The outcome of a rape & rapine

“With the defeat and dismantling of the Ottoman Empire and the Austro Hungarian Empire in this century, the Balkan peoples came to be freed from the imperial yoke and Kosovo came to be considered an integral and legitimate part of Serbia. It was the restoration of the historic rights of an ancient people. The influx of Albanians from the adjacent territory of Albania in later times cannot by reason of their subsequent numerical preponderance acquire any preferent or exclusive rights to the territory that represents Kosovo Province.”
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by H.L.de Silva

(March 25, Colombo, Sri Lanka Guardian) When a law has been violated it is not unusual for the party accused of such serious offence who has no credible defence, to seek refuge in some form of "special pleading" in exculpation or mitigation. The United States Government and its NATO allies acting in collusion, who must take full responsibility for the several violations of International Law and the Charter involved in Kosovo’s UDI, has sought refuge in the specious plea that the Kosovo secession was unique and that it should not be seen as a precedent to be followed presumably to dampen the enthusiasm of other aspirants to statehood. Wherein such uniqueness lies h as not been made clear, for most internal conflicts that remain unsolved are characterized by ongoing violence and the death of civilians apart from combatants. The Kosovo conflict was not essentially different from such ethnic conflicts in other parts of the World which are also seen as intractable. In truth, it has afforded a unique opportunity for the Western powers to enhance their security in a volatile region and at the same time to demonstrate their much alleged military might.

What is perhaps unique here is the brazen style of intervention and the exhibition of hegemonic power of the US and NATO in disregard of the restraints and restrictions placed on their conduct by the Security Council Resolution of 1999 which authorized a limited degree of intervention as interim measures in resolving the Kosovo problem. If nothing else, the Kosovo adventure demonstrates the inherent weakness and flaws of the much vaunted Responsibility To Protect (R2P) doctrine and its modalities for action, which received the approval of the World Summit Assembly of 2005, subject to the overall control of the Security Council. Despite its inordinate length the Assembly Resolution did not seek to suggest any mechanism for the control of such authorized interventions in the internal affairs of a State and maintaining continuous oversight of such operations, nor seek to secure the answerability of State actors involved in such intervention, nor prescribe any sanctions or penalties for illegalities and crimes committed in the process of giving protection to the hapless thousands who were the victims that needed succour. What is surprising is the General Assembly’s failure to take note of such anomalies despite the manifest evidence in the Kosovo misadventure from 1999.

At the heart of the problem was the question of the limits of State Sovereignty, the extent of the derogability of human rights of individuals, the recognition of group rights and self-determination and territorial integrity of states which were ill-defined and were all matters which the UN and its several agencies seem unable or unwilling to resolve. Yet without doubt they were all complex and difficult problems that had to be resolved if the slide to international anarchy was to be averted. It was no doubt desirable in the interests of fairness, that prior to the authorization of the use of force that the UN and its authorized organs would have to be satisfied through the submission of the concerned States to the compulsory adjudication of disputes to determine the relative merits and demerits affecting the justice and equitableness of the question.

In the absence of such vital safeguards it was inevitable that considerations of power politics would be the dominant factor and determine the question of intervention in the internal affairs of sovereign states and unrestrained aggression would result in the unravelling of the entire international legal order and bring about chaos in international relations. The unresolved situation in Kosovo flowing from NATO intervention and the fraudulent and illegal secession of Kosovo from Serbia, cannot be ignored. The foreseeable consequences of such high handed action in comparable situations in other parts of the world are bound to have explosive effects causing immense human suffering and will be a standing indictment on the UN’s irresponsible failure to grapple with the problem. This could be its nemesis and it may well meet with the same fate that befell the League of Nations.

The contention that Kosovo was a unique situation, without indicating wherein lay its uniqueness, is an evasion of the issue and is a clear case of seeking to dissimulate the real reasons and the true motives behind the actions of the co-conspirators in this dastardly crime against the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and its constituent unit, the State of Serbia. What is perhaps unique is the brazenness and bravado of those who seek to whitewash the enormity of this offence of rape and rapine against a sovereign state by seeking to describe it as being legitimate action and therefore justifiable in the circumstances. No doubt the hot gospellers of R2P may want to characterize the intervention and the imposed solution as acts of benevolence towards the Albanian inhabitants of Kosovo!

How credible is this claim of legitimacy? The primary requirement for any act or status to be deemed legitimate is that such phenomena are permissible under the existing law and are also both just and equitable. In a secondary or extended sense action may be considered legitimate when there is no clear or definite prohibition against the act but there are present substantial moral and ethical grounds which justify such action. Legality on the other hand envisages compliance with existing law which either makes the act obligatory or permissible,

authorizing its performance and prohibiting any breach. There may however be inchoate and uncertain situations where the law applicable is either unclear or has become obsolete by disuse or a general lack of enforcement by reason of a widespread recognition of its unfairness or harshness. In such extraordinary circumstances a non-compliance with the law may be considered legitimate though lacking legality, where there are strong moral grounds which justify such deviations from the legal rule or its non-observance, - but not otherwise.

According to these criteria which are relevant to the question of legitimacy, can the Unilateral Declaration of Independence of the Kosovo Province in Serbia, of the Federal Republic of Yugoslavia, be regarded as legitimate action to which no criticism can attach? There can be little doubt that the declaration made in Pristina on 18th February 2008 was a contravention of the principles of customary International Law and the United Nations Charter and the domestic law which prohibits such action. Admittedly, Kosovo was continuously from about 1912 when the territory was recovered from the Turks after the Balkan Wars, an integral part of Serbia both before and after the conclusion of the First (1919) and Second World Wars (1945). It continued to have that status notwithstanding the grant of substantial autonomy under President Tito in 1975 by a constitutional amendment of the Yugoslav Constitution (A parallel situation would be the autonomy granted to a Province under the 13th Amendment of the Sri Lankan Constitution with constitutional bars against separation and the maintenance of Central Government control. If the autonomy granted to such a Provincial unit was unlawfully exceeded and abused by an elected body in which an ethnic group was a majority and there was a withdrawal of such powers by the Central Government resulting in an armed revolt that ought not to be regarded as a legitimate ground for secession.)

Even when the F.S.R.Y. broke up in the early nineties, Kosovo remained part of Serbia and the remainder state of the former Republic. This was because of the decision of the Badinter Arbitration Tribunal not to entertain or grant the claims of ethnic minorities within the constituent units of the Federation, notably the Serbs in Croatia and Bosnia-Herzegovina to secede and form a greater Serbia, adopting the legal principle of ea possidetis to determine their international boundaries. Accordingly, Kosovo remained part of Serbia despite the majority of its population being Albanian Muslims, desiring to form their own State. Thus the rule was consistently applied.

To briefly set out the reasons for the illegality of the entire concatenation of events that culminated in the secession – the use of force by NATO forces against Serbia without Security Council authority in the relentless and ruthless bombardment of northern Kosovo for 78 days in order to force the withdrawal of Serb armed forces from Kosovo was prohibited aggression against Serbia and a violation of its undoubted right to protect its territorial integrity.

More so, because it’s clear objective was to enable the Kosovo rebels and the K.L.A. to take control of the area and engage in the ethnic cleansing of the Serbs in the Province. The case for a UN Security presence was obtained on an incorrect report that some 200,000 deaths had occurred, made by Ms. Louise Arbour, the UN High Commissioner for Human Rights when the evidence disclosed at Milosevic’s trial (at which he was not charged with the genocide of the Albanian Kosovars) did not establish the presence of more than 5000 dead bodies. It is clear therefore that the intervention on professed humanitarian grounds, was for the express purpose of enabling Albanian Kosovars and the K.L.A. to take effective control over the territory and terminate the Serbian administration. These acts were clearly intended to circumvent the UN Security Council determination that the political settlement of the conflict had to be in accordance with the sovereignty of Serbia. Thus it was a flagrant violation of the law for securing the interests of hegemonic power which negated any semblance of a claim to legitimacy.

The grounds on which it is claimed that the secession of Kosovo from Serbia was justifiable and legitimate action in vindication of their right of self-determination are not convincing and is quite insubstantial in comparison with the overwhelming case that establishes flagrant violations of international law. Though the Albanian Kosovars claim of historical links with the ancient people that inhabited this area from the early centuries of the Christian era, their adoption of the Islamic religion after the Ottoman conquest in the late 14th Century points to the acquisition of new identity of later date in relation to the indigenous Serbs and was a group augmented by immigrants from Albania. It was comparable to the Tamil settlements in Sri Lanka from South India commencing from about the 10th Century, which were later in time to the establishment of the settlements of the majority Sinhalas from earlier times.

With the defeat and dismantling of the Ottoman Empire and the Austro Hungarian Empire in this century, the Balkan peoples came to be freed from the imperial yoke and Kosovo came to be considered an integral and legitimate part of Serbia. It was the restoration of the historic rights of an ancient people. The influx of Albanians from the adjacent territory of Albania in later times cannot by reason of their subsequent numerical preponderance acquire any preferent or exclusive rights to the territory that represents Kosovo Province. The gradual reduction of the Serb population in later years was mainly due to economic reasons of underdevelopment of the area in comparison with the northern parts that is now Serbia and partly due to ethnic tensions and religious differences and rivalries with later immigrants from Albania in considerable numbers.

There was however in no sense an abandonment, to use Roman Law terminology of the ius possidendi by the Serbs, but a retention of the ius revertendi when conditions were more favourable. The depredations of the Kosovo Liberation Army in the nineties contributed to a further reduction of the Serb population in Kosovo. Secondly, the question of the extent of serious violations of human rights as between the two groups is a matter of controversy with accusations and counter charges being made on both sides, as borne out by the physical evidence of the destruction of historic religious monuments which were mainly of the Christian Orthodox Church. It is therefore not possible to argue that the Kosovo secession was the legitimate exercise of a claim of remedial right of secession and justifiable action by the Albanian Kosovars in reliance of the Friendly Relations Declaration of the UN General Assembly, in response to oppression by the Serbs.

The effective control of territory by a rebel group is usually the first step towards the creation of statehood and those who covertly support such a venture often seek to dissuade the metropolitan state from going ahead with an armed offensive against the rebels to recover the territory in their control by incessantly alluding to the futility of an "unwinnable war" .This results in ensuring retention of the territory by the rebels and by exaggerating the cost of the conflict in terms of the loss of civilian lives, (which is inevitable even in a just war waged by a sovereign state in defense of its territorial integrity) promotes the separation. Once the rebels are seen in danger of losing control, then as inspired by R2P, plans are set in motion to intervene in the conflict on alleged humanitarian grounds to prevent envisaged disasters such as genocide and large scale destruction of property and infrastructure. The inevitable consequence of such intervention is the partition of the territory and the effective termination of control by the metropolitan state prior to the final step of proclaiming secession. This may well have been the fate of Sri Lanka had the Cease Fire Agreement been allowed to continue. Even the provisional grant of a measure of autonomy is fraught with many risks and dangers if the rebels were to see it as a sign of State weakness, consolidate their power and strengthen their external links prior to the declaration of independence. This is what the Albanian Kosovars did after President Tito granted the province autonomy in 1975.

If by granting the Albanian Kosovar’s claim to a separate statehood the Western powers were acknowledging the legitimacy of their attachment to ancient historical memories of their homeland, it would be to deny the equally strong Serbian bonds to Kosovo as the heartland of their nation. It may well prove to be a perennial wound and grievance, generating in the Serbs a desire to avenge this injustice. This negates any claim of legitimacy because it will remain a permanent cause for destabilization. In loading the dice against Serbia one gets the impression that the Western powers were more concerned in punishing the Serbs for the misdeeds of their Leader Milosevic and his government rather than seeking to settle the conflict in a just and fair manner. Their real objective seems to have been to establish a dominant role for themselves in the Balkans and undermine Russian influence.

It has been suggested that in securing independence for Kosovo the West was seeking belatedly to win a greater measure of support and goodwill among estranged Muslims. Such a theory is implausible and would not carry any conviction as far as Muslim sentiment was concerned, considering that the West has not shown any inclination to deal fairly with the Palestinian problem. The West has shown a complete lack of concern for the plight of the Palestinians for over half a century and failed to exert any degree of restraint on the part of the Israelis in their treatment of the Palestinians, who have endured suffering and misery in far greater measure which make the claims to recognize the rights of Muslims sound hollow..

It would be simplistic to suppose that the US and NATO power intervened in the Kosovo crisis out of purely altruistic motives in order to deal with the problem in a fair manner. On the other hand, it was clear that a Kosovo that was free from Serb control presented them with an excellent opportunity to establish for themselves a powerful presence in the region that could in later years become a threat to European security. Subsequent events show that the US has lost no time in establishing a giant military base – Bondsteel – to ensure that Kosovo is totally subservient to US interests and in particular secure the strategic oil and transportation lines of this region. There is every indication that the US would have total dominance and that the Kosovars would be subservient to them and be content with only the trappings of a State which would in reality be a colonial outpost of the US in this corner of Europe. An International Civilian Representative (ICR) has been appointed by the US and NATO to control the civil administration of Kosovo This appointed official is empowered to overrule any measures, annul any laws and remove any one from office in Kosovo. The ICR will have full and final control over the departments of Customs, Taxation, Treasury and Banking. The EU will establish a European Security and Defence Policy Mission (ESDP) and NATO will establish an International Military Presence. Both these appointed bodies will have full control over foreign policy, security, police, judiciary, all courts and prisons. It is thus clear that the so-called Independence will be a fake.

Though at present Kosovo is a relatively undeveloped area, it is well endowed with mineral resources suitable for industrial development which however under the new regime would be exploited by giant Western multi-national corporations. There is no indication that Serbia’s enormous loss of these economic assets would be compensated, despite these being state owned assets. It is an act of expropriation, deserving of condemnation.
- Sri Lanka Guardian