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David Jacobs on the legality of Kosovo’s declaration of independence

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CARLO BASILONE: Kosovo’s unilateral declaration of independence has stirred up a heated debate on a political level, on moral grounds, and on the question of legality. The Real News spoke to David Jacobs, a lawyer specializing in human rights and international law.

PAUL JAY, SENIOR EDITOR: David, much of the critique that I’ve heard of the declaration of independence of Kosovo, critique coming from Russia, from Spain, from China, who say that this unilateral declaration is illegal, they talk about the role of the United States, the role of NATO. But what seems to be missed in some of this is: what exactly are the rights of the people of Kosovo, the 90 percent of Albanians, who have been wanting autonomy, independence for at least 100 years? What is the international law in terms of their rights, even if one grants the fact that what the US has been doing for the last ten years may well be illegal?

DAVID JACOBS, LAWYER, HUMAN RIGHTS AND INTERNATIONAL LAW: Well, you can’t put aside the illegality and you can’t put aside the current situation that you’re in. I’m not sure it’s correct to say that the Albanians in Kosovo have been seeking independence for the last 100 years. There is an independent country called Albania, and to my knowledge that country hasn’t called for the incorporation of the Albanians in Kosovo into a greater Albania, to my knowledge.

JAY: But certainly in post-World War II the Kosovars were at the very least asking for autonomy within Serbia, and when the federation of Yugoslavia was established, the Albanians wanted to be a republic within Yugoslavia equivalent to the other republics.

JACOBS: Okay. There are a number of issues here. I mean, there are no such things as Kosovars, for example. Albania was a multi-ethnic state—I’m sorry. Kosovo was a multi-ethnic state, which included a people of Albanian extraction, Serbian extraction, Goranis, Turks, and Roma, most of whom, actually, have been ethnically cleansed from Kosovo since after the later bombardment. So it is probably more purely Albanian now than it was previously.

JAY: But it was certainly about 90 percent even pre-’99.

JACOBS: Well, I’m not sure that’s correct. At least a quarter of a million Serbs have left Kosovo since 1999, so the situation is somewhat skewed. But I don’t think that’s the issue. I think the issue is to put the thing into context. There was an attack on Yugoslavia by NATO. And the idea that what you have now is an independent Kosovo in any sense under international law is laughable.

JAY: Why?

JACOBS: Kosovo is a protectorate of NATO. It is occupied by NATO troops. There is a massive NATO base there which isn’t going to move. Sixteen thousand NATO troops sit on roughly 1,000 acres in a place called Bondsteel. That’s not going away. In addition to that, 2,000 European mission members are going to be stationed in Kosovo, and they’re going to have the final word. They’re going to have the final word on taxation, on foreign policy, on monetary policy, and on the judicial system. In fact, there’s going to be an individual—sorry, an international civilian monitor who’s going to be there, who can actually appoint the head of the Bank of Kosovo, the judicial offices, and so on. And they can take action against the government of Kosovo if it departs from what the European Union thinks. So the idea that it’s independent is laughable. It’s a protectorate. It’s foreign-controlled.

JAY: Do you have any evidence that the Albanians of Kosovo, which as far as I understand have always been the vast majority of Kosovo, they seem to want this? They voted for the party and the prime minister who’s made this deal. The fight for autonomy within Serbia, the fight for the desire for independence, I don’t think anyone argues has majority support amongst the Albanians in Kosovo. So if they want to make a deal—.

JACOBS: Well, I don’t know how anyone knows.

JAY: Well, they had an election.

JACOBS: Well, except an election held under foreign occupation is generally not regarded as a free and fair election at law anywhere that I’m aware of. It was an election held under the auspices of US-NATO occupation. And look at it. I mean, let’s look at it practically.

JAY: But they weren’t allowed to have any elections before that. So.

JACOBS: Well, I don’t think that’s absolutely true. In fact, I think it’s strongly arguable, and a lot of commentators have argued, that there was much more autonomy under Milosevic than there’s going to be now.

JAY: Well, except there was real autonomy before Milosevic, and he withdrew it. There actually was an autonomous area *[crosstalk]

JACOBS: *Yes, that’s true. Under Tito. That’s right. And it wasn’t exactly withdrawn; it was diminished somewhat under Milosevic. But look, when we’re talking about international law, what we’re talking about, I think, is the recognition of an independent Kosovo. Firstly, it’s my view that Kosovo isn’t independent. I mean, for example, one of the legal prerequisites for the international recognition of the secession of a country is that country is able to control its own borders. Kosovo clearly isn’t. There’s a foreign army there, which may be able to control their borders, but not Kosovo. There’s another point, which is really important. In 1999, the UN Security Council agreed unanimously that in the circumstance of the NATO invasion of Yugoslavia, none of the nations would disrupt the integrity of Yugoslavia.

JAY: This is Resolution 1244.

JACOBS: Resolution 1244, which was preceded by the meeting of the G8 nations, who also agreed to the same thing. And they agreed to two things. One—or they agreed on a number of things. And their agreement got the Serbs to agree at that point in time to pull out troops and allow NATO to go in in circumstances of a truce. But they also agreed to demilitarize the Kosovo Liberation Army. Other than the fact that Kosovo was under occupation, is there any international body that said that the elections in Kosovo were not fair and legitimate? ‘Cause I haven’t heard that. Do you really actually think that the majority of Albanians do not want independence from Serbia?

JACOBS: I think there’s—.

JAY: The majority of Kosovo Albanians.

JACOBS: I think that the NATO intervention has definitely created an ethnic state where none existed previously.

JAY: Because Albania, for most Albanians, for much of that time, was practically illegal. They had underground schools, underground hospitals. After Milosevic withdrew autonomy, much of the Albanian infrastructure had to go below ground.

JACOBS: I’m not sure of the correctness of any of that. It certainly is true that the Yugoslav government treated the Kosovo Liberation Army the same way that the European community and the States treated the Kosovo Liberation Army. Prior to the KLA, Ibrahim Rugova, who was the leader of a pacifist independence movement in Kosovo, tried to negotiate with Milosevic in Serbia, and even before Milosevic tried to negotiate a real legitimate autonomy, and they got nowhere. I mean, why the KLA came into being had a lot to do with the dismantling whatever autonomy there was. KLA didn’t come into being for no reason, I mean, even if one acknowledges what you say is the KLA.

JACOBS: It isn’t now 20 years ago, and it’s not now 10 years ago. The situation now is that the borders of Yugoslavia have been redrawn by a NATO attack, which I contend to be illegal. It’s not possible on the basis of that for that state to be recognized in international law. If you want to talk about basic international law, the decisions of the UN Security Council are international law, and international treaties amount to international law. And, frankly, the idea that, “Well, we fooled the Serbs into agreeing to a truce in 1999, but now we’re going to completely go back on our word.” And it’s not unknown in history, and frankly it’s not unknown for the United States to do that. It seems to me to be—and this isn’t a legal term—seems to me to be despicable.


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David Jacobs is a partner at the law firm, Watson Jacobs McCreary. He has practiced for over 23 years in labor relations, human rights and international law, amongst other areas. He is also a lecturer, writer and frequent media commentator.