum held on May 15 and 16, 1992.
Second, the Owen-Stoltenberg Plan followed on August 20, 1993. It would have allotted fifty-two percent of the territory of Bosnia to the Serbs. That plan was regarded as too generous to the Serbs, and the Croat and the Muslim side rejected it.
Third, the Contact Group Plan of July 5, 1994 would have allotted forty-nine percent of the territory of Bosnia to the Serbs and the rest to the Muslims and the Croats. However, it was then the Bosnian Serb side that rejected that plan in a referendum held on August 27 and 28, 1994. Despite its failure, the Contact Group Plan did mark a major change in international politics in relation to the Bosnian crisis. From then on, the Contact Group, and hence the US, would play a major part in the Balkans. Until the forming of the Contact Group, the US had followed the events from a distance and was reluctant to work with either Owen or Stoltenberg. The idea for the Contact Group came from Owen. The Contact Group consisted of the foreign ministers of those states that were regarded as necessary in establishing peace in Bosnia: the US; Russia; France; Great Britain; and, Germany.(7) In practice, the inclusion of four permanent Security Council members ensured the transformation of the Contact Group proposals into Security Council resolutions without a veto from any of the five permanent members.
The failure of the Contact Group Plan was predictably attributed to Serb resistance. With the benefit of the hindsight, that seems understandable. The Serbs were the ones to lose the least when the war was over. When peace was finally reached with the Dayton Accords, the Serbs did get an autonomous area, Republika Sprska. On the other hand, the Muslims were given less territory in the Dayton Accords than in the Cutilheiro plan, as former Ambassador of Canada to Belgrade James Bisset has pointedly noted to punctuate his view that those who started the war were the ones who lost it.(8)
It would seem that all the peace plans suffered from the same defect. Even if the Serbs made up only about thirty percent of the population of Bosnia, they were allotted approximately half of its territory. However, it should be borne in mind that the Serb population lives mainly in the countryside where population density is considerably lower than in the cities, where (for historic reasons) the Muslim population is concentrated. In other words, if all the Serb-dominated areas had been allotted to the Serbs, little other than the cities would have been left to the Muslims. The ethnic cleansing aggravated the existing imbalance. During the war, that imbalance translated into the creation of the UN safe areas, which included five designated Muslim-dominated cities surrounded by the Serb-held countryside in Republika Srpska (besides the capital Sarajevo).
PROBLEMS OF SUCCESSION
The regime in Belgrade refused to recognize Croatia, Slovenia, or Bosnia. However, it did adopt a new constitution in April of 1992 to reflect the dissolution of the old Socialist Federal Republic. Serbia and Montenegro were then the only republics left in the federation.
The Federal Republic communicated to the Secretary-General of the UN on April 27, 1992 that it would “strictly abide by all the commitments that the former Socialist Federal Republic of Yugoslavia assumed internationally” (UN doc. A/46/915). On the other hand, Yugoslavia also held on to the rights of the old Socialist Federal Republic. Consequently, it refused to apply for UN membership because it considered itself to be the only legitimate successor state to the former Yugoslavia.
The organs of the United Nations stated that Yugoslavia’s claim to continue automatically the membership of the former Yugoslavia “has not generally been accepted”, and decided that the new Yugoslavia “should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly” (Security Council resolution 777 (1992) of September 1992 and General Assembly resolution 47/1 of 22 September 1992). On the other hand, the “considered view” of the United Nations Secretariat regarding the practical consequences of those decisions was, among other things, that Yugoslavia’s membership in the Organization was “neither terminated nor suspended”, that Yugoslav missions at United Nations Headquarters and offices could continue to function, receive and circulate documents, and the like. (United Nations doc. A/47/485 (1992).
Consequently, in its judgment in the genocide case Bosnia v. Yugoslavia of 1996, the International Court of Justice stated that
resolution 47/1 did not inter alia affect the FRY’s right to appear before the Court or to be a party to a dispute before the Court under the conditions laid down by the Statute. Nor did it affect the position of the FRY in relation to the Genocide Convention.
That view has been challenged by later developments. Yugoslavia recognized the jurisdiction of the Court during the Kosovo bombing in 1999. Obviously, that recognition gave the Court the opportunity to modify its own liberal view expressed in the Bosnia case. The Court concluded that Yugoslav recognition of the jurisdiction of the Court did not extend back in time to the beginning of the bombing.
A parallel development was the accession by Yugoslavia to the Genocide Convention in 2001. Croatia presented the following objection to that accession on May 18, 2001:
The Government of the Republic of Croatia objects to the deposition of the instrument of accession of the Federal Republic of Yugoslavia to the Convention on the Prevention and Punishment of the Crime of Genocide, due to the fact that the Federal Republic of Yugoslavia is already bound by the Convention since its emergence as one of the five equal successor states to the former Socialist Federal Republic of Yugoslavia.
There are several inconsistencies in Croatia’s objection, but they reflect the inconsistencies in Yugoslavia’s legal status in general. The main problem was that Croatia’s objection did not acknowledge the fact that Yugoslavia applied for UN membership. Obviously, Yugoslavia’s UN memership changed Yugoslavia’s status dramatically enough to merit the accession to the Genocide Convention. On the other hand, Yugoslavia’s UN membership application was an anomaly in itself because the “considered view” of the United Nations Secretariat had been that Yugoslavia’s membership in the Organization was “neither terminated nor suspended”.
INTERNATIONAL CRIMINAL TRIBUNAL FOR YUGOSLAVIA
Legal basis
The ICTY has been criticized severely for too many of its actions to enumerate. For instance, it was not clear whether the Security Council had the power to create a judicial organ, and that lack of a clear legal basis was one of the objections to which it had to respond in the first case before it. In its Decision of October 2, 1995 on the Defence Motion for Interlocutory Appeal on Jurisdiction in the Tadic case, the ICTY itself stated that “the establishment of the International Tribunal falls squarely within the powers of the Security Council under Article 41” (para. 36).
Despite that decision of the tribunal, its legality on the basis of Article 41 of the UN Charter remains suspect. One cannot ignore the realities of international politics that necessitated the establishment of the tribunal. It was because of the pressing need to do something about the war in Croatia and Bosnia that corners had to be cut. The Secretary-General of the UN referred to the urgency of the situation in paragraph 23 of his report of May 3, 1993. For instance, he explained why the tribunal had to be established by the Security Council instead of the General Assembly, thus admitting that there was a potential problem. He accounted for the discrepancy as follows: “This approach would have the advantage of being expeditious and of being immediately effective as all States would be under a binding obligation to take whatever action is required to carry out a decision taken as an enforcement measure under Chapter VII.”(9)
The legal problem was that as long as Yugoslavia’s status in the UN was unclear, the International Court of Justice had to decide Yugoslavia’s status before the Court case by case. According to Art. 93(1) of the UN Charter, “[a]ll Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice”. If Yugoslavia was not a member of the UN and had not acceded to the Statute of the ICJ separately, then the ICJ had no jurisdiction in cases involving Yugoslavia. Conversely, if Yugoslavia did not accede to the Statute of the ICJ but appeared before the Court anyway, then it could only be a member of the UN. That would have been undesirable from the viewpoint of those actors, including the UN itself, which had given their support, in one form or another, to the independence of the breakaway republics.
In the midst of the confusion, the catchphrase of “failed state” gained ground. The reasoning behind it dictated that even if Yugoslavia was a state, and a member of the UN at that, it was a failed state. In such a situation, the ICJ would prove an inadequate forum and the legal vacuum had to be filled by creating a special judicial organ, the International Criminal Tribunal for former Yugoslavia. The ICTY would thus create at least an illusion of legality amidst illegality. It also had the advantage of discrediting the legal establishment of the state in question, which made it possible to address many of the problems in a judicial organ. Quite in line with this reasoning, Daniel Thürer has written in The “Failed Sate” and International Law that “the Tribunals for the former Yugoslavia and for Rwanda have also been created to take the place of a judiciary which has collapsed or is no longer functioning, i.e. to fill a ‘sovereignty vacuum'”.(10)
Finance
The lack of an adequate legal basis is problematic enough. The real difficulty, however, is the partiality, perceived or not, of the tribunal. That problem is more concrete, which means that it has to do with the financing of the tribunal. The same Security Council resolution 827 (1993) seems to act as a magnet for trouble. In paragraph 5 of the resolution, the Security Council “[u]rges States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel.”
Revenue has been a decisive factor in the prosecutorial policy of the tribunal. According to one apocryphal source, NATO’s top spokesman Jamie Shea admitted on May 17, 1999 that “when Justice Arbour starts her investigation, she will because we will allow her to.”(11) Shea then went on:
NATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers, and of course to build a second chamber so that prosecutions can be speeded up so let me assure that we and the Tribunal are all one on this, we want to see war criminals brought to justice and I am certain that when Justice Arbour goes to Kosovo and looks at the facts she will be indicting people of Yugoslav nationality and I don’t anticipate any others at this stage.
Temporal Jurisdiction
Problems relating to the tribunal’s temporal jurisdiction have also been raised. That jurisdiction extends too far back in time but also too far forward in time. Article 8 of the Statute of the ICTY violates the prohibition against retroactivity, i.e. the principle of legality: the tribunal was founded in 1993, but its jurisdiction commenced as far back as 1991. On the other hand, the Statute did not fix for the tribunal’s jurisdiction any “expiry date”, which was to be established later. Paragraph 2 of resolution 827 (1993) limited the temporal jurisdiction to “between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace”.
From that summary it should be clear that the temporal jurisdiction of the tribunal was expected to terminate as soon as peace was restored. It is a completely reasonable proposition that peace was restored by the Dayton Accords in 1995. However, the ICTY lived on to play a prominent role in the Kosovo war as late as in 1999 with the indictment of Yugoslav president Milosevic.
Recognition of the tribunal
The transfer of Milosevic to The Hague accelerated criticisms of the ICTY. Those observers who adhered to classic doctrine could not accept an indictment of the head of a state that had not recognized the tribunal before he was indicted. To palliate the problem, some commentators have tried to argue that Milosevic did recognize the jurisdiction of the tribunal when he signed the Dayton Accords as a guarantor for the Bosnian Serbs. Art. II(8) of Annex 4 (Constitution of Bosnia and Herzegovina) of the Dayton Accords provides that “[a]ll competent authorities in Bosnia and Herzegovina shall cooperate with and provide unrestricted access to… the International Tribunal for the Former Yugoslavia…”
However, Milosevic has made it clear that he does not recognize the jurisdiction of the tribunal. That is why he has refused to enter a plea in his own trial.
One can ascribe several consequences to that discrepancy between the non-recognition of the tribunal and the signing of the Dayton Accords. One could argue that Milosevic should answer for the crimes of those who do not recognize the tribunal’s jurisdiction because he is their guarantor. However, that position would be difficult to reconcile with general principles of criminal law, especially the principle of individual criminal responsibility enshrined in the Statute of the ICTY and underlined in the Secretary-General’s report of May 3, 1993.
One could also argue that Milosevic’s reluctance to recognize the tribunal’s jurisdiction lumps him together with the persons who were more or less explicitly targeted by that particular provision of the Dayton Accords. Hence, Milosevic would be part of the same “joint criminal enterprise”. However, that status would have undermined Milosevic’s adequacy to act as a guarantor in the first place.
It is apparent that the primary targets of the Dayton Accords were Bosnian Serb leader Karadzic and General Ratko Mladic. They were indicted by the Tribunal for the first time on July 24, 1995. Article IX(1) of Annex of the Dayton Accords states:
No person who is serving a sentence imposed by the International Tribunal for the Former Yugoslavia, and no person who is under indictment by the Tribunal and who has failed to comply with an order to appear before the Tribunal, may stand as a candidate or hold any appointive, elective, or other public office in the territory of Bosnia and Herzegovina.
The indictment of Karadzic, in particular, was of capital importance to the design of the political map of the Balkans, because he was seen, rightly or wrongly, as the greatest obstacle to peace in Bosnia. As soon as he was out of the picture, the Bosnian Serbs were thought to be ready for limited autonomy in the form of Republika Srpska, which was then embedded in the Dayton Accords.
However, the Serbs’ failure to hand over the two principal indictees, Karadzic and Mladic, could be attributed to their tacit non-recognition of the Tribunal, which would then constitute a breach of the Dayton Accords. Because Milosevic, who has refused to recognize the jurisdiction of the Tribunal himself, was the guarantor for the Bosnian Serbs, then he should apparently be treated on a par with Karadzic and Mladic. If the Serbs’ non-recognition of the Tribunal could act as an excuse not to recognize Republika Srpska, then the non-recognition of the Tribunal by their guarantor, Milosevic, could entail, by the same convoluted logic, the non-recognition of the Federal Republic of Yugoslavia, which he had supposedly transformed into a dictatorship. That would explain why the ICTY was kept alive even after “the restoration of peace” in 1995. In other words, there was a sovereignty vacuum, and the ICTY was there to fill it.
Ironically, the persons who were involved in the Dayton peace process, like the Bosnian Serb president Momcilo Krajisnik and Milosevic himself, were indicted later by the Tribunal. If one were to indulge in a reductio ad absurdum, one could say that the Serbs’ failure to hand over Karadzic and Mladic led to the indictments of Krajisnik and Milosevic. That would mean that the Dayton Accords were brought into existence by people who were not competent to participate in them. In other words, if Karadzic and Mladic were unworthy of participating in the peace process, because they were indicted by the Tribunal, so were Krajisnik and Milosevic, who were indicted afterwards for the acts that they had allegedly committed before the conclusion of the Dayton Peace Accords. However, that argument would deprive the Dayton Accords of their legal force. That, in turn, would mean that Karadzic was not divested of his power by the Dayton Accords. There would also have to be another basis for the indictments of Krajisnik and Milosevic as well, in which case the link to the ICTY would be broken, because its jurisdiction was to come to an end “upon the restoration of peace” and there would be no carry-over to Yugoslavia through Milosevic’s participation in the peace process.
RELATIONSHIP BETWEEN THE ICTY AND THE ICJ
The relationship between the ICTY and the ICJ remains a mystery. Even if the ICTY was originally meant to bring order to legal chaos, it ended up mudding the waters further. Yugoslavia’s status before the ICJ was unclear because Yugoslavia’s status in the UN as a whole was unclear. However, the ICTY is an organ of the UN. Even if the ICTY tries individuals, it is obvious that the guilt of an individual hinges on the political position that he or she held in the state. That is why the ICTY could be used as a backdoor to the judicial manipulation of the political processes where the ICJ had failed.
At some point, the policies of the ICTY and the ICJ reached a synergy. The higher up in the Yugoslav governmental hierarchy the ICTY went with its indictments, the more plausible it became that the state would become a failed state and hence unworthy of being a party to a dispute before the ICJ. On the other hand, after the judgment in the Bosnia genocide case at the ICJ it was only a matter of time before the ICTY would start issuing corresponding indictments. And as the ICTY handed down more genocide judgments in lower-level cases, the more plausible it became that those cases would reach the top of the governmental hierarchy.
The decisive judgment was handed down by the ICTY in the Krstic case in 2001 after Milosevic had been transferred to The Hague. Bosnian Serb General Krstic was convicted of genocide in Bosnia. The Krstic judgment will probably seal the fate of the genocide charges against Milosevic as well, no matter how flimsy the prosecution has been on that point in the Milosevic trial. The prosecution is desperate for a genocide conviction of Milosevic to legitimate his otherwise questionable transfer to The Hague, which in turn brought about the sweeping political changes in Yugoslavia.
How tightly linked the personal fate of the individual politicians is to that of the state that they lead is further illustrated by the fate of the Yugoslav UN membership application. As if to mark the failed state status of the old Yugoslav state, the post-Milosevic Yugoslav government submitted a UN membership application. The application was accepted unanimously at a rapid speed by the General Assembly on November 1, 2000. If Milosevic had still been President, the success of the application would have been uncertain.
THE LEGAL STATUS OF YUGOSLAVIA AFTER MILOSEVIC
After Yugoslavia joined the UN, one would have expected that the ICTY would have fallen into desuetude. However, because Yugoslavia’s UN membership would hardly have been possible if the ICTY had not indicted Milosevic, the ICTY became very conscious of its own worth. If Yugoslavia had expected that the transfer of Milosevic to The Hague would at last have made the accusation of non-cooperation subside, it was sorely disappointed.
The rehabilitation process has been riddled with legal inconsistencies. Membership in the UN meant that the international community recognized the Yugoslav state. If the international community recognized Yugoslavia, why did it not recognize the Yugoslav courts? If a state is recognized as a sovereign nation, that recognition should extend to all branches of its government. If the international community recognized the Yugoslav judiciary when Yugoslavia was admitted to the UN, why did the ICTY continue to indict Yugoslavs?
Those inconsistencies are not entirely new. In fact, many of them can be seen as a prolongation of a number of longstanding inconsistencies, which culminated during the Kosovo bombing in 1999. Even when the talk about Yugoslavia’s “status” as a failed state was at its height, countries did not break off diplomatic relations with it. It was Yugoslavia that broke off diplomatic relations with major NATO countries during the Kosovo bombing. However, when the Kosovo crisis became a cause célèbre, some international organizations made “diplomatic recognition” conditional on preconditions that they expected Yugoslavia to meet. It has been the traditional view that a state cannot have diplomatic relations with another state that it has not recognized. If the international community promised Yugoslavia diplomatic recognition as though Yugoslavia lacked diplomatic recognition, how could the international community fail to break off diplomatic relations with it? One could salvage the legal argument by introducing the construct of recognition de facto, but it would seem that a state cannot extend recognition even de facto to another state that it regards as a failed state.
CONCLUSION
This essay has tried to explain several fatal discrepancies in modern European politics in terms of premature state recognition. It has not delved into the theory of premature recognition. Instead, the essay has tried to illustrate that the international community tends to define its legal doctrine on a case-by-case basis. Legal discourse in the late 1990s was dominated by a reshuffling of peremptory norms, which sacrificed the chief among peremptory norms, the principle of sovereignty, to other peremptory norms, like the prohibition of genocide. More than ten years later after the war in the Balkans started, it is easy to forget that in the beginning the war was routinely attributed to premature state recognition.
The case-by-case approach has been manifest in the established organs of the UN, including the International Court of Justice. The case law of the ICJ has become an exercise in excluding Yugoslavia. The ensuing casuistry has made it difficult to define the legal regime that applies to Yugoslavia even after its legal status has apparently been resolved.
To absorb the shock caused by the dissolution of Yugoslavia, other judicial organs besides the ICJ were needed. The International Criminal Tribunal for former Yugoslavia was designed to create an illusion of legality in the wake of the dissolution of Yugoslavia. The illusory nature of that legality would become more obvious if the ICTY itself had been dissolved as planned “upon the restoration of peace”. Fully conscious of its decisive role in the ousting of Milosevic, it has pretended not to know when to stop, even if the restoration of peace has already become part of the history of the 20th century.
It should be borne in mind that the ICTY was established because the UN felt the need to address the situation in the former Yugoslavia urgently. Not only was the ICTY not dissolved after peace was achieved in 1995, but some of the architects of that peace were later indicted by the same organ whose jurisdiction they had helped to consolidate. Those actions can not be excused on the ground of urgency, unless the whole exercise was meant to divert attention from something else.
(*)Jonathan Widell holds a degree in Law from the University of Leiden and degrees in Law and Philosophy from the University of Helsinki. He is currently writing a doctoral thesis on Jacques Vergès at McGill University Faculty of Law in Montreal.
(1) http://www.unisa.edu.au/lavskis/zagar/constprov/croatia.htm
(2) Case No. IT-95-11, the Prosecutor of the Tribunal against Milan Martic, amended indictment, para. 4.
(3) United Nations Protection Force at URL:
http://www.gmu.edu/departments/t-po/resource/bk/mission/unprofor_un.html
(4) idem
(5) idem
(6) See generally Nikolaos A. Stavrou, Bosnia 101 at URL:
http://www.srpska-mreza.com/library/facts/bosnia101.html
(7) See generally Christoph Schwegmann, The Contact Group and its Impact on the European Institutional Structure, June 2000 at URL:
http://www.iss-eu.org/occasion/occ16.html#2
(8) http://www.deltax.net/bissett/western/bosnia.htm
(9) Report of the Secretary-General, 3 May 1993 at URL:
http://www.un.org/icty/legaldoc/index.htm
(10) http://www.globalpolicy.org/nations/sovereign/failed/2003/0725law.htm
(11) http://emperor.vwh.net/icdsm/more/belongs.htm
(12) Idem
