Thursday, February 09, 2006

Taking International Human Rights Obligations and Right to External Self-determination more seriously: A reply to Srdjan Cvijic

Srdjan Cvijic, a member of always interesting weblog “Transatlantic Assembly” criticized and questioned my comment on his weblog on the future of Kosovo. This is my reply to his comment. More detailed analysis on the future of Kosovo will come in the next weeks, however that does not undermine my reply to Mr Cvijic.

Taking International Human Rights Obligations and Right to External Self-determination more seriously: A reply to Srdjan Cvijic

Dear Srdjan Cvijic,

I appreciate your reply to my comment regarding future of Kosovo and I always welcome free exchange of views on any topic. However, I cannot embrace your comments on most of points since are alas not objective and disregard the progressive development of international human rights law in the last decades.

You say that current Serbian/Yugoslav governments do no deny that the crimes against humanity were committed (which I never put forward if you read my contribution carefully), however they certainly have not done much in practice to bring the high profile perpetrators of heinous crimes to justice either before ICTY or before Serbian courts. Therefore I believe Yugoslav/Serbian governments are not taking their human rights obligations seriously. Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, confirmed that in her address to the United Nations Security Council on 15 December 2005. She inter alia submitted that:

“Until recently, there was no political will on either of these parties to go aggressively after Karadzic and Mladic. At the rhetorical level at least, this has changed now, and there are numerous statements by Serb and Bosnian Serb political and even religious leaders saying that Karadzic and Mladic must be brought to The Hague. These intentions at the top have, however, not necessarily filtered through all the layers of the institutions involved. To sum up this most crucial issue, my main partners in the hunt for Karadzic and Mladic are now the Governments of Serbia and Montenegro and the relevant authorities of Bosnia and Herzegovina. The international community, through conditionality, is providing political incentives for the local authorities to arrest these indictees. On operational issues, however, the involvement of the international community has been minimal, at least over the past two years.

Serbia and Montenegro’s cooperation has, unfortunately, deteriorated in the past months. There is no serious, well-articulated action plan on the fugitives. Moreover, there is a lack of co-ordination between the State Union authorities and the two Republic’s Governments, and the rivalry between the involved agencies is palpable. The information passed to my Office is scarce and unconvincing. The Army of Serbia and Montenegro continues to hamper, both actively and passively, the co-operation of Serbia and Montenegro with the ICTY. Serbian civilian authorities admit today that the Army as an institution was protecting Ratko Mladic until as late as at least May 2002.”

You say that Serbia will have the final word on Kosovo gaining independence or not. Your argument is simply not feasible and not realistic and it resembles one of former Serbian government who advocated for eight years so in the UN that is the sole successor to former Yugoslav federation, whereas other republic of former Yugoslavia need to apply for UN membershi anew. That argument was not accepted by the international community and had not backing in international law and I believe that also this time around international community will not pay much attention to will of Serbian government if the potential referendum for Kosovo independence will show strong support for independent state.

In my first reply I submitted that everywhere where basic human rights have been violated and where international crimes have been committed, people may freely exercise right external to self-determination. This is basically argument which justifies the humanitarian intervention of NATO forces in Kosovo even tough it violated chapter 7 of UN Charter. The question poses itself what would have occurred if NATO would not have intervened? The answer may not be easy, but one can observe what kind of human rights violations are nowadays occurring is Darfur due to stalemate in the UN Security Council. You say that is a romantic approach to self-determination that belong to 19th century, by saying that you totally disillute and disregard the progressive developments in international human rights law in the last decades. Your conservative approach to human rights law belongs to relics of the 20th century. States are not the only participants in international community, the are plethora of actors such peoples who request that their rights are respected and exercised especially in the case of most blatant international crimes. The right of external self-determination is also set fort in a series of international instruments.

Your contribution wrongly asserts that right to self-determination is procedural right, when is in fact is not since it is based on merits or content of each specific case. It is submitted that gross human rights violations are one of reasons, which would justify the exercise of right to self-determination. It is argued that Kosovo falls in that category. It may be true that traditional understanding of international law would have precluded, the exercise of external right of self determination in case such as Kosovo but this approach is in my opinion totally outdated and has no basis on the ground where human rights violations are being committed. My argument regarding Kosovo is also strengthen since it is submitted that Serb/Yugoslav government has not will and is not competent at the moment to comply with the international human rights protection. Also the Kosovo authorities will need to ensure that rights of Serbian minority in Kosovo are protected in accordance with Council of Europe standards, when Kosovo become independent. International community would have to monitor the protection and observance of right Serbian minority in forthcoming decades.

As for your input that suggests that national assembly’s Indonesia gave consent to independence of East Timor, I argue that independence would be achieved any how due to strong support of international community. You may also consult case between Portugal v. Australia “East Timor” case before ICJ.

One can also rise example of dissolution of former Yugoslav federation which may be close your interest as it touches upon independence of Slovenia and Croatia. It is right that Serbia wanted to have final say on issue of dissolution or “separation of Slovenia and Croatia as former Milosevic government claimed” but things turned out differently, even tough at the time the road plan, which Yugoslav federal government and also regional Serbian government had in mind Slovenia and Croatia, were paved with good intentions, it fortunately did not end up in hell - at least for Slovenia.

For the fact that you say that the Slovene government and Prime Minister Janša “distanced” himself from president Drnovšek, I can only write that Slovenia has always willing supported Kosovo quest for independence and has indeed welcomed in the last decades (especially after the Balkan wars) a vast majority of Kosovars, Serbs and persons from other Republic of Former Yugoslavia people, who now form substantial Kosovo and Serbian ethnic minority in Slovenian. The discussion about the future of Kosovo and indeed Montenegro is very much needed in order to avoid escalation of new/old conflicts.

I like reading your blog and looking forward to future exchange between our blogs, especially since we come more or less from the same background.

Jernej Letnar


At 11:02 AM, Blogger Srdjan Cvijic said...

I appreciate you reply Jernej, I will soon reflect on your comments but for the time being I am trying to get other authors to publish on our blog on the same issue...


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