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BILKENT UNIVERSITYINSTITUTE OF ECONOMICS AND SOCIAL SCIENCES

THE DISSOLUTION OF FORMER YUGOSLAVIA AND THE CASE OF KOSOVA/O: POLITICAL AND LEGAL ASPECTS

BY

ENVER HAŞANI,/y

Y — -·· Y '

A THESIS SUBMITTED TO THE DEPARTMENT OF INTERNATIONAL RELATIONS IN FULFILLMENT OF THE

REQUIREMENTS OF MASTER OF INTERNATIONAL RELATIONS

AUGUST, 1998

ANKARA

JC‘уЭЭ

И 3

ъ оп

Approved by the Institute of Economics and Social Sciences

I certify that I have read this thesis and in my opinion it is fully adequate, in scope and quality, as a thesis for the degree on Master of International Relations

Assistant Professor Hasan Ünal Thesis Supervisor

I certify that I have read this thesis and in my opinion it is fully adequate, in scope and quality, as a thesis for the degree on Master of International Relations

Professor Norman Stone

I certify that I have read this thesis and in my opinion it is fully adequate, in scope and quality, as a thesis for the degree on Master o0nternational Relations

Assista: essor Hakan Kırımlı

ABSTRACT

Was former Yugoslavia an artificial creature and what are the reasons behind its creation?

Has Kosova/o and its majority population the right to self-determination, meaning

independent statehood as the former Yugoslav republics? What was the role of Serbian

nationalism in the creation and dissolution of former Yugoslavia? These are some of the

core issues we have discussed here which enabled us to fully understand former

Yugoslavia’s nightmare.

Kosova/o and Albanians living in former Yugoslavia were the most discriminated nation

in the State. In the period between the two Wars, they had not even been treated as a

minority. Only after 1974 they became, for the first time, players in the balance-of-power

game within the Communist Yugoslavia. Yet, they were mostly misused by other Slavic

republics in the fight to control the Serbian aggressive nationalism and hegemony.

After the dissolution of former Yugoslavia and long before that, the Kosovar Albanians

are striving for achievement of the right to independent statehood. Althought the right is

asked for the recognition by peacefull means on the part of the Kosovar Albaninas, it has

so far been denied by the Belgrade regime. Long time of waiting for the right to be

realised produced the clandestine Kosova/o Liberation Army (KLA, or, in Albanian:

U(^K) that appeared on the scene after the Dayton Accords (1995). It remains to be seen

how the issue will be settled in the time to come.

iv

ÖZET

Eski Yugoslavya suni bir oluşum mudur ve onun ortaya cıkmasısm ardındaki temel

nedenler nelerdir? Kosova halkının kendi geleceğini belirleme hakki var mıdır?

Yugoslavya Devleti’nin dağılmasında Sırp milliyetçiliğinin rolü nedir? Yukarıda ki

sorularin cevapları bu çalışmada bulunmaya çalışılmıştır ve şurası kesindir ki bu

cevaplar bizim Yugoslavya karabasanını daha iyi anlamamıza yardım etmiştir.

Eski Yugoslavya’da yaşayan Kosovah Amavutlar Yugoslavya Devleti içinde en fazla

ayrımcılığa maruz kalmış millettir. İki savaş arası dönemde onlar bir azınlık olarak

bile görülmemişler, yalnızca 1974’ten sonra komünist Yugoslavya içinde denge

politikasında bir aktör olarak belirmeye başlamışlardır. Fakat yine de onlar diğer

slavik kökenli cumhuriyetler tarafından saldırgan Sırp milliyetiliği ve hegemonyasına

karşı verilen mücadelede kullanılmaktan kendilerini alamamışlardır.

Yugoslavya Devleti’nin dağılmasından çok önceleri başlayan ve dağılmasıyla hız

kazanan bir şekilde Kosovah Amavutlar bağımsız devlet hakkı için mücadele

etmektedirler. Bu hak, hemekadar Kosovah Amavutlarca barışçı yollardan kabul

ettirilmeye çalışılmışsa da Suplar tarafından kendilerine tanınmamıştır. Uzunca bir

müddet bu hakkın gerçekleştirilmesi için verilen mücadelerle geçtikten sonra, 1995

Dayton Anlaşmalarını takip eden süreçte yeni ve gizli bir oluşum ortaya çıkmıştır:

Kosova Kurtuluş Ordusu. Bu somnun önümüzdeki yıllarda nasıl çözüleceğini görmek

için hala bekliyomz.

ACKNOWLEDGMENTS

I am deeply grateful to my supervisor, Hasan UNAL, whose knowledge and efforts have

been the major source of support in the completion of this dissertation. Without his

guidance and academic vision on the topic this dissertation could have never been

realized. His way of supervision and his illuminating knowledge both on Balkan history

and politics, as well as on European politics, reinforced my commitment to academic life.

The positive energy I have received from him at each and every instance we met,

strengthened my will on scholarly work.

I would like to thank professor Norman STONE for the honor he gave me with his

presence and suggestions during the writing of this dissertation. His illuminating

acquaintance on Central and Eastern Europe, including Kosova/o as well, have been an

excellent guide to my work and an inspiration for my further studies.

I feel grateful to my teacher Hakan KIRIMLI for all the insights and the courage he gave

me in the process of the completion of this work.

Last, but not least, I would like to thank my family for their open hearted support; to my

brothers for their encouragement and vision, to my mum for her patience and care, to my

sisters, Fatmire and Teuta, for their love and devotion. I would further like to express my

warmest thanks and special gratitude to my wife, Burbuqe Xhema, for the moral brace

and motivation she gave me throughout. Many thanks go to my sons, Kastriot and Vatan,

who have missed me too much during the recent years.

VI

TABLE OF CONTENTS

ABSTRACT

OZET

ACKNOWLEDGEMENTS

TABLE OF CONTENTS

PAGES

IV

VI

vu-x

CHAPTER I : INTRODUCTION 1-5

CHAPTER II; BREAK UP OF FORMER YUGOSLAVIA AND THE

ATTITUDE OF INTERNATIONAL COMMUNITY 6-6

1. Genesis of the Yugoslav Break-up and Emergence of the

Kosova/o Issue 6-13

2. Tracing the Break-up and the Main Events Leading to the Conflict in Former

Yugoslavia and its Violent Dissolution 13-19

3. Initial Response of the International Community 19-24

4. The Hague Pace Conference on the Former Yugoslavia and Its Impact on the

Vll

Yugoslav Crisis 24-28

5. The so-called “Guidelines on Recognition of New States in Eastern Europe and

the Soviet Union” and their Impact on Former Yugoslavia 28-34

6. Impact of the “Guidelines” on the Kosova/o Issue 34-37

CHAPTER HI: BEGINNING OF THE PEACE PROCESS IN FORMER

YUGOSLAVIA AND THE KOSOVA/O ISSUE 38-38

1. London Conference on the Former Yugoslavia (ICFY, August 1992) and Its

Goals 38-41

2. Evolution of the Attitude of International Community with Respect of

Recognition: Advisory Opinions of the Arbitration Commission within the ICFY

(the Badinter Commission Opinions) and their Impact on the Overall Settlement

of the Crisis in Former Yugoslavia 41-45

2.1. The Issue of Statehood of Former Yugoslavia, or, When Did the Dissolution

Occur?!

2.2. The Statehood of the Republics of Former Yugoslavia

2.3. The Statehood of Kosova/o denied. Why?

45-46

46-47

47-50

2.4. The Issue of Boundaries and the so-called Uti Possidetis Principle 51-54

2.5. The right to self-determination within the context of former Yugoslavia and

the subjects entitled to that right: Republics or Peoples? 54-57

2.6. Was and is it the Kosova/o Entitled to Self-Determination According to the

viii

Rules of International Law?

3. Failure of the London Conference and the Kosova/o issue

57-61

61-63

CHAPTER IV: THE PEACE PROCESS IN FULL SWING AND THE

KOSOVA/O ISSUE 64-64

1. Dayton Peace Accords and the Kosova/o Issue

2. The So-called Outer Wall of Sanctions and the Kosova/o Issue

64-67

67-73

3. Reintegration or Integration of the Federal Republic of Yugoslavia (Serbia and

Montenegro) 73-79

4. New Yugoslavia (Serbia and Montenegro): Continuity or Break with Former

SFR of Yugoslavia ?! 79-81

5. Importance and the Effects According to International Law of the so-called the

“Agreements on Normalization of Relations” or of the Other Similar Documents

Concluded Between the FRY (Serbia and Montenegro) and Macedonia, Croatia

and Bosnia-Herzegovina Respectively (April-October 1996) 82-85

6. Is the Autonomous Status Viable and Acceptable Option for Solving the

Kosova/o Issue 85-90

7. Possible Collective Recognition of the FRY (Serbia and Montenegro) by the

UN and Its Impact on the Kosova/o Issue 90-92

CHAPTER V: CONCLUSION 93-101

IX

ENDNOTES

BIBLIOGRAPHY

102-144

145-163

CHAPTER I : INTRODUCTION

The dissolution of former Yugoslavia represents the most significant event following the

end of Cold War. The aim of this dissertation is to give an overview of the factors that led

to its violent break up. To achieve this, one must take into account the background that

was behind former Yugoslavia’s creation in December of 1918. It is Second Chapter in

which there are given these brief historical considerations. The rest of it involves

discussion on the recent events after the end of Cold War up to the present.

Serbian nationalism has in our opinion been the main cause of former Yugoslavia’s

violent break up in 1992. Its roots lie as far back as 1844, when Ilija Garasanin drafted a

national program named “Nacertanije” (The Outline). We shall not discuss the program

but only mention it so as to have a clear view on later Serbia’s national programs. Last of

them was that drafted in a form of Memorandum by the Serbian Academy of Arts and

Sciences in 1986. Serbian policy of mid-1980s based its actions with a view of

territorially expanding to the detriment of others on the 1986 Memorandum.

Albanians and Kosova/o between the two World Wars played no role in running former

Yugoslavia. Only after the fall of Rankovic in 1966 (Serb origin interior minister of

Yugoslavia) there were created some opportunities for Albanians to enter the balance-of-

power game within that State. This is the reason why we have dwelt upon the issue of

Kosova/o and Albanians in former Yugoslavia only after 1996 onwards. The 1974

-1-

autonomy granted to Kosova/o offered the Kosovar Albanians an opportunity to check

and balance Serbia’s aggressive behavior that marked State-running of former Yugoslavia

all the time until its dissolution. Yet Kosova/o and Albanians were very often, if not

always, sacrificed by others in former Yugoslavia when it came to preserve their interests

vis-à-vis Serbia. Denying the full republican status to Kosova/o in 1974 could be well

explained upon this logic, that is, the full republican status would have in a long run

derailed the balance of power between Albanians and the South Slavs in the Balkans.

After the end of Cold War, former Yugoslavia had been heading for the opposite

direction than the other Communist States of Europe. Milosevic’s coming to power in

1987 and his playing with nationalist card rendered the reforms led by Croat Ante

Markovic (the reform oriented Prime Minister of former Yugoslavia at the time)

impossible. Within the political climate created in and by Serbia it was totaly unfeasable

to follow the new trend in economic and political democratization of the country. After

failed talks on the transformation of former Yugoslavia into a loose (con) federation

(Summer 1991), Serbia continued its policy with violent means by attacking first

Slovenia and then Croatia and Bosnia-Herzegovina. It was expected that Serbia’s

behavior would have implications for regional and wider stability which, in turn, brought

into play the international community. Europe was the first to get involved in former

Yugoslavia’s crisis, by setting up the guidelines on which to base solving of the crisis.

Based on these guidelines, that related not only to former Yugoslavia but the Soviet

Union as well, only the federal republics were granted the right to independent statehood.

-2-

Former autonomous provinces were denied the right and this had impact on Kosova/o’s

right to independent statehood. Furthermore, there have been comparisons of Kosova/o

with the so-called “Republika Srpska Krajina” (Croatia) and “Republika Srpska” (Bosnia-

Herzegovina), set up violently and by ethnically cleansing all the non-Serbs. Kosova/o

issue is different, though, both legally and politically for what we discuss in the Second

Chapter of the dissertation.

The two international conferences, held in the Hague (1991) and London (1992)

respectively failed as a result of international community’s reluctance to military

intervene against Serbs. Still they were in line with the guidelines as mentioned above.

They did not allow for any forceful change in former republican borders. But they did

menage to stop the fighting and war in the north and central parts of former Yugoslavia.

The US involvement on the crisis came too late. Only when it came Serbi’s war of

agression was put to an end (1995). These issues, that is, the beginning of the peace

process in former Yugoslavia we discuss in Chapter 111 of the dissertation. The evolution

of the attitude of international community and including the Kosova/o issue are to be

object of discussion as well. We shall give here our remarks regarding the wrong

application by the international community of the so-called uti possidetis principle and

the impact it may have on the destiny of Kosova/o and its majority population, that is, the

fear that we share that the way it was applied may give a free hands to Milosevic to

ethnically cleanse Kosova/o in the name of preservation of RFY’s (Serbian and

Montenegro) territorial integrity.

-3-

Dayton Peace process as a comer stone in understanding the crisis in former Yugoslavia

is going to be dealt with in the Chapter IV of the dissertation. In connection with the

Dayton, there the “outer wall of sanctions” imposed on Serbia, not only because of the

unsettled Kosova/o issue but as well to force Serbia in cooperating with the Hague War

Crimes Tribunal for Former Yugoslavia and to the full implementation of the Dayton

Peace Accords. Yet, these issues would not be discussed since they are not related to our

thesis. Kosova/o issue in connection with the “outer wall of sanctions” is discussed only

to see if they had in any impact on peaceful solving of the Kosova/o crisis. We deem that

this impact is not taking place. The appearance of the clandestine Kosova Liberation

Army (U^K) on the political scene of Kosova (1995) bears witness to this. Among the

Kosovar Albanian leadership, and its peaceful way pursued since 1990 to achieve its

political aims for independence of Kosova/o there have emerged different streams. One

of those is that Kosova/o issue should be settled by force for the “Repubilka Srpska” in

Bosnia-Herzegovina was set up in that way. Still, the peaceful stream among the Kosovar

Albanian leadership dominates the scene, but it may not be for too long. This our

conclusion we draw being based on Serbian repressive policies pursued in Kosova/o ever

since the autonomy was abolished in 1989.

The status of Kosova/o is one of the most discussed issues today. Can it be an autonomy-

type of entity as it was according to the 1974, or it should be a third republic within the

transformed FRY (Serbia and Montenegro)?!. Both of them, we hold, are untenable

solution for Kosova, if it is to be solved once forever and in a long rung for the sake of

-4-

peace and stability in the Balkans and wider. First reason is the mere fact that Kosovar

Albanians are not ethnic Slavs which as well could not live in one State with Serbia.

Second is that Kosova/o, as one of eight former Yugoslavia’s territorial entities, must

have the same rights, that is, full independence from Serbia. Third has to do with

Montenegrin population that is twice smaller than the Kosovar Albanians but still enjoys

a republican status. It also does not want to live with Serbia. The ongoing events in

Montenegro show this. It is obvious that Serbs have not displayed any understanding for

living with other non-Serbian cultures and peoples. Lastly, we consider that if there is a

security reason, as it seems to be the case, for not granting to Kosova/o the right to

independent statehood, than as time moves on there would be clearer to anyone that

exactly that stability will be more threatened if Kosova/o remains within Serbia’s

jurisdiction, or within FRY’s (Serbia and Montenegro) to that matter. All these arguments

are discussed in the fourth Chapter.

Chapter V is reserved for our conclusions regarding all the above issues, with Kosova/o

as its central part. Following the conclusion there are endnotes for each chapter and

literature used in writing the dissertation.

Note that we use in this work, for the sake of impartiallity, both Ablanian and Serbian

spelling of the name, that is, Kosova/o.

-5-

CHAPTER II: BREAK UP OF FORMER YUGOSLAVIA AND THE ATTITUDE

OF INTERNATIONAL COMMUNITY

1. Genesis of the Yugoslav Break-up and Emergence of the Kosova/o Issue

The part we diccuss comprises two issues: first, it deals with the very roots of former

Yugoslavia’s creation in 1918, while the second regards the emergence of the Kosova/o

issue itself The latter, it should be noted, is of recent origin and dates back to the 1960s,

that is, after the fall of Rankovic (Serb origin interior minister of former Yugoslavia).

This is not to say that Kosova/o issue had not earlier been an important problem to be

solved , especially during and immediately after the Second World War. The point lies on

the fact that only after the fall of Rankovic, Albanians as a whole became for the first

time one of the active players in the political scene of the than Yugoslavia. It was due to

the overall political climate created at the time. Than Kosova/o became one of

Yugoslavia’s core issues, nyway, in both cases Kosova/o and Albanians were not the

cause of Yugoslavia’s violent break-up. Rather, they were as a ground on which the very

survival of the socialist Yugoslavia was tested, while the main cause for its violent break­

up rests with the Serbo-Croatian relationship and their different perception of the

“Yugoslav idea”, on the one hand, and Serbia’s exclusivist and aggressive nationalism

vis-à-vis the others, on the other.' We refer here to as “Serbia’s aggressive and

exclusivist nationalism”, since it was Serbs the only ones whose political and other

activity had all the time been based on a national program.

-6-

Formation of the Yugoslav state on 1 December 1918 and its constitutional structure

based on royal unitarism after 1921 (the Constitution of Vidovdan) represented a victory

of the Serbian political forces over the others. Such a political force had been as an

immediate result of the balance of forces in which case the Serbian political factor was a

dominant one.^ This domination was both in internal (because it was the Serbian army as

the only regular force) as well as in international affairs (Serbia’s allies were the

victorious party in the War and shaped the post-War European order).^ As for Serbia’s

national aims, creation of the Serbian-Slovene-Croat Kingdom, later renamed Yugoslav,

represented almost a full realization of their national program. Towards the others, it

opened the issue of the Serbian hegemony as a result of complete Serbian control of its

state structures'* This state of affairs lasted all the time former Yugoslavia existed,

notwithstanding a common saying of the time that “creation of Yugoslavia in 1918 had

been an act of solution of the national question of the South Slavs, with the exception of

Bulgarians’’. The fact is that its creation in 1918 represented the very denial of the

existence of the national question of Croats, Albanians, Macedonians and the others

Croats, one of the founders of that state, perceived Yugoslavia as a federation. It was

quite the opposite from the Serbian unitarist view of the problem.’ Felt betrayed, Croats

never ceased to searching for the ways to redefine the common state. This eventually led

to the royal authoritarianism of 1929. That was a prelude to its violent break-up in 1941,

after German invasion. Setting up of the so-called “hrvatska banovina’’ on the eve of the

Second World War was too little too late to upease the Croatian national feelings.

-7-

During the War time none but the Serbs defended the “Yugoslav idea”. Against this

background, for nearly forty years, from 1943 to 1980, Yugoslavia was recreated and

guided by the firm hand of President Josip Broz Tito. Before we proceed with the post­

war period and the emergence of the Kosova/o issue, let us see the position of the

Albanians during the royal Yugoslavia.

After the Balkan Wars, Albanian lands were divided between Greece, Montenegro,

Serbia and the newly created Albanian state on 28 November 1912. London Conference

of Ambassadors in 1913 decided that Kosova/o and other majority Albanian-inhabited

lands in today’s Macedonia be given to Serbia. During the Serb-Slovene-Croat Kingdom

and later the royal dictatorship, the territory of Kosova/o remained an administrative part

of that state without any specific legal status, that is, the Albanians were not recognized

even as a national minority.® The Serbs argued that non-recognition of the Albanian

problem lies on the fact that the territories annexed after the Balkan Wars cannot be part

of the minority protection as foreseen after the First World War.’ Albanians, together

with the Muslims and Macedonians, were the most oppressed people. After the chaos of

the years of the World War I, the new Yugoslav state attempted to re - colonize the

territory with new Serb settlers, the Serb-Croat language was compulsory in schools and

for all official purposes. In the inter-Wars period an estimated 40,000 Slav peasants

(mostly Serbs and Montenegrins) moved in Kosova/o while over half a million Albanians

were forced to e m i g r a t e . F o r the final solution of the “Albanian question”, there

-8-

was eventually drafted a plan “The Expulsion of the Amauts” (Albanians) by the Serbian

Academician Vasa Cubrilovic (1937). Its implementation, though, was intercepted as a

result of the events following the Second World War"

During the Second World War, Kosova/o had been a part of the Albanian Kingdom

created by Italy and Germany. In the years 1943-44, some handful communists attempted

to gather in order to ask the unification of Kosova with Albania. This eventually failed,

and the uprising in Kosova/o occurred in 1944. It could be crushed dawn only in late May

1945 by the Communist troops. Then Tito had Kosova/o labelled as a “war zone” in early

February of that year. An “assembly” of Kosova/o (composed of Communists) decided

that Kosova/o should join “Federal Serbia” in July 1945. The decision later served as a

basis for constitutional dogmatic exercise of the “free will”, that is, of the right to self-

determination of the Kosovar Albanians and, in turn, demmed an act of unification with

the Yugoslav Federation.'^

The main difference in Kosovar Albanians position with the pre-War Yugoslavia was that

this time their official status had been recognized by the 1946 Constitution, although the

policy of mass expulsion and repression continued unabated until 1966.'^ After Rankovic

fell in 1966, Serbs and Montenegrins lost their dominance over Kosova/o’s political and

administrative apparatus and Albanian dissatisfaction was allowed to be freely aired with

large - scale demonstrations in November 1968. There were called for Kosova/o to be

granted republican status. To grant such a republic was officially seen as being merely the

-9-

first Stage towards the unification of Kosova/o, and other regions inhabited by Albanians,

especially in Macedonia, with neighboring Albania. But the fact is that until the collapse

of the last openly Stalinist regime in the world in neighboring Albania in 1991, the

Albanians of Kosova/o always faced the undesirability of secession. The poverty and

oppression of Enver Hoxha’s Albania were even less attractive than Serbian

domination.'"'

Constitutional amendments in 1968 granted the region of Kosova/o some republican

prerogatives and this was confirmed in the Constitution of 1974. Positive trends in

Kosova/o, for the first time, were obvious: institutional basis of Kosova/o was

strengthened and completed; the University of Prishtina was formed and a number of

state, educational, cultural and informative institutions had been cut off from the Belgrade

regime and put under direct control of the political and administrative power of

Prishtina.'^ Nontheles, Tito did not grant a full republican status for Kosova/o since it was

contrary to the very idea, definition and the practice of a nation-building as it applied in

all former Communist countries. On this we turn later again. Tito himself preferred a

very careful and gradual improvements in Kosova/o so that by the end of the 1970s, the

controlled autonomy of Kosova/o had finally been widened significantly.'* Economic

integration of Kosova/o into former Yugoslavia and its development and prosperity, it

was believed, would be enough, together with other Titoist postulates of socialism, to

satisfy the Albanian national aspirations.‘’The demand of the Kosovar Albanians for their

own republic has roots in the awakening of a sense of intense national pride which until

-10-

long ago was denied to them, though tolerated in other Yugoslav nationalities. The spring

explosion of 1981 is in many ways a product of this delayed consummation of national

equality and rights. Their size and ethnic compactness were, in the eyes of the Albanian

population, sufficient reason for changing Kosova/o’s status from that of a province into

the full republican one.'* If Croatian nationalism and its political consequences

represented all the time the principal threat to the integrity and stability of former

Yugoslavia, by the 1970s Kosova/o had become the loci of new ethnocentric malaises

and a new serious actor in the power balance of the than Federative Yugoslavia.

It was in Kosova/o that for the first time the police had used fire arms in 1981 against

demonstrators. The brutal response to the political demands of the Kosovar Albanians

was a sign of a collective Slav guilt towards this most impoverished non-Slav part of the

former Yugoslavia^“ It must be admitted , however, that the Serbian political and cultural

leadership used the Kosova/o riots of 1981 as an excuse for the revival of their centuries

old national program that was drafted again in 1986 by the Serbian Academy of Sciences

and Arts.^' From this time onwards, the Memorandum had been waiting the appropriate

time and executor. It was Milosevic who was deemed the most apt person for this and,

again, it started in Kosova/o at the end of 1980s.^ Before we turn on the next chapter, I

shall discus in brief the ideological background on which the so - called “ political-

territorial autonomy” of Kosova/o and the denial of its full republican status were based.

Based on communist theory and practice, the “ right to secession ” was understood as

-11-

being reserved only for the federal-type republics, while the others without such a

political-organizational status were denied the right. The latter were entitled only to the

“political-territorial autonomy”. This practice existed in former Communist countries

and served as a basis for arbitrary decision on who is a nation and who is not.'^ According

to this logic, there had been “created” new nations (like is the case with Slav

Macedonians and Muslim Bosniacs), while those who had already been established as a

nation were denied the very existence (like is the case with Jewish nation during Lenin’s

time, Cherkez nation, Albanians in the former Yugoslavia etc.). For this category, it was

argued, “political-territorial autonomy” was the only status they could reach. This was a

theoretical background. But, it should be noted, in essence it was a camouflage, as it has

been and still is a ridiculous justification that there cannot be two States from one nation,

or two “Albania” as it used to be said for Kosova/o case. The fact is that the denial of

republican status for Kosova/o than, and the independent statehood at the present, have its

roots on security matters, the fact admitted as far back as 1982 by the then Interior

Minister of Yugoslavia, the Slovene Stane Dolane.^“*

This is not to say that politically Kosova/o , despite its legal position, did not play its role

in the balance of power system within the former Yugoslavia. The difference between

Kosova/o and the others in former Yugoslavia consisted in the fact that it had all the time

until the dissolution of Yugoslavia been used to check Serbia’s aggressive intentions.

When Yugoslavia’s dissolution started, it was clear that Serbia was in its way to

implementing the National Program of Greater Serbia (especially from 1989 onwards),

-12-

and its centralist tendencies became clearer than ever before.25

2. Tracing the Break-up and the Main Events Leading to the Conflict in Former

Yugoslavia and its Violent Dissolution

In recent writings of the various authors regarding the dissolution of former Yugoslavia

and the events leading to it, there could be found a detailed elaboration of the genesis of

Yugoslavia’s break-up. It goes as far back as 1918, which is a right finding since in that

date it started the fomentation and institutionalization of the Serbian hegemony over the

others, first against the Croats and Slovenes and, later, against all former

Yugoslavia’s ethnic communities. Based on this fomentation and institutionalization, in

the mid-1980s, when a process of democratization started within former Communist

countries, the Serbian nationalism embarked on the revival of its old idea of Greater

Serbia drafted long time ago by Ilija Garasanin (1844). This revival was deemed

necessary by the Serbs since they were feeling “endangered” by the new political reality

established in the then Yugoslavia and by the international environment that was being

ramified.^*’ Ups and dawns of the post-War Yugoslavia in economic, political, legal and

cultural sphere created all the preconditions for the Serbian aggressive nationalism to

come to the fora, which was sanctioned in 1986 in the famous Memorandum of the

Serbian Academy of Sciences and Arts .27

Paradoxically though, Kosova/o and Albanians were used as a pretext to prove the

-13-

“Titoite plot” against Serbs, in a time when Albanians as a whole were the less

represented in State and political structures of Communist Yugoslavia and their

autonomy was about formal.^* Yet, Kosova/o’s autonomy had to be abolished formally in

its entirety at least for two reasons. First, it was needed in order to teach a lesson for

eventual dissobeyance on the part of other republics and, second, to have Kosova/o’s

formal vote against the others because the Serbs were highly convinced that Yugoslavia

would never cease as easy to exist so that they could blackmail the others freely. In the

mid-1980s, when asked about the future of Yugoslavia, a Serbian had told a Washington

Post’s journalist that Yugoslavia would never cease to exist.^ This was the Serbian mind­

set and their spiritual state on which the Memorandum had been based and on which it

counted too much. This too explains Milosevic’s coming to power so easy. '’ With this

state of affairs, Kosova/o of 25th April 1987 became the date of self-destruction of

former Yugoslavia, a date when formal execution of the war-preparations.^' Dragisa

Pavlovic, head of the Belgrade communists, on the occasion of his revocation from the

post in September 1987 (the famous 8th Session of the Belgrade communists) warned

that Serbs could very easily come into the conflict with the others if they were to insist on

living within one State^^ In fact, these words uttered by Dragisa Pavlovic showed the

very exclusivist and aggressive nature of the Serbian nationalism and its quest for

territorial expansion, the dangers and consequences it would have in the years to come for

regional and wider stability ”

Western and other interpretations of the causes, motivations and the nature of the conflict

-14-

in former Yugoslavia vary from one author to the other. Nevertheless, as we have seen

earlier in this work, it was a war for territorial conquest carefully prepared and conducted

by Serbia’s leadership. Unfortunately, the international response has not been along these

lines which, in turn, left a more room for its very careful and cunning preparation by the

Belgrade regime. This preparation process for the conflict and the war in former

Yugoslavia had been completed approximately by April-May 1990 and comprised

psychological, institutional, economic, propagandistic and military preparations for war,

or wars, as the case might be.

Serbian intellectuals in the mid 1980s created a critical mass of prejudice, ethnocentrism,

and war-mongering that made possible Slobodan Milosevic’s rise to power and which

created the mass psychological preconditions for aggression against Slovenes, Albanians,

Croats, and Muslims. Anti-Albanian pamphlet published in Praxis by Serb intellectuals,

after Memorandum represented a second most influential paper. Its aim was to support

the allegedly Serbian social and political discrimination that was never proved

empirically. It did suffice that Belgrade based press and media supported such allegation

of Serb discrimination in Kosova/o and elsewhere in former Yugoslavia.^“' First

promotion of this psychological preparation and war hysteria and, consequently,

implementation of the dream of Greater Serbia, occurred on 25 April 1987 in Fushe

Kosove ( In Serbian: Kosovo Polje). On this date Milosevic made his famous promise to

the Serbs by saying that “No one has the right to beat You up’’. The final phase of this

psychological preparation was the end of 1989 when under the auspices of the Orthodox

-15-

Church of Serbia and approved by the Serbian authorities, there had been dug up the

purported bones of Tsar Lazar of Serbia. In an earnest parody of a medieval cult, Lazar’s

bones were carried aroimd Serbia to summon up the true spirit of Serbdom before being

reburied.

The legal-institutional preparations for conflict and the war of aggression were carried out

between 1988 and 1990. It began with unilateral abolition of the autonomous provinces

of Kosova/o and Vojvodina during 1989 - 1990, and continued with institutional

usurpation or paralysis of the federal state and political institutions (Central Committee

of the League of Communists of Yugoslavia, Collective Presidency of SPRY, diplomatic

representations , TANJUG, the Central Bank etc.). Stipe Mesic, who was to be the

Croatian rotating president of the Collective Presidency, was blocked by Serbia and its

satellites (Montenegro, Kosova/o and Vojvodina) in May 1991. This marks the end of

institutional destruction of the former Yugoslavia.^’ In the constitutional sense, on the

other hand, the unilateral changes to the status of Kosova/o and Vojvodina mark the

beginning of the process of Yugoslavia’s violent disintegration. It marked the begimiing

of the radical change in the balance of power between the federal units of the former

Yugoslavia with an open hegemony tendency on Serbia’s side.

The military preparation - political, strategic and operational - of the JNA (Yugoslav

People’s Army), guided mostly by Serbs, for war began at its very inception, after Tito’s

death, and were systematically conducted especially in the period between 1986-1990.^® It

-16-

was not the ideology, but the Serbian National Program that drew the military leadership

to the side of Slobodan Milosevic. The fact that from the beginning of 1980s all Serb-

inhabited areas of the former Yugoslavia had been under the command of Belgrade Army

headquarters was proved real when by the end of 1990 all arms that belonged to the

territorial defense forces in Slovenia, Croatia and Bosnia-Herzegovina were seized by the

Yugoslav People’s Army (JNA), an event that happened in Kosova/o right after the 1981

riots^’ When the fighting broke out in Croatia (September 1991) and Bosnia-Herzegovina

(March -April 1992), the military openly sided with the Serbs in their effort to create a

Greater Serbia.*'“

The economic preparation of the JNA and Serbia for war was conducted, as absurd as it

may seem, during the reformist mandate of Ante Markovic. The refomis involved,

specifically, making the Yugoslav dinar convertible and centralizing all values and

foreign currency payments. This led to a flood of foreign currency into the National

Bank. Serbian banks placed a large portion of the resultant foreign currency reserves in

foreign countries, particularly in Cyprus, and throughout banks in Europe and America.*"

The final act of Serbia’s economic preparation for warfare occurred in December 1990,

when Milosevic’s regime, without the knowledge of the Central Bank, extorted § 2

billion of the Yugoslav dinar’s hard-currency backing. Subsequently, all the resources of

the Central Bank of the former Yugoslavia (foreign currency, gold, and other valuables)

were used for financing the war.**

-17-

The international - political and diplomatic preparation of the aggression was insured by

the very logic of the way in which the international community operated, inertia and an

apologetic stance in favor of the status quo regarding international relations, - in which

Yugoslavia played an important role during the Cold war -, guaranteed for Serbia an

initial and abiding passivity on the part of the West’s approach to the aggression/^

Moreover, the domination of Serbs and Montenegrins in Yugoslavia’s diplomatic corps

enabled the instantaneous serbianization of this body, transforming it into a crucially

important diplomatic campaign team in support of aggression.

Serbia’s foreign relations strategy was very simple : leaning on all kinds of real and

mythical historical alliances, whether ethnic (Russian) or those of “traditional friends’’

(France), those established through historical manipulation (demonization of Muslims as

religious fanatics and Croats as Nazis), and the exploitation of the holocaust (Israel and

the Jewish community), as well as those founded on political interests opposed to

disintegration (Great Britain). Ironically, as the war progressed, it was the actions of the

Serbs most closely mirrored what the Nazis had done to Jews during the World War

When looked at in retrospect, the “economic war’’ of December 1989 ( between Serbia

and Slovenia), attempts at political and economic redefinition of the former Yugoslavia

with Serbia and Montenegro opposing it fervently, aiming certainly at strengthening the

federal structure, the independence efforts by Slovenia and Croatia ( March-June

-18-

1991) , Macedonia and Kosova/o (September 1991), Bosnia - Herzegovina (March-April

1992) , all were undertaken as a result of Serbia’s aggressive plans against the others in

former Yugoslavia.

3. Initial response of the International Community

In an article about former Yugoslavia published in Washington Post on 17 December

1989, it was written, among others, that Observes say Milosevic is using Kosovo for

a larger, unknown political purpose”.''

This ignorance on the part of the West led to the highly inertive responses to the crisis at

its very beginning. It would take some months of destruction in Bosnia and the

revelation of concentration camps until the West discerned the real aims of Milosevic’s

Serbia. Yet, the response never came as it should have, as it will be seen in brief This

fact was skillfully used by Serbia to achieve, at least partly, its war aims, that is, the

Serbian project to systematically create, through violence that included ethnic cleansing,

the borders of a new, ethnically homogeneous set of contiguous territories.“' ’

Before the violence began, negotiations among the republics during the Spring of 1991 to

achieve a loose federation of fully or semi sovereign states failed, apparently owing to the

intransigence of the Serbian leadership, which had hitherto dominated the political and

-19-

military structure of the Federation. The Croats and Slovenes wanted a loose federation

that would dilute the Serbian influence, so did Bosnia and Macedonia, although their

wishes were not so obvious at the time. The Serbians wanted a tighter federation to

preserve its centralized control of the politics and economy and its dominant role in

Yugoslav society

The support for maintaining the territorial integrity of the federation voiced by

representatives of influential states and organizations, including the united States, the

European Community (EC) and its members, and the Conference on Security and

Cooperation in Europe (CSCE), undoubtedly strengthened Slobodan Milosevic in his

perception that flexibility was not required in negotiations, since independence for

Slovenia and Croatia was not being supported internationally.^’* Instead offering to accept

a looser (con) federation, the Serbian leadership had the central army declare martial law.

On June 21, 1991, the US Secretary of State, James Baker, while visiting Belgrade,

strongly endorsed a declaration adopted two days earlier at the Berlin meeting of the

CSCE, which expressed support for democratic development and (the) territorial integrity

of Yugoslavia. '® This US stance was later justified as if it was based on the ongoing threat

that Yugoslavia’s dissolution could have had on the events in former Soviet Union and its

eventual impact on Europe,^“ while Baker himself, in his book “Politics of Diplomacy:

Revolution, War and Peace 1989-1992” (New York 1995), says that he had warned the

than Yugoslav Premier, Ante Markovic, not to use force for protection of Yugoslavia’s

borders. ' The fact is that long service in Belgrade of the two of Baker’s advisers,

-20-

Lawrence Eagelburger ( Deputy - Secretary of State) and Brent Scowcoaft ( National

Security adviser) seems to have introduced a strong element of emotional commitment to

the Yugoslav cause, as opposed to Western interests, which blinded them to see the real

aims of Milosevic.^^

With this state of things and despite some early US warnings addressed to the Serbs,

Croats and Slovenes regarding their respective policies,” the Yugoslav People’s Army

(JNA), with Ante Markovic still as a Prime Minister, left its barracks and attacked the

provisional Slovenian militia on June 27, 1992. Major European powers ( especially

Great Britain and France) remained bedeviled by national rivalries, so that the then EC

(now European Union) and CSCE (now the Organization for Security and Cooperation

in Europe) were not ready for the crisis in former Yugoslavia, a fact that was exploited by

Milosevic to achieve its war aims.”

The members of the European Community were just about to start the final phase of

negotiations leading up to the Maastricht Summit of December 1991. Nevertheless, the

Community immediately involved itself in the crisis, reluctantly though and despite the

fact that former Yugoslavia was not one of its members. Within seventy hours, a “troika”

of EC Foreign Ministers (those of Italy, Luxembourg and the Netherlands) mounted two

rapid missions to Yugoslavia” The EC negotiators received repeated promises of cease­

fires, but violence erupted again as federal troops continued to consolidate their positions

in Slovenia ” Troika’s mission was proved to be just an excursion into peacemaking, and

-21-

the “hour of Europe” in its worst sense was to be later witnessed by Bosnia-Herzegovina

and its people. The European Council, at its scheduled meeting in Luxembourg, then

called for an emergency meeting of the CSCE. Their own summit in Luxembourg

was intended to lay the basis for the future European Union envisaged in the Mastricht

Treaty signed six months later. It was proved psychologically difficult for the Twelve to

adjust to the idea of a federal state collapsing before their eyes.

The then CSCE was just being transformed from a mechanism dedicated to maintaining

crisis stability in Cold War Europe to a standing organization capable of offering

procedures akin to collective security within Europe. In practice, of course, the CSCE and

its “conflict prevention mechanisms” - a few unarmed men in suits with diplomatic

passports and instructions to see all sides of the question - quickly renounced any role.

Instead, in the highest tribute that one quango can pay to another, the CSCE effectively

passed the parcel containing the true bomb to the European Community ” In the

meantime, a monitoring mission of fifty observers had been dispatched in the area, but

hostilities broke out in Croatia, in particular in areas predominantly inhabited by Serbs.

Serbian fighters in these regions were supported by the Yugoslav People’s Arniy (JNA)

forces, who significantly increased their involvement in the crisis.

Despite the scale of the bloodshed in Croatia, the UN Security Council had remained

inactive for exactly three months, and even when it met. Article 2(4) of the Charter was

not invoked. There was no suggestion that an international act of aggression had taken

-22-

place. ® The Council convened in response to requests from Austria, Canada, Hungary

and, most crucially, Yugoslavia. The Yugoslav delegate opened the discussion and

requested that a complete embargo on all deliveries of weapons and military equipment to

all parties in Yugoslavia be adopted, i.e. he requested mandatory sanctions against the

state he purported to represent. Its effects will be disastrous in the time to come,

especially after 1992, when the war in Bosnia-Herzegovina started. The embargo was

never lifted during all the time the war was going on. This step of the former

Yugoslavia’s diplomatic representative to the UN shows the pre-meditating plans for

agression on the side of Serbia.' ® The United States delegation, uniquely, continued to

classify the situation as one of “outright military intervention against Croatia” by the

JNA. Secretary of State Baker, speaking for the United States, declared that “ the

apparent objective of the Serbian leadership is to create a “small Yugoslavia” or a

“Greater Serbia”... based on the kind of repression which Serbian authorities have

exercised in Kosovo for several years...”. On 25 September 1991, when the arms embargo

was imposed by Res. No.713.,®’ James Baker, on behalf of the US, EU and the CSCE,

invoked all the international documents (the Helsinki Final Act, the Charter of Paris, and

the UN Charter) in favor of non-changeability of internal and external borders by force.

The Security Council then itself voted unanimously that “no territorial gains or changes

within Yugoslavia brought about by force are acceptable”.®“ On these and other related

issues we discuss later.

Initial response. It should be noted noted, to the former Yugoslav crisis was marked by

-23-

non-preparedness of the West, espeeially Europe. Caught between Maastricht and the

Soviet threat, Europe would provide enough space for Serbia’s plans to achieve territorial

gains.* It is only two West European figures, Mrs. Thacher and Alois Mock, who

persistently warned of the dangers of violence in Yugoslavia.*^“* In these circumstances,

the US was paralyzed to act effectively, since it was believed that the “hour of Europe”

had come, and the Soviet government as well took a close interest in Yugoslav

developments throughout the countdown to war. Then, after it started, it had not so much

impact on the events, but its successor, the Russian government, owing to the European

half-hatred support to the Serbian victims, would enter the scene by mid-1993 and take a

role in the conflict that it did not deserve objectively.

4. The Hague Peace Conference on the Former Yugoslavia and Its Impact on the

Yugoslav Crisis

The Hague Peace Conference was convened as a result of a franko-german compromise,

which means a beginning of Europe’s obvious disunity over the crisis and Serbia’s war

aims clear ramification. It coincided with the fact that the CSCE soon reached the limits

of its influence in the Yugoslav crisis so that the leading role in international mediation to

the crisis was relinquished to the EC, whose good offices were accepted by all sides in

Yugoslavia by mid-1991.

-24-

By early July 1991, most of the German political parties were being convinced that the

war in Slovenia was a war of aggression committed by Serbia, and demanded that the

crisis be ended by recognition of those republics wishing to go out, thus

internationalizing the crisis. This would open the way for international community to

regard it in accordance with Chapter VII of the UN Charter. This marks the beginning of

the French-German cleavage over the war in Yugoslavia.®^

As events moved on, so the deep seated anti-German feelings among Chancellor Kohl’s

colleagues in London and even more in Paris were to come to surface.®® It is against this

background that a compromise was found in convoking the Hague Peace Conference on

Yugoslavia and setting up the Badinter Committee (later the Badinter Commission). At

this stage, it proved impossible any discussion in favor of military intervention to stop the

coming tragedy in Yugoslavia, which gave clear signals to Milosevic that he could safely

pursue his war goals. The work of the Conference and its arbitration Committee will

serve as a guidance for the Greater Serbia, which could be seen by Serbia’s intransigence

and its attitude towards the Conference’s work. Serbia treated it as a good offices and as a

simple mediation effort, in both cases will no binding force for arbitration in the conflict.

Now we discuss the Hague Conference itself and the EC’s attitude on the eve of its

establishment. On August 27,1991, the European Community and its member states,

acting through an extraordinary ministerial meeting assembled in Brussels, expressed

-25-

dismay at the increasing violence in Croatia, reminding “ those responsible for the

violence” that the EC was determined “never to recognize changes of frontiers which

have not been brought about by peaceful means and by agreement”. The statement

deplored the Serbian irregulars’ resort to military means and the support given them by

the Yugoslav People’s Army (JNA), calling on the “Federal Presidency to put an

immediate end to the illegal use of the forces under its command”.*

The Community further stated in its declaration of August 27, that it could not “stand idly

by as the bloodshed in Croatia increases day by day” and it urged the parties to the

conflict to accept a peace conference and the arbitration procedure. The peace conference

was to bring together, “on the part of Yugoslavia”, the Federal Presidency, the Federal

Government and the Presidents of the Republics. It accepted that “Yugoslavia” still

existed as a state rather than a mere geographical description (“on the part of

Yugoslavia”). Setting up of the Arbitration Committee headed by the French Judge,

Robert Badinter, was much in line with international practice as applied to similar cases.

It was to give its decision within two months.*®

The Hague Conference met at the Hague on September 7,1991, under he chairmanship of

Lord Carrington. The mandate of the Conference had been refined by the EC, rather than

by the parties to the conflict, in an EC ministerial declaration of September 3. It was “ to

-26-

ensure peaceful accommodation of the conflicting aspirations of the Yugoslav peoples,

on the basis of the following principles: no unilateral change of borders by force,

protection for the rights of all in Yugoslavia and full account to be taken of all legitimate

concerns and aspirations”.*’

There were twofold impacts of the Conference on the Yugoslav conflict, although by the

end of 1991 it ended in failure with the peace-keeping as a substitute for military

intervention to stop the war.^° First, the Arbitration Committee, as an organ of the

Conference, in its first Opinion of 29 November 1991 clearly stated that the Socialist

Federal Republic of Yugoslavia is in the process of dissolution”, while the right to

independent statehood belonged to the republics only and not to the peoples of former

Yugoslavia. Second, by doing this, the Conference and the EC would give a clear signs

on the impermissibility of internal border changes by force. These issues will be

discussed later, since their clear ramifications will be seen in other Badinter’s opinions on

the crisis. However, we should note here that on November 1991, on the initiative of

Serbia there would be a question to the Conference regarding the two issues: first, who is

entitled to self-determination and, second, whether the republican borders could enjoy

international protection. These two questions showed the very nature of Serbia’s policy.

These questions were the logical consequence of the Memorandum of the Serbian

Academy of Sciences and Arts, in which there were provided the solutions that if

Yugoslavia disintegrates than its borders should change s well in order to satisfy

-27-

the Serbs and the Serbian mind-set that the internal borders were a Titoist plot against

Serbia and the Serbs. In this sense it could be said that this stance of the Conference

represents a first serious formal and legal blow to the Serb idea of Greater Serbia.’'

On the other hand, one could not help noticing that this served at the same time as a

guiding point for further Serbian expansion in order to create territorial base for the new

“republics”, first in Croatia and later in Bosnia-Herzegovina, by ethnically cleansing the

non-Serbs. This was a result of a non-implementation force of the Conference’s decisions

and the fact that other republics were as yet not recognized internationally. Hence, the

German opinion that Serbia’s non-recognition of other republics construed as a validation

of its policy of conquest seems now, as it did than, fully justified.” This German stance

would shape, in common lines, the policy of recognition, that is, the policy of non­

recognition of the new entities created by force and through the policy of genocide and

ethnic cleansing.”

5. The so-called “Guidelines on Recognition of New States in Eastern Europe and

the Soviet Union” and their Impact on Former Yugoslavia

Even when the USA denounced Serbia as the aggressor in September of 1991, the

accompanying message was that the USA, finding no strategic interest at the time, would

not militarily intervene to stop the killing. In the mean time, as we saw, the EC was not

prepared for military intervention either. Encouraged by this, the Serbian leadership

-28-

escalated attacks on civilians in Croatia.

Later, with the change in geopolitical considerations (the break up of the Soviet Union)

justifications for discouraging the democracy - and independence- seeking Yugoslav

republics came to an end. In this contributed also Serbia’s intransigence to accept

anything but centralized federation, or, its concept of Greater Serbia as the case may be. It

is within this context that the EC made public its so-called “Guidelines on Recognition of

New States in Eastern Europe and the Soviet Union” on 16 December 1991. Austro-

German pressure on the EC to recognize those republics wishing it, especially Slovenia

and Croatia, played an important role.’"' The following will be the discussion of the

background for their drafting ( October-December, 1991) and the impact on the shaping

of the crisis in former Yugoslavia.

On 4 October 1991, the European Peace Conference issued a statement, after a meeting

held at the Hague participating also the Presidents of Croatia and Serbia and the Federal

Secretary for National defense, Veljko Kadijevic, in which the participants: “... Agreed

that the involvement of all parties concerned would be necessary to formulate political

solution on the basis of the prospective recognition of the independence of those

republics wishing it, at the end of negotiating process conducted in good faith. The

recognition would be granted in the framework of a general settlement and have the

following components:

-29-

a) , a loose association or alliance of sovereign or independent republics;

b) . adequate arrangements to be made for the protection of minorities, including human

rights guarantees and possibly special status for certain areas;

c) . no unilateral changes in borders

This agreed statement for the first time formally admitted the possibility of secession but

tied recognition of the prospective new state to the “framework of a general settlement”.

On the same day, the Presidents of five of the six republics expressed their general

agreement, with certain qualifications, to continue working on a draft paper prepared by

Lord Carrington (Chairmen of the EPC), entitled “Arrangements of a General

Settlement”. The arrangements spelled out the details of the envisaged framework

agreement, which included commitments by the republics to protects human rights,

referring to the Universal declaration of Human Rights, the International Human Rights

Covenants, CSCE documents on the human dimension, and relevant Council of Europe

instruments. Detailed provisions on human rights as “particularly applied to national or

ethnic groups” were set forth, and a special status (autonomy) was to be established for

areas in which a national or ethnic group forms a majority. In addition, provision was

made for cooperation or consultation in trade, foreign affairs and security, and a customs

union was envisaged.

The President of Serbia considered the paper unsuitable for detailed discussion.’*’ Similar

reservations were put foreword by the Vice President who, since October 3, had been

-30-

presiding over the then “rump presidency”, because, as he himself put it, the paper

recognized the legality of unilateral secession A similar arrangement for the general

settlement was nevertheless pursued further on October 25 , but the President of Serbia

again maintained his reservations with regard to this proposed solution. The Community,

in response, gave the parties until November 5 to indicate acceptance of the Carrington

outline agreement. European draft sanctions were formally prepared by the end of

October, providing for the suspension of cooperation agreements with Yugoslavia and

trade concessions. The decisions were based on the finding that the Yugoslav Federal

Republic no longer functions and the Federation itself, since 8 October, 1991 had been in

the process of dissolution. However, a special regime was to be applied vis-à-vis parties

contributing to the peace process. Serbia again refused to accept all these proposals and

the sanctions were instituted. In addition, the Community asked the Security Council to

impose an oil embargo and to adopt additional measures to enhance the effectiveness of

its arms embargo.’®

This EC’s stance, that is, that the recognition of the independence of those republics

wishing it “can only be envisaged in the framework of an overall settlement” was also

supported by the UN Security Council. Namely, on 10 December 1991, in his letter, the

Secretary General openly opted for the policy of general settlement.’‘’ But, it was unlikely

that the general consent could be achieved as long as recognition depended on the

agreement of all parties and since Serbia would, in effect, exercise its veto over the issue

of recognition, thus frustrating the talks at the Hague.

-31-

To overcome this stalemate, conditions for recognition were outlined in a common

position of the EC on the above-mentioned “Guidelines on the Recognition of New States

in Eastern Europe and in the Soviet Union”, adopted at the extraordinary EEC ministerial

meeting in Brussels on December 16, 1991. These conditions allowed for progress to be

made even in the absence of unanimity among the parties, but would still safeguard the

essence of the Carrington proposal, as the republics were required to embrace its

provisions unilaterally and to continue working towards collective agreement. The

conditions were :

- respect for the provisions of the Charter of the United Nations and the Commitments

subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with

regard to the rule of law, democracy and human rights;

- guarantees for the rights of ethnic and national groups and minorities in accordance with

the commitments subscribed to in the framework of the CSCE;

- respect for the inviolability of all frontiers which can only be changed by peaceful

means and by common agreement;

- acceptance of all relevant commitments with regard to disarmament and nuclear non

proliferation as well as to security and regional stability;

- commitment to settle by agreement, including where appropriate by recourse

to arbitration, all questions concerning State succession and regional disputes.*“

The Community confirmed that it would not recognize entities that “ are the result of

-32-

aggression”. It invited all Yugoslav republics to state by December 23 whether ; (1) they

desired to be recognized as independent states; (2) they agreed to the commitments in the

guidelines above; (3) they accepted the provisions of the Carrington, especially those on

human rights and national or ethnic groups; and (4) they approved the involvement of the

United Nations Secretary General and Security Council and continuation of the EC

conference on Yugoslavia.

Finally, the Community and its member states required that, before achieving

recognition, the Yugoslav Federal Republic pledge that it had no territorial claims against

a neighboring EC state and that it would not use a name that implied such claims. This

last requirement was inserted at the insistence of Greece, which suspected Macedonia of

territorial ambitions.*'

Serbia objected strongly to these guidelines and named them as “an aggression against

Yugoslavia” for they were the second blow to the plans of Greater Serbia. From these

papers, it was clear that there will not be granted independence for those entities without

the territorial base, that is, there will not be recognition of those entities created as a result

of ethnic cleansing of other peoples. The Guidelines served as a stick in tenns of not

validating the situations that were not in conformity with international law (genocide and

ethnic cleansing of others in order to create a territorial base, as it was the case with

“Republic of Krajina” in Croatia or “ Republika Srpska” in Bosnia-Herzegovina).*" Non-

-33-

recognition, as an established rule in international law and as a means to invalidate the

illegal uses of force with a view of achieving territorial gains, proved to be very effective

and strong in the case of Serbs.®

The decision to recognize Slovenia and Croatia by Germany before the deadlines set forth

in the Guidelines and, later, non-recognition of Macedonia ( although it fulfilled all the

conditions for it) shows that they were not strictly respected. But, this was done as a

result of Serbia’s intransigence and its pursuance of the aggressive nationalistic policy

against the others in former Yugoslavia. It is this reason that Austro-German pressure and

policy for the recognition of those republics wishing it should be viewed as a right step in

a right direction and not as a cause of war, especially not as an incentive for “secession”

of Bosnia-Herzegovina and Macedonia '*

6. Impact of the ‘‘Guidelines” on the Kosova/o Issue

Quite at the beginning, it should be noted that the Guidelines did not touch upon the basic

criteria for international statehood, that is, possessing of territory, population and a

government in control of its territory and the population. The conditions for an

international statehood were taken for granted, while the fulfillment of the criteria as

foreseen in the Guidelines was designed to politically influence the events in the former

Yugoslavia and to fit the EC’s interests. Their aim was to enable establishing the

diplomatic relations with those entities which fulfilled the conditions set forth in the

-34-

Guidelines and, at the same time, to punishing those who would not comply with them.

Nevertheless, the actors of the crisis viewed them as a reference point for international

statehood, that is, for their very state-being according to the rules of international law and

relations.*^ Consequently, the applications submitted within the terms set forth in the

Guidelines and the positive response to them had been viewed as a crucial stage in the

process of nation (state) building and international subjectivity. This was true only for

those entities with no clear territorial base, that is, for the governments in effective

control of their population and territory that were achieved by the use of force (ethnic

cleansing of the others with a view of forming the territorial base as one of the

preconditions for international recognition of the sovereign statehood), as it was the case

with the Serbs in Bosnia-Herzegovina and Croatia.

Unlike other territorial entities of the former Yugoslavia, Kosova/o at the beginning of

the crisis, no longer controlled its own police or territorial defense force as a result of a

continuous Serbian policy of disarming all the Albanians while simultaneously anning

ethnic Serbs and flooding the region with military forces sine 1987. When the crisis

began, the Kosovar Albanians choose the policy of non-violence as a means of setting up

the “parallel institutions” with the aim of challenging Serbia’s sovereignty over

Kosova/o. By boycotting completely the Serbian ruled Kosova/o’s institutions since

1989, the Kosovar Albanians left on Serbia the shame of occupying power, a fact

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noticeed as well by a foreigner traveling on the area.* This state of occupation has so far

been successfully challenged by the majority of Kosova/o’s population, especially after

the beginning of former Yugoslavia’s break up and the subsequent establishment of

Kosova/o’s own state and political institutions as opposed to Serbia’s.

The policy of developing “ parallel ” institutions began with Serbia’s suspension of the

Kosova/o’s Provincial Assembly after the latter had proclaimed the “Constitutional

Declaration on Kosova/o as an Independent and Equal Entity with the framework of the

Yugoslav Federation/Confederation and as an Equal Subject with its Counterparts in

Yugoslavia” on 2 July 1990. The Assembly continued to convene (except for Serb

deputies, many of whom afterwards represented Kosova/o in the Serbia Parliament) and

on 22 September 1991 it declared the Republic of Kosova/o. In the referendum organized

by the Assembly and held on 26-30 September 1991, a full 99.87 per cent of those ho

voted (turnout was 87 per cent due to a boycott by local Serbs) affirmed their desire for

Kosova/o to be a sovereign and independent state.®’

The last time the assembly convened was on 2 May 1992 when it announced multy-

party, general and Presidential elections for 24 May 1992. Elections to the 130-member

Assembly resulted in the Democratic League of Kosova (LDK) wining 76.4 % of the

vote and getting 96 deputies; while the Parliamentary Party of Kosova/o (PPK) got 4.86

% and has 13 deputies. Other successful parties were the Peasants’ Party of Kosova/o (7

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deputies) and the Albanian Christian Democratic Party ( 7 deputies ). In the Presidential

election, Ibrahim Rugova, the popular and charismatic leader of the LDK, won by an

overwhelming majority.

On December 1991, The Government of Kosova/o in exile, headed by the Prime Minister

Bujar Bukoshi, handed over to the EPC its request for the international recognition of

Kosova as an independent and sovereign state.** Although Kosova/o has always

possessed and still possesses its own territory and population, the request for

international recognition was denied for its political institutions which declared itself the

representative of a majority of Kosova/o’s citizens did not posses coercive capacities. The

Government of Kosova/o had no army or police force which it could deploy, that is, it

was not a government in effective control of its territory and population.*’

As it will be seen later, the negative response from the Badinter Commission and its

interpretation of the Guidelines treating Kosova/o’s issue on par with that of the so-

called “Krajinska Republika” in Croatia and later with the “Republika Srpska” in Bosnia-

Herzegovina” has been done for security reasons and not the legal ones. Kosova/o as

ever since been viewed as an issue of human rights and self-determination within the

framework of sovereign control by the Serbian government. ”

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CHAPTER III: BEGINNING OF THE PEACE PROCESS IN FORMER

YUGOSLAVIA AND THE KOSOVA/O ISSUE

1. London Conference on the Former Yugoslavia (ICFY, August 1992) and Its Goals

The Hague Peace Conference had been replaced by the London Conference on the

Former Yugoslavia (ICFY). The London Conference followed the two-days meetings in

London on 26-27 August 1992. The main difference between the two bodies lies in their

legal nature. In the first case, one has to deal with the “good offices” offered by the then

EC and whose decisions were not binding, or were not supposed to be binding for the

parties to the conflict. In the second case, though, due to the seriousness of the conflict in

former Yugoslavia (Serbia’s aggression on Bosnia-Herzegovina after the latter’s

recognition by the EC (EU) - USA on 6 and 7 April 1992) respectively, the international

community menaged to convene a new international conference on the already former

Yugoslavia and whose decisions would be authoritatively binding for all the parties to the

conflict. Its decisions were supposed to implement and enforce the UN Security Council,

which it did not.'

The action of the Conference was based on the “work already done by the EC’s

Conference on Yugoslavia, especially the documents already produced”.' There were

included the Badinter’s Commission (previously named as Committee) Opinions issued

during the January of 1992. On this we discuss later again.

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Except for the provisions regarding the cease-fire in the war tom areas, non-recognition

of all the advantages achieved by force or fait accompli or any legal consequences

thereof, the promotion of the right to self-determination, respect for the territorial

sovereignty and independence of all states in the region, no change of borders by force,

the “Statement on Principles” contained a very important provision. Namely, under the

symbol ix, it was said, inter alia, that parties undertake a commitment to recognize each

other mutually.^ It represented the last blow, from the standpoint of international law, to

the plans for Greater Serbia and Greater Croatia rrespectively, that is, to the early made

Serbo-Croatian plans for the division of Bosnia-Herzegovina (the Karadjordjevo Plan

between Milosevic and Tudjman, March 1991). The plan was later operationalized by

Bosnia-Herzegovina’s Serbo-Croat leaders, Karadjic and Boban, in their meetings held in

Austria (1992-1993).''

Politically, the London Conference was a lost opportunity. It showed a turning point and

a sorry chapter in Western mishandling of the conflict^ The Conference produced a

package of useful concrete agreements among the parties. If honored, these measures

would have curtailed the fighting, ended atrocities, guarantied safe and effective

humanitarian relief and set the stage for political negotiations. In the days and weeks

that followed, the Serbs willfully ignored every accord reached and commitment made.

This defiance drew no response from the West or the UN Security Council.

Western action after London Conference told once again the Serbs, and later the Croats,

-39-

in unmistakable terms that there would be no intervention. The Serbs were further

emboldened as it became clear that the British and French considered their UNPROFOR

contingents virtual hostages and therefore sought to avoid provocations. This fact

encouraged the Serbs to threaten these and other UN forces as a way to derail Western

attempts to interfere with their ethnic cleansing of Muslim Bosniacs. Neither the United

States nor any other power saw its vital interests imperiled by the conflict. The West had

a political and moral interest in humanitarian relief and a strategic interest in containment

of Serbia - and in fact the US and the EU (then EC) have so far been successful in

protecting these two interests.

Despite its lofty aims and mechanisms, with no implementation force, the London

Conference failed: The West was first divided and immobilized over the issue of

recognition and, after the war in Bosnia broke out, also over the relief issues and the fear

the conflict may spread to the South.* The Serbian war aims were being realized, and the

Croatian to certain extent, well until the Bosnian Army launched in Summer 1995 its

decisive offensive, which paved the way for the Dayton Peace Agreements of November

that year. This offensive, it should be noted, was eased by the NATO - led military action

against the Bosnian Serb Army early that year. The Dayton Agreements sanctioned the

basic principles on territorial integrity and unity of the state of Bosnia-Herzegovina^

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2. Evolution of the Attitude of International Community with Respect of

Recognition : Advisory Opinions of the Arbitration Commission within the ICFY

( the Badinter Commission Opinions) and their Impact on the Overall Settlement

of the Crisis in Former Yugoslavia.

Except for the first opinion of 29 November 1991, the Badinter Commission has rendered

some other opinions that were of importance for the future ramifications of the crisis in

the Former Yugoslavia.

The Commission was called upon to give its opinions from the various sides, first, it was

called upon to give one opinion at the request of the Lord Carrington, President of the

Peace Conference (Opinion No.l.). Similar requests were subsequently made, as

mentioned earlier, by the Republic of Serbia using the Conference as intermediary

(Opinions No.2 and 3 of lithe January, 1992) and the Council of ministers of the EC

(Opinions 4 to 7 of 11th January, 1992 and 7 to 10 of 4th July, 1992). The Opinions from

4 to 7 were delivered on the 14th of January 1991.** Finally, in July 1993, the

Commission tackled the issue of the date when the succession to the former Yugoslavia

occurred, for which we shall discus later (Opinions 11 to 13).

The Badinter Commission tackled in its first three opinions some general legal problems;

-41-

in the first, it discussed the question of whether the seceding republics could succeed to

Yugoslavia and , if so , by virtue of which procedures ; in the second , it dwelt on

the question, also discussed earlier, of whether the Serbian population in Croatia and in

Bosnia-Herzegovina had a right to self-determination; the third opinion dealt with the

questions as to whether the international boundaries between the Yugoslav Republics

could be regarded as international frontiers (uti possidetis principle). In these opinions the

Badinter Commission stressed the importance of the rights of peoples and minorities and

even defined the norms that provided for these as part of jus cogens (binding in their

nature).

The Opinions 4 to 7 were concerned with the question of whether the Republics of

Croatia, Macedonia and Slovenia, who had finally requested recognition by the

Community and its member states, satisfied the conditions laid dawn by the Guidelines of

16th December, 1991. In all four opinions, the Commission ascertained, whether or not

referendums on independence had been held in each Republic, as well as whether each

republic had committed itself to respecting the rights of individuals, groups and

minorities. Whereas in the case of Croatia, in Macedonia and Slovenia it was found that

all the requirements had been met (save the case of Macedonia’s name), in the case of

Bosnia-Herzegovina it was emphasized that no referendum was held involving the whole

population, since on 10 November 1991 it was held a plebiscite by the “Serbian people of

Bosnia-Herzegovina’’, which had opted for a “common Yugoslav state” and on 21

December 1991 an “assembly of the Serbian people of Bosnia-Herzegovina” had

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adopted a resolution for the creation of a “Serbian Republic of Bosnia-Herzegovina” and

on 9 January 1992 the independence of this republic had been proclaimed. Due to this, on

11 January 1992, the Badinter Commission concluded that Under these circumstances

the expression of the will of the population of Bosnia-Herzegovina to set up the Socialist

Republic of Bosnia-Herzegovina as a sovereign and independent state could not be

recognized as fully established”. Referendums, although held in the other republics, were

not provided for as a precondition for recognition in the Guidelines, which represents the

first evolution of the international community’s stance on the issue.

The Badinter Commission went on to say that this appraisal could be modified if

“safeguards were established by the Republic” and i f “ necessary by way of a referendum

in which all citizens of the Republic were to participate, under supervision”. It is apparent

from the above that the arbitration Commission regarded the holding of an internationally

monitored referendum, involving the whole population, as an indispensable element for

granting of international recognition of Bosnia-Herzegovina as an independent state. The

Commission thus evaluated referendum to the status of a basic requirement for the

legitimization of secession. Finally, on February 1992, a referendum was held: 64.4 per

cent of the Bosnian population took part in the referendum, of which 99.7 per cent

declared themselves in favor of independence. The overwhelming majority of the

country’s Serb population, 31 per cent of the total, did not participate.’

From the dates already mentioned in the above opinion, it is quite clearly discerned that

-43-

the Serbs were following carefully the reluctance of the EC (EU) to solve the crisis and,

from the outset, it was sure that there would not be any military intervention . In this

connection , there was a second important evaluation regarding the issue of

recognition; On 23 December, 1991 Germany recognized Slovenia and Croatia

unilaterally to show to the Serbs that they cannot indefinitely use the former Yugoslavia’s

international subjectivity as a means too blackmail the others.

Holding of the referendums, as noted, was not provided for in the Guidelines. Hence, the

Badinter’s mentioning of the Serbs was understood by them as a clear sign that they

should make their territorial base as a precondition for their “statehood” ( before the war

in Bosnia-Herzegovina, the Serb constituted a majority in a very few municipalities, so

did the Croats, that is, all three communities were intermingled with each other).

Lastly, the recognition of Macedonia was initially refused althought is fulfiled the criteria

required. It was due to Greece’s objections over the name Macedonia that implied, in

Greece’s opinion, territorial ambitions.

Along these lines of evolution of the international community’s attitude regarding the

recognition, there would later be the ramifications of the former Yugoslav crisis in the

years to come.'°

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2.1 The Issue of Statehood of Former Yugoslavia, or, When Did the Dissolution

Occur?!

One of the most important issues of the former Yugoslavia has been and still remains that

of its international statehood. It has to do with timing, that is, with the date when former

Yugoslavia really ceased to exist and which, in turn, has its implications on the issue of

state continuity of the FRY (Serbia and Montenegro) with that of former Yugoslavia.. It

is this issue that we shall now turn to, whereas the sate-continuity matters will be

discussed in the next Chapter.

Regarding the issue of statehood and its implications, the co-presidents of the ICFY on

several occasions (November 1991, July 1992, and July 1993) demanded and received

thirteen opinions that we already mentioned. In these opinions, the Badinter Commission

concluded that with the dissolution, which started in November 1991 and ended in July

1992, the former SFRY ceased to exist as an international legal subject.

The process of dissolution of former Yugoslavia, from the political standpoint, has started

much earlier as we have already seen in previous pages of the thesis. Now, we discuss

this process from the legal point of view for it has had its implications on the issues of

succession, especially in matters of state property, archives, debts and assets of the former

Yugoslavia."

-45-

The Badinter’s attitude that former Yugoslavia has ceased to exist has been

internationally accepted, but this view has so far not been shared by the Serbs who still

consider that there had been a case of secession on the part of the former Yugoslav

Republics and that FRY ( Serbia and Montenegro ) continues the statehood of former

Yugoslavia.'· The Serbian academicians also hold the same view as the state structures in

Serbia and Montenegro (FRY).'^ Foreign academicians, all but one, agree that it has been

a case of total dissolution of the former Yugoslavia.'“ If there would have been accepted

the view that there was a secession and that former Yugoslavia still exists in the form of

FRY (Serbia and Montenegro), it would have meant not only that the rules of state

succession to the property, archives, debts and assets of the former Yugoslavia could be

imposed by Serbia and Montenegro, but also that the destruction and the crimes

committed in Bosnia-Herzegovina and Croata might have gone with impunity, including

Bosnia-Herzegovina’s entire partition.'^

2.2. The Statehood of the Republics of Former Yugoslavia

The second important issue in the case of former Yugoslavia, both legally and politically,

is that of its statehood and of the statehood of its former republics. In the Badinter’s

opinions rendered between November 1991 - July 1993, there had been stressed, besides

the fact that former Yugoslavia has ceased to exist as an international legal subject since

July 1992, that, first, the FRY ( Serbia and Montenegro) cannot represent a continuity of

-46-

former Yugoslavia and, second, that from the process of dissolution of former

Yugoslavia, five new states have appeared, which derived from it and inherited it equally

and if they do not agree otherwise, the date of their creation is as follows: 8th October

1991 - for Slovenia and Croatia, 17th November - for Macedonia, 6th March - for

Bosnia and Herzegovina, and 27th April - for the FRY (Serbia and Montenegro).

So, unless the interested parties agree otherwise, these are the dates on which the public

property, assets and various rights, archives and debts, as well as the demands of former

Yugoslavia pass on to the new successor states.

2.3. The Statehood of Kosova/o denied. Why?

As we have seen earlier, when the process of dissolution started in former Yugoslavia,

Kosova/o distanced itself clearly from the violence Serbia was exercising against the

others. At the same time the Kosova/o’s leadership viewed it and the whole war in the

north of former Yugoslavia as a redefinition of the relations among the South Slavs of

that part of the state. Consequently, the Assembly of Kosova/o after promulgating the

Constitutional Declaration (2 July, 1990) and the Constitution of the Republic ( 7

September 1990), undertook further steps, in cooperation with the already formed

political parties, aimed at fulfilling political conditions for international legitimization of

the right to self-determination of Kosova/o’s majority population. Among these

conditions for international legitimization of Kosova/o’s right to self-determination was

-47-

that of representatives of its independence movement.'^ Along these lines, as it was the

case with former territorial entities in Yugoslavia (save the case of Vojvodina), there had

been held a referendum for Kosova as an Independent and Sovereign State ( September ,

1991 ) in order to fulfilling the main criteria, that is , the representativness of the

independence movement in Kosova/o.

Internal redefinition of the relations in former Yugoslavia and Serbia’s aggressive

nationalism against the others in former Yugoslavia, well imposed for Kosova/o and its

leadership the need to pursue the same way - the path for independent internationally

recognized statehood. The Government of the Republic of Kosova/o in a letter addressed

to the European Peace Conference on 20 December, 1991, asked for international

recognition of Kosova/o’s statehood justifying it with Kosova/o’s fulfillment of the

criteria provided for in the EC’s Guidelines of 16 December 1991, as well as the

traditional criteria for international statehood (territory, population and that of possessing

a government in control of its territory).'*

The Badinter Commission in its already mentioned first opinion had concluded that “ in

the case of a federal - type state, which embraces communities that posses a degree of

autonomy and moreover, participate in the exercise of political power within the

framework of institutions common to the Federation, the existence of the state implies

that the federal organs represent the components of the Federation and wield effective

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power.'^ As communities that possessed a degree of autonomy were considered, in the

second paragraph, only the republics. Kosova/o was thus excluded from this, a fact

confirmed in all opinions and decisions issued later by the Badinter Commission.

The opinions represent an answer to the quasi legal issues, if not pure political ones, for

they sanctioned the realpolitik-type of the situation and relations, that is, the situation

and relations that existed at the beginning of the dissolution of former Yugoslavia. The

opinions represented the first valid international confirmation that former Yugoslavia had

started its self-destruction. Although in its opinions of January 1992, the Badinter

Commission did not even mention the case of Kosova/o and its recognition, in scholarly

work the non-recognition, as noted, is explained through the lack of control over its

territory on the side of organs that declared the independence of Kosova/o. But, this is not

all. It is the security reasons, first and foremost, that lie above and behind the non­

recognition of Kosova/o’s independent international statehood."®

Security concerns, that is, regional and wider peace and stability count very much in the

issues of the international recognition of new states, and this is a well known fact. If there

is a likelihood that the new state would be a stabilizing factor, than its recognition would

pose serious problems and vice versa.^' This fact seems to have been present, if not

decisive, all the time the Republican status for Kosova/o was denied in former

Yugoslavia and later after its dissolution. For how it can be explained the recognition of

Macedonia although it did not have full effective control over its own territory. The

-49-

difference is that while in the case of FYROM, Serbia did not dare to make an open

aggression which, in turn, helped the FYROM Government to effectively control the

territory and thus realize its right to external self-determination, in the case of Kosova/o

the international community was reluctant to help facilitate exercising the right to

independent statehood of Kosova/o and its majority population. Rather, the international

community encouraged the peaceful way of the Kosovar Albanians by treating Kosova as

an issue of human rights and self-determination within the framework of control by

Serbia’s govemment.^^

In fact, Kosova/o’s leadership peaceful way to achieve the effective control over its

territory has been encouraged by most of the international community. Yet, it has turned

into a vicious circle for all sides: Kosova/o itself, Serbia and the international community.

While for Kosovars the independent statehood of Kosova/o is a matter of survival, for

Serbia it is a matter of remaining in power of those structures that started the war of

aggression in former Yugoslavia. For international community, Kosova/o is a matter of

stability . It is obvious now, every day in and day out, that this cannot be achieved

by enslaving Kosova/o’s majority population for that sake. At the same time, making

pressure on Kosova/o’s peaceful leadership to accept a status short of independent

statehood runs counter to all the values proclaimed by the same international community

or, as one author has put it within the context of Bosnia’s tragedy, it runs counter to “ a

fight for a principled peace”. Kosova/o’s peaceful way to independent statehood should

and must not be neglected if there is to be peace and stability in the region.

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2.4. The Issue of Boundaries and the so-called Uti Possidetis Principle

The very nature of the wars in former Yugoslavia could be seen on the issue of borders.

From there , it is apparent enought that they were the wars of aggression against other

entities and nations and that they had long ago been prepared. In a Memorandum of the

Serbian Academy of Sciences and Arts, the issue of borders takes an highly noticeable

place and advantage to be given in future by those in power in Serbia. Also, long before

the war started, Milosevic would openly proclaim his intentions on war issues under the

well-known slogan “All Serbs in One State”.

Obsession for territory has as well been present in the case of former Soviet Union and

elsewhere in the ex-socialist countries. '* The difference with Serbia, though, lies in the

fact that it was and still is a part of its national program for territorial and national

expansion towards the lands that have never been Serbia’s on whatever basis, except by

mythology. Slobodan Milosevic, an executor of the Memorandum, had warned in public

that the disappearance of former Yugoslavia would rise the question of the future

boundaries between the republics, while his supporters in the media already had their

plans worked out. On 12 February 1991, Ilustrovana Politika (Belgrade based newspaper)

published a map showing the future shape of Serbia, according to which it would have to

incorporate the bulk of Bosnia-Herzegovina and a large part of Croatia. The opposition

parties did agree as well.^ Kosova and its territory as a whole were taken for granted, i.e.,

as a territory that cannot be contested that belongs to Serbia.

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This Serbian stance would take its apparent shape in the formal question addressed to the

Conference on Yugoslavia by the then Serbia’s Foreign Minister. In a letter dated

October the 4th, 1991, Serbia asked the Arbitration Committee ( Commission ) of the

Conference, among others, the following: “Can the internal borders between Croatia and

Serbia and between Bosnia and Herzegovina and Serbia be regarded as frontiers in terms

of public international law”.®

In fact this was a clear sign regarding Serbia’s future targets and its policy of “ethnic

cleansing’’ since the redrawing of borders could not be achieved peacefully, especially in

Bosnia-Herzegovina due to its ethnic mixture.^’ On the other side, the international

community fairly early, by the end of August 1991, would give its first message that the

so-called uti possidetis principle (have what you have had) will be applied in the

Yugoslav case as well. Thus, on August 27, 1991 the European Community and its

member states expressed dismay at the increasing violence in Croatia, reminding “ those

responsible for violence” that the EU was determined “never to recognize changes of

frontiers which have not been brought about by peaceful means and agreement”. The use

of force by Serbia’s irregulars and the Yugoslav People’s Army was declared as illegal.·28

This stance was echoed latter by the then CSCE (now OSCE), the UN, and most of

individual states, and had been internationally once again confirmed in Opinion No.3 of

the Badinter’s Commission which stated th a t: “... In the absence of an agreement to the

contrary, the former boundaries acquire the character of borders protected by international

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law. Such is the conclusion derived from the principle of respect for the territorial status

quo and particularly that of uti possidetis which, although initially recognized in the

settlement of problems of decolonization in America and Africa, constitutes today a

principle of general application as declared by the International Court of Justice”.T h is

ruling has been arrived at despite a memorandum submitted by the “rump” federal

presidency. The presidency denied the applicability of uti possidetis to internal

boundaries since, it asserted, they had been brawn up to meet policy considerations after

World War II, at the instigation of the Communist Party and without regard to ethnic

considerations.^”

Looking at the background as to how the principle had been applied, it is easy to discern

two issues. First is that the main reason for its applicability has always been to preserve

peace and stability in the region, that is, to ensure that borders would not be a bone of

contention between the newly established states, notwithstanding their real history and

whether they were redrawn in a just and right manner.^' Badinter as well pursued this

line of reasoning stressing that uti possidetis principle’s “obvious purpose is to prevent

the independence and stability of new states being endangered by fratricidal struggles”. ^

Second, the way it was applied in the past, as mentioned by Badinter himself, dealt

mainly with border lands and populations not of large portions and numbers respectively.

In the case of former Yugoslavia and the Soviet Union, though, it was interpreted as a

principle comprising large parts of territories and population, like it was the case with

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Kosova/o. This way of application leaves the people on “the wrong side of the border”

ripe for “ethnic cleansing”.” Consequently, this way prevents in advance any discussion

over the border adjustments and equalizes the cases where the territorial base is created

by the use of force and ethnically cleansing the others with those where the territorial

bases existed since the time immemorial (the case of Kosova/o and that of “Republika

Srpska”).”

The first serious attempt to correct this stance was done at the European level when

“Pacte sur la Stabilité en Europe had been drafted ” in August 1993. It fell in deaf ears

though.”

2.5. The right to self-determination within the context of former Yugoslavia and the

subjects entitled to that right: Republics or Peoples?

Historically, the principle of uti possidetis meant that it should cover all the territories

conquered by force, notwithstanding the will of the population. The principle of self-

determination, that is, the “expression of the will of a people” had no role to play.” After

the Second World War, though, this situation changed so that the principle of self-

determination served to rectify uti possidetis principle in its previous form : expression of

the will of a population had to be taken into account while drawing the borders. The

decolonization process is a good proof of this state of affairs. Yet it was never recognized,

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until 1993, that the application could be based only upon the ethnic composition of a

given territory: self-determination remained for a long time after the War as territorially

based. This situation, from the formal (legal) standpoint of international law, changed in

1993 when it had been adopted the Vienna Declaration that recognizes the ethnic self-

determination.^’

Serbian mind-set, at the beginning of the crisis, was “ethnically based” when it came to

those territories where the Serbs were in majority, though dispersed and with no territorial

base, and “territorially” when it came to those parts they controlled effectively (the case

of Kosova/o), notwithstanding the ethnic composition. In line with this, Serbia

formulated the second part of the question quoted above . Namely, Serbia’s Foreign

Minister asked the Badinter Commission whether “the Serbian populations in Croatia and

Bosnia-Herzegovina were entitled to benefit from the right to self determination”.’* The

Commission had already addressed the problem of self-determination in the abstract

when rendering its second opinion. The Commission drew a distinction between

minorities and entities established as territorially defined administrative units of a federal

nature, whose population was entitled to exercise the right to self-determination if certain

procedures were followed, including the holding of a fair and internationally supervised

referendum in which all groups could participate on an equal footing. Uti possidetis, in

this sense, was adopted as a means to prevent a total unraveling of the existing structure

of government and territorial definition. The Commission tempered the consequences for

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a minority suddenly finding itself within a new state by ascribing a second level of

content to the right to self-determination. It confirmed that all members of minorities

were entitled to benefit from minority and human rights established in international

community. In conclusion, the commission affirmed, first, “that the Serbian populations

of Bosnia and Herzegovina and Croatia have the right to benefit from all the rights

recognized as belonging to minorities and ethnic groups by international law and by the

provisions of the draft Convention of the Conference on Peace in Yugoslavia”; and,

second, “that the republics ought to grant to the members of these minorities and ethnic

groups the totality of human rights and fundamental freedoms recognized by international

law, including, as the case may by, the right to choose their nationality.^’

This sort of self-determination granted to the Serbian people, that is, the right to internal

self-determination was much obvious in the Commission’s view regarding Bosnia-

Herzegovina’s application for international recognition of its statehood.. The Commission

also based itself on the human right of minorities and ethnic groups to equal participation

in government. Since no referendum on independence had taken place that would have

given a voice to these minorities and groups, the commission found that the popular will

for independent statehood had not been “clearly established”.'*“ The Commission

indicated, however, that this conclusion could be changed if an internationally supervised

referendum, open to all citizens without discrimination, were held.

A referendum under international supervision, as noted earlier, was not required by the

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EC’s Guidelines. Yet, Bosnia-Herzegovina held a referendum on March 1, 1992,

although many Serbs boycotted the poll, almost 63 percent of the electorate opted for

independence. The problem is that Serbs, with their national program in mind, had

already made their own “declaration on independence” on January 9,1992. All they were

waiting was the appropriate time to start forceful creation of the territorial base which

they lacked. This started in full, at the behest of Belgrade, after Bosnia-Herzegovina was

internationally recognized. Despite all the tragedy in Bosnia-Herzegovina and the heavy

prize paid for its statehood, the Dayton Peace Accords, although recognized the

“Republika Srpska” as one of the entities, they certainly denied the international

recognition of its legitimacy. This has been and is a right step in a right direction due to

the way the “Republika Srpska” was created.

2.6. Was and is it Kosova/o Entitled to Self-Determination According to the Rules of

International Law?

Kosova/o has been and remains as one of the key elements of the former Yugoslav crisis.

Yet, the right to self-determination, that is, the independent statehood of Kosova/o was

denied due to the reasons already mentioned. Answer to the above question, thought,

means that we should once again repeat in brief the basis for self-determination of the

entities of former Yugoslavia.

Although in former Yugoslavia’s scholarly work there have been and are still illusions

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that the basis for self- determination of former republics was the 1974 Constitution, it is

sure that the Constitution did not contain any provision regarding the right to self-

determination up to secession, as this was understood in all former Communist

countries '*' An exception to this were the provisions of that constitution contained in its

preambular part. This fact has rightly been labeled as a “ reincarnation ” of the right to

self-determination for it was considered as valid only outside the former Yugoslavia and

in its relations with foreign countries and peoples, while for the internal purposes it was

considered as consumed by the mere fact of the creation of former Yugoslavia.'*"

This brief overview shows that self-determination has been put in life outside the context

of the 1974 Constitution, and mainly as a result of the action of centrifugal forces. This

fact was also confirmed in Badinter’s opinion No. 1 of November 1991, in which the

Commission stated that:

“.... The form of internal political organization and the constitutional provisions are mere

facts, although it is necessary to take them into consideration in order to determine the

Government’s sway over the population and the territory”.

The last part of this sentence reveals also that the Constitution of 1974 served as a means

to differentiate and facilitate those entities entitled to self-determination, and, at the same

time, give a clear sign to all parties that there will not be allowed the use of force by any

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“government” or “community” with a view of creating a new territorial base, the sign

that was misunderstood by the Serbs in hope that the international community would

legalize and legitimize internationally their military gains. In sum, the Constitution of

1974 served only for the purpose of facilitating the process of self-determination and as a

reference point to discern the time the break-up of former Yugoslavia occurred, an event

that followed as a result of the action of centrifugal forces of the time.

On the other side, the break-up of that state, from the standpoint of international law, was

internationally legitimized due to the existence of the principle of self-determination

(“expression of the free will”) and the very repressive nature of that state, as it was the

case with all former Communist countries'* In other words, former Yugoslavia lost its

international legitimacy owing to the regime’s repressive nature, which, in urn, activated

the centrifugal forces within it. As it can be seen from this, the mere facts, that is, the

realpolitik has been a key reference in determining the initial subjects of self-

determination within former Yugoslavia.

Although international law has a “neutral” stance on the issues of statehood, it

nevertheless posses some limits as to the ways for achieving the external self-

determination (independent statehood). This means that international law prohibits the

use of force or threat thereof aiming at achieving a new territorial base to the detriment

of a given community, especially if the force has as a result the commission of a crimes

against humanity.'*'*

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Kosova/o, as one of the territorial entities of former Yugoslavia has its population and

territory in which the majority has always been Albanian (over 90 percent). State

structures that organized the independence referendum, though, lacked and still are

lacking the effective control over Kosova/o and its population. Ever since the former

Yugoslavia destroyed itself, Kosova/o did not play any part in terms of the above said

centrifugal forces. It has been treated as a matter of human rights violation and a crisis

that endangers the stability in the region." This fact, that is, continuous human rights

violations, according to some authors could well be a basis for Kosova/o’s right to self-

determination, meaning full independence.“**

There are scholars that, not rarely, equalize Kosova/o’s right to self-determination with

that of Serbs in Bosnia-Herzegovina and Croatia ( “the Republika Srpska” and former

“Krajinas” in Croatia that were destroyed by the Croat forces in 1995). In both cases,

there caimot be any similarity with Kosova/o for the following reasons: First, the gross

violation of human rights was a basis for self-determination on the eve of former

Yugoslavia’s break-up and during this process. Second, after its dissolution Serbs used

the common military and police force to achieve their national goals by ethnically

cleansing or occupying other territories and peoples, i.e., parts of Bosnia-Herzegovina,

Croatia and Kosova/o. The fact that former Yugoslavia ceased to exist and that Kosova/o

as well has been one of the elements of the crisis having its population and with clear

territorial base, should be serving as a basis for self-determination of Kosova/o and its

majority population.

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Unfortunately, the individual recognition of the FRY (Serbia and Montenegro) after the

Dayton peace Accords established a very bad precedent by legalizing to a certain extent

the use of force and ethnic cleansing as a means for achieving political goals. Since then,

the Kosova/o people and its leadership has showed a signs of serious disillusionment

regarding their peaceful way as a means to achieving the independent statehood.“*’ The

“outer wall of sanctions” remains the only hope that the international community would

not stay idly regarding the use of force as a means of achieving the right to self-

determination. On this issue we shall turn in the following chapter.

3. Failure of the London Conference and the Kosova/o issue

Among the Conference’s six Working Groups, there had been established the Working

Group on Ethnic and National Communities and Minorities in order to recommending the

initiatives for resolving ethnic questions in former Yugoslavia. A Special Group on

Kosova/o, as a former autonomous province, was set up.“** This Special Kosova/o

Working Group was chaired by Ambassador G. Ahrens.

During the Conference, setting up of the Kosova/o Special Working Group had been

fervently opposed by Milosevic on the basis that this was a Serbian internal matter. He

has afterwards been and still is hostile to any hint at internationalization of the issue. He

has never gone so far as to deny the ICFY’s right to be involved in Kosova/o, but he was

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distinctly unenthusiastic about any initiative Among the Kosovar Albanians there is a

strong belief that if it was not for the than Prime Minister of the FRY ( Serbia &

Montenegro ), Milan Panic, who had been chosen by the Serbs in order to mitigate the

consequences of the bad image resulting from Serbia’s aggression against Bosnia -

Herzegovina and Croatia, in the London Conference would have been a quite separate

Working Group on Kosova/o and not as it was done, that is, as a sub-group. These

feelings were shared with the author of these thesis by the Kosovar Albanians who

participated in the Conference, headed by Dr. Ibrahim Rugova himself

Anyway, Kosova/o Working Group met on several occasions with the Serbian authorities

and the Kosovar Albanian leadership. In fact, it met on six occasions between 30

September and early December 1992 during a time when Prime Minister Panic and some

others in the FRY (Serbia and Montenegro) Government were ready to consider serious

arrangements for Kososva/o’s autonomy. But, the Kosovar Albanian leadership never

accepted such an solution for Kosova/o based on a fact that Kosova/o has its right to self-

determination like the others in former Yugoslavia.^®

In 1993, the CSCE Mission in Prishtina was ordered out by Milosevic and the Working

Group’s aetivities came to a virtual standstill: The Kosova/o issue, though, from this time

onwards was raised by the ICFY’s co-chairmen directly with Milosevic, but his promises

of progress were never fulfilled^'

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The events in Bosnia-Herzegovina overshadowed Kosova/o issue and the setting up of

the Contact Group (1994) marked the formal collapse of the Conference altogether. Later,

though, after the Paris Peace Agreements were signed in line with the Dayton Accords, it

was decided that from the ICFY’s Working Groups survive only that regarding the

Succession Issues and the Working Group on Ethnic and National Communities and

Minorities.“ Formally, Kosova/o issue ever since remained aside of any international

attention, if not equalized with the Albanians in Western part of the FYROM. Yet, the

political activities over Kosova/o on international plane have been and still are highly

immense due to its potential destabilizing force in the region.“

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CHAPTER IV: THE PEACE PROCESS IN FULL SWING AND THE

KOSOVA/O ISSUE

1. Dayton Peace Accords and the Kosova/o Issue

It is certain that the Dayton Peace Accords represent the biggest ever success of

international diplomacy headed by the United States after the end of Cold War. It finally

ended three and a half years long war of aggression in Bosnia-Herzegovina and destroyed

the idea of Greater Serbia and Greater Croatia. Apart from this it showed that Euro-

Atlantic coordination, that is, its lack during the time the war lasted was a main cause of

the Bosniac tragedy and the West’s failure, especially as far as Europe is concerned.

Above all, the events following the signing of the Dayton Accords proved invariably the

falsity of the myth on the Serbian invincibility, or, to put it another way, it proved that it

had been a mere lie, if not the product of European decision-making centers to cover up

their reluctance to get heavily involved in the conflict. In the aftermath of the Dayton

Accords, they represented the most criticized endeavor in the scholarly work. The first

papers written in the months following the signature bear witness to this.'

International community’s primary interest in the region continues to be preventing any

outbreaks of violence. Some Western actions have been influential in this, in particular

the US President George Bush’s 1992 “ Christmas warning ” to Belgrade that the United

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States would not tolerate ethnic cleansing in Kosova/o. That warning has been repeated

by his successor, Bill Clinton, and underscored by a symbolic US military presence

in Macedonia, since 1993.^

The Kosovar Albanians exclusion from the peace process, that culminated with the

signing of the Dayton Agreements, left them with the feeling that they were being

punished for their strategy of non-violence, or, at least, taken for granted, while those

who started the wars in the former Yugoslavia are commanding respect and being

rewarded. And developments since the Dayton was signed - the apparent difficulties, if

not the failure, of the agreement to reverse the ethnic division of Bosnia-Herzegovina,

the international community’s apparent willingness to accept that result, and the speed

with which Western European countries have moved to upgrade ties with the FRY

(Serbia and Montenegro) - have only strengthened such feelings.^ The hopes raised by the

so-called “outer wall of sanctions” were soon dashed among the Kosovar Albanians as

Western European states moved at the beginning of 1996 to recognize Belgrade, starting

with France in February and followed by Britain, Austria, Germany, Sweden, Denmark,

Norway, the Netherlands, Portugal, Italy, and Finland. The European Union nonetheless

proved once again its complete lack of common foreign policy by being unable to make a

move as a whole.

With this Kosovar Albanians’ common perception in mind, after the Dayton there are

three approaches to the problem that are being considered by them:

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a) . There are those who realize that the clue to solving the problem remains in

Belgrade, and that negotiations to that end are inevitable and necessary;

b) . The view that they have nothing to except from the international community is also

gaining ground on the more radical side, which speaks of independence through the

armed struggle;

c) . The view of the shadow President of the Republic of Kosova/o, Dr.lbrahim Rugova,

who maintains his non-violent strategy of passive resistance by appealing to the world

community for independence on the basis of Albanian victimization/

To the first group belong mainly some non-influential individuals among the Kosovar

Albanians. The basic competition is between the second and the last streams within the

Kosovar Albanians independence movement. After February 1996, the second group has

been gaining in weight. Since then the clandestine Kosova Liberation Army (U^K)

entered the political scene bombing homes in which Krajina Serb refugees from Croatia

were settled. The group also claimed responsibility for shooting deaths of five Serbs (one

a policeman) in response to the 21 April 1996 killing of an Albanian student in Prishtina

(the capital of Kosova/o) by a Serbian civilian, as well as for many acts of violence that

have been occurring in Kosova/o ever since..

These outbreaks of violence by the Kosovar Albanians, that are still going on after seven

years of nonviolent resistance and that were deemed as very serious in the US

Department Statement after Ibrahim Rugova’s visit to the US in August 1996, show that

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some groups are setting their own strategy for breaking the deadlock between Kosovar

leaders and the Serbian government. The United States warned Ibrahim Rugova’s

Democratic Party of Kosova that it should distance itself from the violent actions of the

“Liberation Army of Kosova”, which is the sign that the Kosova/o issue is entering a

new, more dangerous, phase.^

2. The So-called Outer Wall of Sanctions and the Kosova/o Issue

In the USIA Wireless File of November 23,1995, released by the State Department, there

had been given a “Summary of the Dayton Peace Agreement”.*' This was the first time

that the concept of the “out^r wall of sanctions” had been made public in a written form.

In the above paper, it is written that : “ A resolution will be introduced in the UN

Security Council to lift the arms embargo against all of the states of the former

Yugoslavia. Trade sanctions against Serbia will be suspended, but may be reimposed if

Serbia or any other Serb authorities fail significantly to meet their obligations under the

peace agreement. An “outer wall” of sanctions will remain in place until Serbia addresses

a number of other areas of concern, including Kosovo and cooperation with the War

Crimes Tribunal...”.

The UN Security Council, accordingly, first suspended and later lifted totally trade

sanctions against the FRY (Serbia and Montenegro) with its resolutions Nos. 1022 of 22

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The content of the “outer wall” of sanctions” affect first and foremost the membership in

international organizations and bodies and the access to international financial institutions

- a key source of assistance for reconstruction and that primary the International

Monetary Found (IMF) and World Bank (WB). Although the issue of membership in

international organizations and bodies and that of access to international financial

organizations of the FRY (Serbia and Montenegro) has been reformulated in political

terms as the “outer wall of sanctions”, its basic origins lie on the legal documents

rendered at the time the former Yugoslav crisis began, starting from the Badinter

Commission’s opinions and the others after it. The conditions, though, to be fulfilled by

the FRY (Serbia and Montenegro) with a view to getting the membership and access in

the above-mentioned international structures are of a pure political nature and have been

serving as a means to force Serbia-Montenegro to comply with the standards of

international behavior.

November 1995 and 1047 of 1 October 1996 respectively.’

In the following lines we shall discuss the international-legal and political documents that

represent the foundations of the concept “outer wall” of sanctions, that is, opinions No. 8,

10 and 11 of the Badinter’s Commission; the UN Security Resolution No. 777 (1992);

and, finally, the UN General Assembly Resolution No. 47/1 (1992). Based on these

documents, the IMF and WB respectively have passed the appropriate documents, which

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altogether represent the encircelement of the political and legal basis of the international

concept: “outer wall” of sanctions.

On 18 May 1992 the Arbitration Commission was asked by the then Chairman of the

Conference on Yugoslavia as to whether the process of dissolution, as outlined in the

already discussed opinion No.l., could be regarded as completed. It was noted, as we

discussed earlier, that a referendum held in Bosnia-Herzegovina during February and

March 1992 had produced a majority in favor of independence and that Serbia and

Montenegro established “ a new state, the Federal Republic of Yugoslavia”, adopting a

new constitution on 27 April 1992. It was further emphasized that the territory and

population of the former Socialist Federal Republic of Yugoslavia (SFRY) were under

the sovereign authority of the new States and that the common federal bodies of the

SFRY no longer functioned. In addition, the Commission noted that Bosnia-Herzegovina,

Croatia and Slovenia had been recognized not only by each other but also by all member

States of the European Community (EC/EU) and other individual States and that were

admitted to the membership of the United Nations on 22 May 1992. The Commission

also took account of the Security Council resolution No.757 of 30 May 1992 which

referred, for the first time, to the “former SFR Yugoslavia” and emphasized that “the

claim by the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue

automatically the membership of the former Socialist Federal Republic of Yugoslavia in

the United Nations has not been generally accepted ” . At the end, the Arbitration

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Commission (Committee) then concluded that “the process of dissolution of the SFR of

Yugoslavia referred to in Opinion No.l of 29 November 1991 is now complete and that

the SFR of Yugoslavia no longer exists.*

On 4 July 1992, the Commission produced Opinion No. 10 in which it responded

directly to the question posed by Lord Carrington, the Chairman of the Conference on

Yugoslavia, as to whether the Federal Republic of Yugoslavia (Serbia and Montenegro)

was “ a new state calling for recognition”. It was noted that the FRY (Serbia and

Montenegro) constituted a new State and not the sole successor to the SFR of Yugoslavia

which meant that FRY (Serbia and Montenegro) “does not ipso facto enjoy the

recognition enjoyed by the SFR of Yugoslavia under completely different circumstances.

It is therefore for other states, where appropriate, to recognize the new State”. Such

recognition by member States of the European Community would be subject to its

compliance with the conditions laid down by general international law and by the Joint

Statement and the Guidelines of 16 December 1991, ended the Commission (Committee).

On 19 September 1992, the Security Council of the UN adopted a resolution No.777

(1992) in which it was noted that “the State formerly known as the Socialist Federal

Republic of Yugoslavia has ceased to exist” and 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”. It, therefore,

recommended to the General Assembly that it decided that the Federal Republic of

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Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations,

and that it should not participate in the work of the General Assembly. Having received

that recommendation, the General Assembly adopted resolution 47/1 in which it noted

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

Finally, on 15 December 1992, the International Monetary Fund announced that it “found

that Yugoslavia has ceased to exist and has therefore ceased to be a member of the

IMF”, 10 while on 25 February 1993 the executive directors of the World Bank made a

determination that Yugoslavia had ceased to exist." The latter decisions were a logical

consequence of the previous ones, that is, the consequence of the fact that non-member

States of the UN cannot enjoy the membership in the IMF and the World Bank

The documents taken altogether have had a direct implications for the FRY’s (Serbia and

Montenegro) membership in other international organizations and bodies, like is the case

with its membership in the OSCE.'^ State practice as well has not supported at all the

claim by FRY (Serbia and Montenegro) that it should be the continuation of the SFR of

Yugoslavia (former Yugoslavia).The claim has also been rejected fervently by other

successor States to the former Yugoslavia, that is, by former Yugoslav republics, now

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independent and sovereign States. 13

The “outer wall of sanctions”, that is, the membership in international organizations and

the financial and other assistance from the IMF and World Bank on behalf of the FRY

(Serbia and Montenegro), translated in concrete terms means that is should fulfill the

same conditions as did the other successor States to the former Yugoslavia, as laid down

in the EC’s (EU’s) Guidelines of 16 December 1991. In the context of Kosova/o issue, it

is usually argued that the “outer wall of sanctions” is to be lifted if there were a

“substantial progress for the solution of the question of Kosvoa/o”. The point under

discussion comprises the following issues:

- immediate permission of the OSCE Monitoring Mission to return to Kosova/o;

- establishment of all democratic institutions in Kosova/o;

- putting an end with concrete effect to ferocious repression all over the country;

- starting concrete negotiations between Belgrade and Prishtina for the solution of the

political status of Kosova/o.

Regarding the latter, there have so far been even concrete proposals, especially intensified

during the 1996 EU’s activities, in which it was said that the “ granting of a wider

autonomy for Kosova/o within FRY (Serbia and Montenegro)” may be a right step in a

right direction. The recent EU Council of Ministers meeting, held on 16 September 1997,

though, does not contains such an proposal, so does not the US last year statement

following Rugova’s visit in Washington.'''

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It should be noted that the only real impact of the “outer wall of sanctions” has so far

been the signing up of the “ Education Agreement ” by Milosevic and Rugova on 1

September 1996. Yet its implementation has as yet been obstructed by the

Serbian side. The next impact of the “outer wall of sanctions” has been the starting of

some sort of informal dialogue in March and June of 1996 between the Albanian

political parties and the Serbian opposition, held in New York (USA) and Ul?in

(Montenegro) respectively ' In these, say dialogues, there had been reached a wide

consensus only as far as the way for solving the Kosova/o issue is concerned, that is, the

peaceful way through continuous negotiations. But, since they were boycotted by the

ruling Socialist Party of Serbia, there could not be achieved any tangible result and any

progress whatsoever.

3. Reintegration or Integration of the Federal Republic of Yugoslavia (Serbia and

Montenegro)

Apart from international organizations and other bodies within the UN system, most

notably the IMF and the World Bank, the FRY (Serbia and Montenegro) has also been

excluded from the other regional organizations and initiatives, one of the most important

being the OSCE.

There are no general legal rules on state succession in respect of membership in

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international organizations. The rules concerning acquisition of membership laid down in

the statutes and other relevant rules of each organization are paramount.'* Based on this

and on the above-mentioned resolutions of the UN Security Council and of General

Assembly, most of the international organizations and other bodies within the UN system

denied the FRY’s (Serbia and Montenegro) claim for continuity of the former

Yugoslavia’s membership in these structures”

Since the continuity of membership in international organizations is heavily dependent

on the internal rules (statutes) of these organizations, the FRY (Serbia and Montenegro)

had all the time insisted on its continuity with former Yugoslavia regarding the latter’s

membership in the international organizations. This situation caused a considerable

confusion within the UN system. The fact was further complicated on 29 September 1992

after the Legal Council of the UN delivered an open legal opinion setting out the UN

Secretariat’s interpretation of the impact of the UN General Assembly Rez. No.47/1 of 22

September 1992, the latter being already discussed by us. This legal opinion of the Legal

Council was in favor of the FRY’s (Serbia and Montenegro) stance that it could continue

the former Yugoslavia’s membership in the UN and its bodies, that is, that there should

be only reintegration of the FRY (Serbia and Montenegro) and that there is no sense

speaking of its first time-type of integration into these organisms and bodies.

In view of this situation, the UN General Assembly adopted a further resolution No.48/88

on 29 December 1992, operative paragraph 19 of which "... reaffirms its resolution 47/1

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of 22 December 1992, and urges Member States and the UN Secretariat in fulfilling the

spirit of that resolution, to end the de facto working status of Serbia and Montenegro”.'®

This situation lasted well until after the Dayton Agreement was reached (1995). Since

then, there have started a process of a reintegration of the FRY ( Serbia and Montenegro

) in all specialized agencies and other bodies within the UN system, save the General

Assembly, IMF and the World Bank. This practice has also been followed on the regional

plane, save the case of the OSCE to which FRY (Serbia and Montenegro) should apply

for a new membership, that is, for its first time integration instead of the reintegration.

This practice can be explained with the political nature of the issue of membership in the

UN, IMF, World Bank and the OSCE, that is, that FRY (Serbia and Montenegro) as one

of the successor States to the former Yugoslavia must fulfill the same criteria for the

admission in these structures as did the other new States emerged from the former

Yugoslavia, and not merely be reintegrated within them. Now we shall discuss the highly

controversial issue of the OSCE’s membership of FRY (Serbia and Montenegro), for it is

in this body that there could be clearly seen a tendency for the reintegration rather than

integration under the disguise that if RFY had from the outset been its full member, there

would have been a more cooperativity regarding all issues, including the permission to

work of the OSCE Monitoring Mission for Kosovo, Sandjak and Vojvodina. Or, to put it

another way, the representatives of FRY (Serbia and Montenegro) have for a long time

been claiming that there cannot be a cooperation with a country suspended from the right

to participate in the work of a body that deals with its internal affairs, hence RFY’s

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(Serbia and Montenegro) membership should be renewed.

In fact, there is some truth in this stance due to the very nature of the OSCE and the

history of former Yugoslavia’s suspension (exclusion) from its work in 1992. At this

point it is difficult to say whether FRY ( Serbia and Montenegro ) will return to the

OSCE or apply fro a new membership. In the first case, it would imply recognition of its

continuity under international law with that of former Yugoslavia, while in the second it

would be considered as an admission of a new member - a stance advocated by the whole

international community and other former Yugoslavia’s republics. The second solution

finds its support only in the fact that the OSCE is based on political commitments of

member states rather than on a traditional international agreement, like is the case with

the UN, as well as in the fact that professional and diplomatic circles explain the absence

of FRY (Serbia and Montenegro) from the OSCE as a suspension. It should be noted,

though, that this runs counter to the very idea of the “suspension formulae’’ as it was

applied in the case of former Yugoslavia.

The decision to prevent the FRY (Serbia and Montenegro) from participating at the

CSCE (OSCE) meetings was passed by the Committee of Senior Officials on 8 July

1992, referring to the assessments in the declaration of this body of 12 and 20 May of the

same year. In these declarations “the Belgrade authorities and YPA (Yugoslav People’s

Army)” had been charged of “aggression on Bosnia and Herzegovina”. The decision on

suspension was made for a period of three months and its withdrawal was made

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conditional on the respect of main CSCE (OSCE) principles and cooperation with the

Permanent Mission for Kosovo, Sandjak and Vojvodina, whose establishment was

indicated at that point. The CSCE (OSCE) took the stand that in deciding on the future

position of Yugoslavia it would take into consideration the discussion about the status of

FRY (Serbia and Montenegro) in the UN and on official stand of the EC Arbitration

Commission (Badinter Commission).'^

The balance of power within the OSCE, continuation of war in Bosnia-Herzegovina and

FRY’s (Serbia and Montenegro) heavily involvement on it, unsettled status of FRY

(Serbia and Montenegro) in the UN, that is, the non-acceptance of its State-continuity

with that of former Yugoslavia caused the automatic continuation of suspension although

a Memorandum of Understanding was signed between the OSCE and the FRY (Serbia

and Montenegro) Government on 28 October 1992, which regulated the operation of the

Permanent CSCE (OSCE) Mission for Kosova, Sandjak and Vojvodina. The mandate of

that mission was extended once again, but since the suspension had not been lifted, FRY

(Serbia and Montenegro) Government declined further hospitality to the Mission on 28

June 1993.

The meeting of the CSCE Council, held in Stockholm in December 1992, repeated that

leaders of Serbia and Montenegro and Serbian forces active in Bosnia-Herzegovina bear

the greatest responsibility for the conflict in the territory of former Yugoslavia. Ministers

of the OSCE participating States informed the Yugoslav leaders that only “radical

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changes of their policy toward the neighbors and their own people and real cooperation in

the peace process will gradually return the country into international community”.·“ The

next OSCE meeting (Rome, December 1993) advocated “urgent and unconditional”

return of the Permanent Mission for Kosovo, Sandjak and Vojvodina, as well as resuming

of negotiations about the future status of Kosovo. Ministers reiterated that the decisive

condition for participation of the FRY (Serbia and Montenegro) in the CSCE work is

acceptance of its “principles, obligations and decisions”. ' The Budapest Summit a year

later, in which participated along side with Albanian delegation the author of these lines,

failed to reach consensus over the issue referring to the former Yugoslav crisis due to the

confronting views of the Russian Federation and Western countries

Signing of the Dayton Agreements (1995) and lifting of the UN sanctions against RFY

(Serbia and Montenegro) in early October 1996 opened the way for its

integration/reintegration to the OSCE. During 1996 began diplomatic contacts within

which the delegation of the OSCE Parliamentary Assembly and the OSCE Chairman

visited Belgrade, while in December of that year the OSCE was invited to send a mission

that would investigate the facts relating to the local elections in Serbia.

Despite all these raproachments in FRY’s (Serbia and Montenegro) relations with the

OSCE, it seems unlikely that there would be any sort of reintegration of the FRY (Serbia

and Montenegro) in the OSCE notwithstanding the latter’s political nature. The

reintegration of the FRY ( Serbia and Montenegro) , rather than its integration as a new

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member, would mean accepting as a full member a State which is not as yet the UN’s

member. The FRY’s (Serbia and Montenegro) membership in the UN is and should be a

precondition for the membership in the OSCE and other European and Euro-Atlantic

structures, such as the Council of Europe, the European Union, NATO or its program

Partnership for Peace. There is not and should not be any reason for non-applying the

same criteria and pursuing the same path as it was done in with other former Yugoslav

republics. In the contrary, it would be additional argument to the view that only arms and

aggressors count in today’s international community.

4. New Yugoslavia (Serbia and Montenegro) : Continuity or Break with Former

SFR of Yugoslavia ?!

From the time former Yugoslavia was created and internationally recognized after the

First World War, up to its dissolution after the end of Cold War, the main issue had been

that of its State continuity with the Kingdom of Serbia, the view fervently supported by

Serbs. The reason behind this has been and still is Serbia’s intention to keep the

international legal title to rule the others under the disguise of “Yugoslavia”, especially

Albanian inhabited lands it occupied and annexed after the Balkan Wars (1912-13). This

hegemony mind-set of Serbia could be clearly seen in the reasoning of the then Prime

Minister of Serbia, Nikola Pasic.

In fact, Pasic denied the understanding of many of Serbia’s wartime allies that victory

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had created a new state, “Yugoslavia”. Belgrade preferred to see the “Serb-Croat-Slovene

Kingdom” as merely a natural extension of the Kingdom of Serbia, requiring no new

foundation in international law of the time. This theory of “continuity” between Serbia

and Yugoslavia was to bedevil the Kingdom, since it raised and settled the acute issue of

whether the non-Serbs were to be treated as equals with the Serbs or just as “little

brothers” (In 1917, Pasic had told the non-Serb proponents of “Yugoslavia” that the King

would always have to be Orthodox by religion). In the case of Kosova/o and Macedonia,

though, Pasic argued that they were integrated into the Kingdom before 1914 and

therefore cannot be affected by the Paris Settlement on minority rights, based exactly on

the same Serbian “continuity” logic^^

We refer here to as “Yugoslavia” in terms of international law, for in this respect it is

irrelevant the form of its internal organization, that is, whether it was a kingdom or a

socialist federation until it destroyed itself in 1991-92. '' This clarification was needed

since the Serbian logic of “continuity” has been present all the time the former

Yugoslavia existed, and it is still the same situation, although there is an excellent

doctoral dissertation written by a Serb, Dr. Stevan Djordjevic, entitled “O kontinuitetu

drzava s posebnim osvrtom na medjunarodno-pravni kontinuitet Kraljenvine Jugoslavie i

Federativne Republike Jugoslavije (Beograd, 1967).^ In this dissertation, the author has

conclusively argued in favor of State continuity of the pre-War Yugoslavia with that of

post-War, on the one side, and of the State discontinuity of the Kingdom of Serbia with

that of former Yugoslavia ( be it a kingdom or the Socialist Federation after the Second

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World War).

The logic of “continuity”, as noted, has been pursued by Serbia well after the former

Yugoslavia’s dissolution (1991-92). * This conclusion can be derived from the present

behavior of the FRY (Serbia and Montenegro) on internal and international stage, or

from the recent years’ scholarly work published in Serbia itself.^’ The international

community, as we have seen so far in this thesis, has not accepted such an reasoning of

Serbia. In this is included a firm rejection by former Yugoslavia’s republics as well. The

foreign scholarly work is not any different, save the one author who has supported

Serbia’s reasoning on “ State continuity”. *

If the international community had accepted Serbia’s stance on “State continuity”, it

would have had a large-scale negative political implications. It would have meant that the

others were the secessionists so that FRY (Serbia and Montenegro) would have had a

legitimate right to preserve the territorial integrity and political independence of former

Yugoslavia; Serbs in Bosnia-Herzegovina and Croatia would have been considered as

protectors of that legitimate right and Serbia not as an aggressor State; the rights and

duties of the former Yugoslavia would have been redefined according to Serbia’s

vagaries; etc. In sum, in that case Serbia would have controlled the complete application

of the others right to self-determination with all its implications, the rights and duties the

practical implementation involves by itself, something similar she has been doing in the

case of Kosova/o.

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5. Importance and the Effects According to International Law of the so-called the

“Agreements on Normalization of Relations” or of the Other Similar Documents

Concluded Between the FRY (Serbia and Montenegro) and Macedonia, Croatia and

Bosnia-Herzegovina respectively (April-October 1996)

In the first article of the Framework of the Agreement on Peace in Bosnia signed in Paris

on 14 December 1995, it has been foreseen that The Partners shall particularly respect

in full the sovereign equality of each of them, settle conflicts peacefully and refrain from

any act, either by way of threat, use of force or in any other way, against territorial

integrity and political independence of Bosnia-Herzegovina and other State."' In the last

article of the document, the RFY ( Serbia and Montenegro ) and Bosnia -

Herzegovina recognized each other mutually as independent sovereign states within

their international borders.

Above paragraphs, taken together with the Dayton Agreements, are in full line with the

stance of international community regarding the subjects within the former Yugoslavia

entitled to international sovereign statehood, the issue we already discussed in previous

chapters. But, the contentious issue has until recently been that of Serbia’s insistence that

it is the only successor to the former Yugoslavia, while the others are the secessionists.

This logic of reasoning in FRY (Serbia and Montenegro) is based on the example of the

Russian Federation and its continuity with former Soviet Union, quite a different

example both in its formal and real (substantial) terms.^°

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After loosing the wars in Bosnia and Croatia and the signing of the Dayton Accords,

Serbia hoped that it could achieve post festum a sort of “Alma Atta” agreements with the

others, although the signing of the Dayton Accords was a clear sign that there will be no

State continuity with former Yugoslavia on behalf of any of former republics. The

Dayton Peace Accords’ stipulation that there should be a formal mutual recognition

between former Yugoslavia’s republics, a stance as well endorsed by the EU’s Ministerial

meeting held in February of 1996, mirrored Serbia’s desire and intention to lobby in order

to attract some support in favor of its State-continuity with former Yugoslavia. To this

effect, she concluded two agreements, with Macedonia and Croatia respectively, and

issued one Joint Statement with Bosnia-Herzegovina.^'

In these documents, there are two important issues that clearly speak about Serbia’s

intentions to achieve some support in favor of it state continuity with former

Yugoslavia, with all the consequences such an act could have for the others, a matter

discussed earlier. The first issue regards the naming itself of the documents, that is, the

“Agreements on Normalization of Relations”, concluded between FRY (Serbia and

Montenegro) and Macedonia and Croatia respectively. The headings of these documents

leave an impression as if there had only been a sort of derail in relations between the

respective States and the signing of the documents was meant to put them on track again,

which is not the case. The opposite is true instead. Rather, they represent the documents

which established the diplomatic relations, for the first time in their respective history,

after a long wars ignited and conducted by Serbia and Montenegro and made possible

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only after a defeat of the plans of Greater Serbia. They have been and still remain the

documents that were to be signed in full compliance of the Paris Peace Agreement, but

that have no validity according to international law in a sense Serbia wants to, due to the

fact that one of the signatories, FRY (Serbia and Montenegro) is not, or, has not been the

UN member at the time they were signed, hence they cannot be deposited with the UN

Secretary General as it is a rule with other international agreements. The same fate shares

the Joint Statement made by the Presidents of Bosnia-Herzegovina and Serbia, Alija

Izetbegovic and Slobodan Milosevic respectively upon the initiative of the President

Jacques Chirac of France. Its content is the same as in the above mentioned agreements.

Or, to put it another way, they all represent political documents rather than legally

binding ones as they are understood in the positive international law.

Second issue, which conclusively confirms the political nature of these documents

relates to the matters of State continuity. The articles 4 and 6 of the Agreements and

Article 4 of the Joint Statement contain the provisions according to which the Macedonia,

Croatia and Bosnia - Herzegovina respectively accept or take cognizance of the State

continuity of Federal Republic of Yugoslavia (Serbia and Montenegro) with that of

former Yugoslavia, and vice versa. This formulation has been interpreted in Serbia itself

as a crown evidence that it has to do with its State continuity with that of former

Yugoslavia’s. This is a matter of principle for FRY (Serbia and Montenegro) in the

desperate need to gather as much a wide support and understanding as it can, not only

from former Yugoslavia’s republics, but also from the world publ ic .This stance of

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Serbia has been and still is being strongly rejected not only by most of the international

community, but also by other former Yugoslav republics, now independent and sovereign

States, as noted already ”

The Agreements and the Joint Statement start from the assumption of the historical fact

that Serbia and Montenegro existed in the form of independent States before the creation

of the former Yugoslavia in 1918, and they entered in that state as international legal

subjects.Based on this,Bosnia-Herzegovina, Croatia and Macedonia have registered the

mere fact of the State continuity of the Federal Republic of Yugoslavia (Serbia and

Montenegro). Yet, this does not mean, in any sense, and cannot mean the recognition of

the sameness of former SFR of Yugoslavia with FRY (Serbia and Montenegro). All states

that have so far been created upon the dissolution of former Yugoslavia have equal

rights in its succession, including the issue of State continuity. FRY (Serbia and

Montenegro) cannot automatically acquire the continuity of former Yugoslavia, neither

its membership in international organizations nor international agreements. The opposite

view would run counter to the will of most of today’s international community, as

already seen, including former Yugoslav republics.^“

6. Is the Autonomous Status Viable and Acceptable Option for Solving the Kosova/o

Issue

How and in which way will it be possible to arrive at a generally acceptable solution to

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the Kosova/o problem, not only presents a key issue of the Balkans, but of Europe as

well. Many of the options and suggestions tabled so far, for which we shall discuss in the

following, are linked with FRY (Serbia and Montenegro). This attitude has its roots in the

stance of international community as expressed during former Yugoslavia’s dissolution

and after it. This stance of international community, as earlier seen, to certain extent

equalizes the Kosova/o issue and the status of the Kosovar Albanians with that of the

“Republika Srpska” and Serbian people in Bosnia -Herzegovina, which is an unjust

approach and a big insult for the Kosovar Albanians and its leadership due to their

peaceful way pursued so far with the view of realizing the right to self-determination,

meaning independent statehood.

Anyway, this is the present state of affairs regarding the status of Kosova/o and its

majority population. In this context, there have been some various forms of autonomy,

short of sovereign statehood, suggested for solving the Kosova/o issue.^^

The first form is granting the autonomy for Kosova/o as in 1974. This is a proposal that is

most frequently mentioned in circles of the international community, that is, of its most

powerful members.^*^

The second form has to do with the refederalisation of the FRY (Serbia and

Montenegro).This means a supplemental or new federalization of the FRY (Serbia and

Montenegro) making Kosova/o, in addition to Serbia and Montenegro, a separate federal

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unit - that is, a third republic. This is exactly what the Kosovar Albanians had demanded

in the demonstrations of 1981, but which now, since the dissolution of former

Yugoslavia, is generally considered as an obsolete requirement. On the Serbian side, this

option has been supported by the so-called Serbian Resistance Movement of Kosova/o

led by Momcilo Trajkovic, a former communist leader of Kosova.”

In this paper we do not discuss other sub-forms either of the first group ( “ 1974

Autonomy - Minus ” or “ 1974 Autonomy - Plus ” ) or the second one ( a proposal for

an asymmetrical federation,- the case of Adem Dema9 i’s (leader of the Kosova/o’s

Parliamentary Party) so-called “Balkania Confederation”-, or, the various proposals for

the regionalization of FRY (Serbia and Montenegro).^* It is enough to note that in all

these suggestions the FRY (Serbia and Montenegro) is a reference point within which to

settle the Kosova/o issue. The stance is allegedly conditioned by the security concerns

for the regional and wider stability.

From the Kosovar Albanian standpoint, though, it is unacceptable any solution that is

short of independent statehood, while security reasons for regional and wider stability, on

which international community has so far played in its efforts to make the Kosovar

Albanians accept that sort of solution within RFY (Serbia and Montenegro), are being

turned against the same international community since the Kosovar Albanians have been

realizing that if their independence poses a threat to the region and thus should accept that

status, which they rightly consider as a continuation of their slavery, than why not trying,

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if victims anyway, to show to the international community the both sides of a threat to the

region’s and wider peaee and stability. The emergence of the “Kosova Liberation Army”

in the Kosova/o political life at the beginning of 1996 and its widespread support among

the Kosovar Albanians, especially the youths, is a witness to the above-said reasoning in

Kosova/o that has been gradually crystallizing.^®

The next reason why the autonomy status, or any similar thereof, is not aceeptable for the

solution of the Kosova/o issue has to do with the history of the former Yugoslavia itself

In fact, as we have seen in the previous chapters, Albanians in that state entered not by

their will but by the force of arms in 1918, after being oeeupied during the Balkan wars

(1912-13). All the time they were treated as a second-elass citizens, even after granting of

the autonomy status in 1974. This status did not by far mateh the Kosovar Albanian real

needs and wishes and was imposed on them according to the communist theory and

practice of “solving the national question”. Yet, the balanee of power within the former

Yugoslavia offered some space for Kosova/o’s eeonomic and eultural development and

political maneuvering, thus allying with the others to counteract Serbia’s hegemony

actions against Kosova/o.

Now, after the former Yugoslavia destroyed itself and the Kosovar Albanians have

continuously been experiencing the most brutal repression and terror, it sounds as

hypocritical and cynizm to speak of “confidence building measures” to bridge the gap

between the Kosovar Albanians and Serbia, especially after Slobodan Milosevic ’ s

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election as a President of the FRY (Serbia and Montenegro) in July 1997. The opposition

in Serbia does not differ from the ruling Socialist Party of Slobodan Milosevic either. The

last Presidential and Parliamentary elections in Serbia, held on September 1997 and

boycotted by the Kosovar Albanians, demonstrated that for Serbia to be “democratized”

via Kosova/o and the “confidence building measures” to work as a step by step strategy

for solving the issue, it is needed that Kosova/o’s electorate be more than million and a

half

From the ethnic standpoint, the Albanians in former Yugoslavia as a third biggest nation

had nothing in common with the South Slavs. If they could not live together in a State

they themselves formed, why there should be a pressure on the Kosovar Albanians to be

under Serbia’s hegemony and yoke.

What then remains to be done for solving the Kosova/o issue? First and foremost, its is

important that international community really evaluates the dangers of the Kosova/o issue

while pending unresolved. It goes without saying that there is no reason to pressure the

victims, in this case the Kosovar Albanians, to accept a solution that proved

ineffective in the past. Instead, it should encourage the peaceful way of the Kosovar

Albanian leadership in its way to implementing the right to self-determination. Non­

lifting of the “outer wall of sanctions” is one of the means, though not too much effective

so far, for this encouragement. If Serbia’s leadership proves as intransigent as it did in the

case of the others at the beginning of the crisis in former Yugoslavia, the “stick” named

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the international recognition of Kosova/o’s independent statehood seems a better solution

for regional and wider stability than any further pressure for the status of autonomy,

which in a long run can only prolong solving of the issue properly.

7. Possible Collective Recognition of the FRY (Serbia and Montenegro) by the UN

and Its Impact on the Kosova/o Issue

As we have so far seen, at the beginning of 1996 some of the Western European countries

moved to upgrade the ties with the RFY (Serbia and Montenegro) in compliance with the

Dayton Peace Agreement and as a gesture of a good will towards FRY (Serbia and

Montenegro), that is, as a reward for the latter’s contribution in the peace process. This

was also a part of the relevant UN documents mentioned earlier in this paper regarding

RFY’s ( Serbia and Montenegro ) treatment as a new state if it fulfilled the same

conditions for recognition as did other former Yugoslav republics.

This step, though, as noted, has been interpreted by the Kosovar Albanians as something

dubious, that is, as a policy of rewarding the aggression for the crimes committed in

the territory of former Yugoslavia and as punishing the victims even further. After the

Dayton is reached and the individual recognition has been granted by most of

international community’s members, save the United States,“*® what remains is the lifting

of the “outer wall of sanctions’’, that is, granting to FRY (Serbia and Montenegro) a

collective recognition by the UN, most probably upon the request of the former asking for

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a new membership in the UN, as it was the case with former Yugoslav republics

(integration and not the reintegration). This would mean that FRY (Serbia and

Montenegro) has to fulfill the same conditions as did other former Yugoslav republics. In

addition, as already noted, it should fulfill some extra conditions that are the result of

FRY’s (Serbia and Montenegro) behavior during the time the war was going on in

Bosnia-Herzegovina, Croatia and including as well its repressive policies in

Kosova/o.The first set of conditions is related mainly to the territory of Bosnia-

Herzegovina and Croatia, that is, to the issue of the war crimes committed in these

countries, while the second set refers to the rule of law, democracy, respect for human

rights and the rights of minorities, including the solving of the Kosova/o issue.'" The way

to solving the Kosova/o issue can be through solving some of its acute problems

(education, health care etc.) by initiating and strengthening of the so-called confidence

building measures, as it is being recently preached by most of the international

community , or by directly insisting on solving the status of Kosova/o itself, a stance

preached before and after the Dayton.42 Both cases are comprised in the notion “outer

wall of sanctions” that has already been under the discussion.

If the UN decides to lift the “outer wall of sanctions”, that is, the UN security Council

proposes to the General Assembly the admission of RFY (Serbia and Montenegro) to the

UN, taking into consideration only the UN Charter provisions that a State to be admitted

must be a pace-loving and as the witness thereof would serve the Dayton’s signing,

without taking into account the plight of Kosova/o’s majority population and their right

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to self-determination, than it would be a big blow to the principles of peace and

justice.This,in turn,may push the Kosovar Albanians into unpredictable adventures, since

their status within FRY (Serbia and Montenegro) as a national minority, although by far

larger then Montenegrins and in a State where more than 30 per cent of it are not South

Slavs, would put them back into the 1918, or in 1987. In fact, it will be fulfilled the

speculation that everything started in Kosova/o and it is there it will finish. This can be

prevented by international community, or, it may be that the lessons learnt from the past

events in former Yugoslavia have not been on purpose read properly.

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CHAPTER V: CONCLUSION

1. The origins of Yugoslavia’s break-up lies in the very act of its creation in 1918 as well

as in the way it was ran all the time until the dissolution (1992). The act of its formation

in 1918 has been arbitrary one and contrary to the liberal concepts and ideals of its

northern parts (Slovenia and Croatia). The rest of its part in the South and Center had

quite different views on the State, that is, being dominated by Serbia they cultivated an

integralist-unitarist view of on the common state, while Slovenes and Croats nourished

hopes for an (con) federal-type of its political and state apparatus.

Besides this, the others that were not defined as its constituent nations, that is, all but

Slovenes, Croats and Serbs were treated as second-class citizens, while some non-Slavic

populations were not regarded even as minorities. This was the case with Albanians.

Kosova/o and Albanians as a whole were the most discriminated in the pre-War

Yugoslavia.

After the War, though, Albanians were recognized as nationality (minority) and Kosova/o

was granted a status of “political and territorial” autonomy within the Federal Serbia.

This administrative-constitutional status of Kosova/o had as its aim the very denial of the

existence of the Albanian nation within that state. The “political-territorial” autonomy of

Kosova/o widened markedly in 1974, when it was granted all prerogatives of the

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republic, although without being raised to the full republican status as the others. It

offered to Kosova/o and Albanians a wide range of political, social, economic and

cultural rights and opportunities for their further development. It also gave a chance for

Kosova/o and its majority population to be a part of balance-of-power game within

former Yugoslavia, yet always sacrificed by the Slavic republics of former Yugoslavia.

The autonomy was abolished in 1989, after Milosevic came to power in the nationalistic

euphoria raised by him in Serbia of the 1980s.

After Milosevic abolished Kosova/o’s autonomy in 1989, there started a new offensive

against the north, that is, against Slovenia and Croatia that eventually ended in its central

part by the mid of 1992 (aggression in Bosnia-Herzegovina). At the outset, other former

Yugoslavia’s republics were for its transformation into a loose (con) federation, a stance

opposed by Serbia. The latter endorsed only a centralist-type Yugoslavia ( Spring 1991).

When these talks failed, Serbia continued its policies with violent means, that is, by

conducting the war against those opposing it. This policy had been prepared by Serbia

immediately after Tito’s death. Inertive response of international community towards

Serbia’s aims offered Milosevic a wide opportunity to attack one by one other republics,

first Slovenia, than Croatia and,most disastrously, Bosnia-Herzegovina. Initial response

of international community was to weak and the than EC Conference on Yugoslavia

proved to be as illusory as that held in London in 1992. It would take three years and a

half of the war of destruction. It stopped, though, only after a strong and coordinated

diplomatic and military action of the Western countries against Serbia the Dayton Peace

.. -94-

of 1995). Anyway, it should be admitted that international community by setting up its

criteria for solving the crisis, gave clear signals to Serbs that it would not allow any

legalization of their policy of ethnic cleansing and genocide as a means of achieving the

political goals, that is, the creation of Greater Serbia. The so-called “Guidelines on

Recognition of New States in Eastern Europe and the Soviet Union” (EU, 16 December

1991) are the comer stone in preventing these obscure efforts of Serbia and Milosevic.

These Guidelines offered a reference point for the Western countries regarding the

recognition of independent statehood of the new state-type entities. Yet, they did not

recognize new changes in borders that were as a result of the uses of force, as it was the

case with the so-called “Republika Srpska Krajina” (Croatia) and “Republika Srpska”

(Bosnia-Herzegovina). The bad fact is that they equalized the case of these entities with

that of Kosova/o and its majority population. In Kosova/o, after the dissolution of

Yugoslavia started, its majority population and the states structures (Kosova/o’s

Assembly and the Government) declared Kosova/o as a republic on par with the others in

former Yugoslavia (Declaration of 2 July 1990 and the Constitution of September 1990

respectively). Based on these acts, Kosova/o held its referendum on independence in

September 1991 and asked for international recognition of its independent statehood. The

request of Kosova/o, submitted on 20 December 1991, was not met with positively by the

than EC Conference on Yugoslavia, most probably due to its government’s lack of

effective control over the territory and majority population. This is why there can be no

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comparison with the Kosova/o case and that of Serbian entities created violently in

Croatia and Bosnia-Herzegovina by ethnically cleansing all the non-Serbs. Kosova/o’s

leadership peaceful way to achieve its political goals can in no way be compared with the

above cases. Besides this, Kosova/o had its defined territory and population at the time of

dissolution of former Yugoslavia, but the security reasons mattered too much for its non­

recognition as an independent State.

2. After the collapse of the Hague Conference on Yugoslavia as a result of the events on

the ground (aggression against Bosnia-Herzegovina and the intensification of the war in

Croatia), international community involved itself in the crisis more deeper than before.

To this effect, it convened in London the International Conference on Former Yugoslavia

(ICFY, August, 1992), which was meant to be binding on the parties. Yet it also ended in

failure as a result of the West’s reluctance to tackle the crisis seriously and prevent the

Serbian aggression. It preserved the same basic principles as the Hague Conference (non­

use of force as a means of achieving political gains, territorial integrity of former

Yugoslav republics, respect for human and minority rights, democracy and the rule of law

etc.). Within this conference, there were formed a Special Group on Kosova/o to tackle

the issue on par with that of other groups not entitled to independent statehood. The

work of the London Conference, it should be noted, was based on the previous work of

the Hague Conference on Yugoslavia, so that almost all structures were preserved, as it

had been the case with the Badinter Commission (previously named as Committee).

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The first evolution and the change in the attitude of international community occurred

regarding the holding of referendums for independence on the side of former Yugoslav

republics wishing independence. This criteria was not required in the “Guidelines”. Based

on this, Serbs in Croatia and Bosnia-Herzegovina held their referendums as well and

declared their republics although they were not in majority at the time and lacked clear

territorial base and its compactness. This was achieved later by ethnically cleansing all

the non-Serbs. No-changes in borders, democracy and the rule of law, respect for human

and minority rights were the same as in the previous conference (the Hague Conference

on Yugoslavia). Those entitled to self-determination were former Yugoslav republics

only that had effective control over their territory and the date of their independence

varied from one republic to the other. An)way, former Yugoslavia’s break-up was

deemed as over and completed as of Summer 1992, according to Badinter opinions.

The statehood of Kosova/o was denied although it declared the independence and asked

for its international recognition on 20 December 1991, as required by the “Guidelines”. In

literature and the scholarly work on the issue this denial of Kosova/o’s international

recognition has been justified on the ground of its government lacking of effective

control over the territory of Kosova/o. There have as well been comparisons of

Kosova/o’s case with those of “Srpska Krajina” (Croatia) and “Republika Srpska”

(Bosnia-Herzegovina), which we deem as inappropriate ones for Kosova/o has had since

the time immemorial its own clear territorial base. Its path for independent statehood has

been a peaceful and civilized one, and has been encouraged by the international

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community as such. The Badinter Commission did not mention Kosova/o within those

entities entitled to self-determination, though. Yet, it has to certain extent equalized it

with all other cases of ethnic communities living within former Yugoslav republics and

which are entitled to the so-called internal right to self-determination, short of

independent statehood. This approach of Badinter is, it should be noted, not a principled

one for its leaves “ripe” for ethnic cleansing all the others living within former republican

borders. Elimination of any opportunity for border changes closes any possibility for their

readjustment in a case where there is a very little chance the Balkans leaders would

accept any relinquishment of territory in a peaceful way. This hold true especially with

Serbia’s leadership and its justification of their right to self-determination: In some cases

their arguments are based on history (Kosova/o), in others in fait accompli (Bosnia-

Herzegovina) or in the ethnic composition of a given territory (Vojvodina). The questions

addressed by Serbia to the Badinter Commission asking whether the boundaries of

Croatia and Bosnia-Herzegovina were international borders showed the very logic of

double standards that Serbia was going to pursue, even by force, in the days to come on

the eve of the w ars. In sum , the uti possidetis principle, as applied in former

Yugoslavia, may cause a serious problems in the future, as it has already been causing,

for its application in the past has been related only to small portions of frontiers’ belt and

regarding mountains areas, thus living outside them only unnoticeable part of the

population and territory.

3. After the Dayton Peace was reached in November of 1995, an “outer wall” of sanctions

-98-

was instituted against Serbia. It was meant to discipline Serbia ’ s behavior not only

regarding the issue of its cooperation with the Was Crimes Tribunal, but as well

regarding the Kosova/o issue and Belgrade’s repressive policies against Kosova/o’s

majority population. Its content is related to FRY ‘s (Serbia and Montenegro)

membership in international organizations and financial help to reconstruct its shattered

economy as a result of the economic sanctions against it imposed during 1992-1995.

The impact of the “outer wall” of sanctions on solving the Kosova/o issue has so far been

minor. There have been signed an Education Agreement on September 1996 and

eventually some sort of dialogue between the opposition parties and the Kosovar

Albanians started (in New York and Ul9 in/Ulcinj respectively, 1997). Yet, this was not

enough for Kosovar Albanians, who have been disappointed after RFY (Serbia and

Montenegro) received individual recognition by most of EU member States and the rest

of international community at the beginning of 1996. At this time, there started to

crystallize a new logic within the Kosovar Albanians independence movement, that

is, that the force and arms are the only that count if they is to be achieved independence

from Serbia. The appearance of the clandestine Kosova Liberation Army in the political

scene of Kosova/o is a witness to this. It is a advantageous, though, that collective

recognition of FRY (Serbia and Montenegro) has not as yet been endorsed, which may be

a good means for pressure against FRY (Serbia and Montenegro) to start negotiating with

the Kosovar Albanians leadership in order to solve the crisis there.

-99-

One of the most important issues and the oldest one in Serbia’s political discourse has

been that of State continuity. Namely, ever since its creation in 1918, in Serbia proper

there have been an attitude according to which the newly formed State was a continuation

of former Serbian Kingdom.This stance has been maintained even after former

Yugoslavia’s dissolution in 1992, but is not supported by the rest of international

community, including former Yugoslav republics, now independent States. After the

Dayton Peace, Serbia has been striving to gather support of former Yugoslav republics

and the rest of international community for its State-continuity stance with former

Yugoslavia. Yet, the others are reluctant to accept this for it would have a serious

implications regarding their rights and duties as new international subjects. FRY (Serbia

and Montenegro) should fulfill the same criteria as the others in order to obtain its

collective recognition and there cannot be a mere reintegration of this state into

international community as if it were the same legal subject as former Yugoslavia used to

be.

Solving of the Kosova/o issue by granting a sort of autonomous status similar to that

enjoyed in 1974, is not a solution to the problem. Unfortunately, this approach until very

recently has been accepted and endorsed by the EU member States. This is an insult for

Kosova/o’s peaceful leadership and a blow to international community’s principles for a

peaceful and civilized solution of disputes. It is unlikely that the regional stability could

be better preserved if Kosova/o is granted an autonomous status within Serbia or FRY

(Serbia and Montenegro) and the ongoing events there prove th is. It can be only a

-100-

temporary solution, which in a long run would destabilize the whole region and wider.

The only viable solution, in our view, is to grant Kosova/o a similar status to that of

former Yugoslavia’s republics. This may not be achieved at once and some temporary

“confidence building” measures between Kosovar Albanians and the Belgrade regime,

including Serbs living in Kosova/o, are needed to facilitate the path towards Kosova/o’s

full independent statehood.

-101-

END NOTES

Notes For Chapter II

' For the Serb-Croat relationship and its impact on former Yugoslavia, see, Aleksa Djilas,

The Contested Country: Yugoslav Unity and Communist Revolution, 1919-1953.

Copyright (C) 1991 by the President and Fellows of Harvard College, pp. 4, 131 etc.

James Gow, Triumph of the Lack of Will. International Diplomacy and the Yugoslav

War, (C) James Gow, 1997 p.l5; Dusko Sekulic, The Creation and Dissolution of the

Multinational State: The Case of Yugoslavia. “Nations and Nationalism” 3 (2), 1997 (C)

ASEN 1997 pp. 169-70; Philip J. Cohen, Serbia’s Secret War. Propaganda and the Deceit

of History. Copyright (C) 1996 by Philip J. Cohen, pp.8-9.

Cf. Dusan Subotic, Misli o Ustavu i Politici. a). O Ustavu za Kraljevinu Srba, Hrvata i

Sloveneaca. b) Politicki Clanci o Ujedinjenju. Beograd, 1929 ( In English: Dusan

Subotic, Thoughts on Politics and Constitution, a). On the Constitution of the Serb-Croat-

Slovene Kingdom.b) Political Papers on the Unification. Belgrade, 1929 ); Oscar Randi, I

Popoli Balcanici. Roma, 1929; Bogdan Krizman, Vanjska Politika Jugoslovenske Drzave.

Zagreb, 1975. (In English: Bogdan Krizman, Foreign Policy of the Yugoslav State.

Zagreb, 1975).

-102-

'' Cf. Oscar Randi, op. cit. 141; Mark Almond, Europe’s Backyard War. The War in the

Balkans. Copyright (C) Mark Almond 1994, pp.l 15-120; James Gow, Legitimacy and the

Military. The Yugoslav Crisis. (C) James Gow, 1992 p.6.

Cf. Radoslav Stojanovic, Jugoslavija, Nacije i Politika. Beograd, 1988 p. 119. (In

English: Radosalv Stojanovic, Yugoslavia, Nations and Politics. Belgrade, 1988 p.ll9).

See especially the pre-War literature cited in the book as well as that of the post-War

period; Djilas, op. cif 29-31.

Cf David Owen, Balkan Odyssey. (C) David Owen 1995,1996 pp.5-31.

’ J. F. Brown, Nationalism, Democracy and Security in the Balkans. Copyright (C) 1992

by RAND pp.150-151. See especially Chapter 4 of the book; Branka Magas, The

Destruction of Yugoslavia. (C) Verso 1993 pp.23-27; Ivo Banac, The National Question

in Yugoslavia. Origins, History, Politics. Copyright (C) 1984 by Cornell University Press

pp.l 15-141; 226-231 ; Slaven Letica, The Genesis of the Current Balkan War. In

“Genocide After Emotion” (Ed. by Stjepan G. Mestrovic). (C) 1996 by Stjepan

Mestrovic, pp.91-108. *

* Cf Hannes Treter-Joseph Marko-Tomislac Boric, Perspektivat e statusit te ardhshem te

Kosoves. “Thema” 14, Prishtine 1996 pp. 217-218. ( In English: Hannes Treter - Jospeh

Marko - Tomislac Boric, Perspectives of the Future Status of Kosova. “Thema” 14,

-103-

Prishtina 1996 pp.217-218 ).

’ Cf. Almond, op. cit.115-118.

Hugh Poulton, The Balkans. Minorities and States in Conflict. (C) Minority Rights

Group 1991, 1993 pp. 57-75; Hannes Treter-Joseph Marko-Tomislav Boric, op. cit. 222.

" Cf. Almond, op. cit. 194; For other anti-Albanian programs of the various Serbian

intellectuals, supported by the State structures in the period between 1937-1944, see,

Rexhep Qosja, The Albanian National Question in the Serb Political Programs during

1937-1944. “ The International Journal of Albanian Studies ” Vol. 1 No.l Fall 1997,

New York NY. Also available in Internet: http://www.Albanian.com/IJAS/.

12 Hannes Tretter-Josph Marko-Tomislav Boric, op. cit. pp.218-219; Branka Magas, The

Destruction of Yugoslavia. (C) Verso, 1993 p. 34.

Hugh Poulton, op. cit. 59-60; Magas, Ibid; Gow, Legitimacy of the Military , 66-67.

“* Almond, op. cit. 201.

Mehmet Kraja, Vitet e Humbura. Tirane, 1995 p. 74. (In English: Mehmet Kraja, Lost

Years. Tirana, 1995 p.74).

-104-

16 Ibid, 56-61.

” Brown, op. cit. 61-63.

Magas, op. cit. 9.

” Sabrina P. Ramet, Nationalism and Federalism in Yugoslavia : 1962-1971. Copyright

(C) 1984, 1992 by Sabrina P. Ramet pp. 176 & 270 - 279.

20 Magas, op. cit. 3-6.

For the full text of the Memorandum of the Serbian Academy of Sciences and Arts, in

Serb-Croatian, see, “Nase Teme” 33 (1-2). Zagreb, 1989 pp.128-163. For its essential

parts in English, see, Fehmi Pushkolli-Limon Rushiti-Fehmi Rexhepi-Jusuf Bajraktari &

Izber Hoti(ed.), Expulsion of Albanians and Colonization of Kosova. Copyright (C) 1997

by the Institute of History of Kosova and the Kosova Information Center. Prishtina, pp.

80-87.

Aleksandar Pavkovic, The Fragmentation of Yugoslavia . Nationalism in a

Multinational State. (C) by Aleksandar Pavkovic, 1997 pp.89-90.

Michael Krykov, Self - Determination from Marx to Mao. “Ethnic and Racial Studies’

-105-

Vol. 19 No.2 April 1996 pp. 352-377; Zoltán D. Barany, The Roots of Nationalism in

Postcommunist Europe. “Balkan Forum” (Skopje-Macedonia) Vol. 2 No. 2 March 1994,

pp. 116.

24 Magas, op. cit. 20. Cf., also, Gow, Triumph of the Lack of Will. 17.

Jansuz Bugajski, Nations in Turmoil. Conflict and Cooperation in Eastern Europe.

Copyright (C) 1993 by Westview Press Inc., pp. 125-136 at 127 &136.

After the end of Cold War, Yugoslavia lost its strategic importance as a buffer zone

between East and West and its Non-Aligned Movement went into the margins of

international fora. Cf Gow, Triumph of the Lack of Will. 12 & 20-31; Zoran Pajic, The

Former Yugoslavia. In “Minority Rights in Europe: The Scope for a Transitional

Regime” (ed. by Hugh Miall). (C) Royal Institute of International Affairs, 1994 pp.56-66.

For a full account of the history of former Yugoslavia and the Serbian unabated

domination of its state and political structures, see the following literature: Reno Lukic &

Alen Lynch, Europe from the Balkans to the Urals. The Disintegration of Yugoslavia and

the Soviet Union. (C) SIPRI 1996 pp.57-97; Cohen, Serbia’s Secret War. 3-24 .

28 Kraja, op.cit. 113-141.

-106-

Dan Morgan., Yugoslavia’s Multiethnic Make up Could Lead to Its Unraveling.

“Washington Post”. 17, December 1989. Also available in Internet: http//www.

washingtonpost.com/longterm/bosvote/1989 htm

Cf. Aleksa Djilas, A Profile of Slobodan Milosevic. “Foreign Affairs” Vol. 72 No.3

Summer 1993 pp. 81-95.

31 Almond, op. cit. 9.

Dragisa Pavlovic, Olako Obecana Brzina (C) GLOBUS, Zagreb 1988 p.331. (In

English: Dragisa Pavlovic, The Speed Promised in Haste. (C) by GLOBUS. Zagreb, 1988

p. 331).

” Philip J. Cohen, Ending the War and Securing the Peace in Former Yugoslavia. In

“Genocide After Emotion’’, pp. 31-51 at 31.

Muhamedin Kullashi, Ese Filozofiko-Politike. (C) DUKAGJINI, Peje 1995 pp.l52-

171.(In English: Muhamedin Kullashi, Philosophical and Political Essays. (C) by

DUKAGJINI. Peja, 1995 pp. 152-171).

Darko Hudelist, Kosovo-Bitka Bez Iluzija. (C)Centar za Informacije i Publicitet.

Zagreb, 1989 pp. 34-37; 42; 155-57; 165-67; 173 -177; 188-90 (In English: Darko Hudelist,

-107-

Kosovo-The Battle Without Illusions.(C) 1989 by Center for Information and Publicity.

Zagreb, pp. 34-37; 42; 155-57; 165-67; 173-177;188-90); John Zametica., The Yugoslav

Conflict. Adelphi Paper No. 270. (C) The International Institute for Strategic Studies

1992 p. 26. The previous author, Darko Hudelist,had all the time been with the organizers

of the so-called “yogurt revolutions” at the end of 1980s. These events offered Milosevic

an opportunity to settle scores with his rivals and to come to power.

Almond, op. cit. 5. In Fact, the campaign with dead corpses is not used by Milosevic

only. Its first appearance dates as far back as 1928. Thus, before the assassination of 28

June 1928 against the Croatian Peasant Party leader, Stjepan Radic, the then Prime

Minister of the Kingdom, Pribicevic, proposed to the King that the head of Tsar Lazar

and the ashes of St. Sava be carried around Croatia to mobilize the Serbian element there

to counteract the Croatian eventual victory in the oncoming elections. Yet, the elections

were not held due to Radio’s assassination which was followed by the royal dictatorship

of January 1929. C f Tim Judah, The Serbs. History, Myth and the Destruction of

Yugoslavia. Copyright (C) 1997 by Tim Judah pp. 109-10.

Eduard R. Ricciuti, War in Yugoslavia. The Breakup of a Nation. (C) 1993 by

Blackbirch Graphics Inc., pp.26-27.

38 Anton Bebler, The Yugoslav Crisis and the “Yugoslav People’s Army”. (C) 1992

Forchungsstelle fur Sicherheitspolitik und Konffliktanalyse, ETH Zentrum, 8092 Zurich,

-108-

pp. 15-16; Lukich & Lynch, op. cit. 194-195. Long before the War started, the Yugoslav

People’s Army (JNA) had prepared the military plans in line with the Serbian

Memorandum of 1986, a fact admitted by Veljko Kadijevic himself in his capacity as the

last Defense Minister of former Yugoslavia. Quoted in Lukich & Lynch, op. cit. 195; See,

also, Philip J. Cohen, The Complicity of Serbian Intellectuals in Genocide in the 1990s.

In Tomas Cushman & Stjepan G. Meshtrovic (ed.). This Time We Knew. Copyright (C)

1996 by New York University, p. 54.

The new territorial divisions done by the Yugoslav military used to be justified in

purely military terms, in spite of large indications of largely political motivation. The

federal parliament and the public were not even informed about the reorganization. Its

later critics noticed a considerable coincidence between this reorganization and territorial

claims by the Serbian nationalists expressed in a memorandum of the Serbian Academy

of Arts and Sciences. See, Bebler, The Yugoslav Crisis. 9-10.

Cf. Istvan Deak, The One and the Many, October 7,1991. In Nader Mousavizadeh (ed.)

“The Black Book of Bosnia. The Consequences of Appeasement”. Copyright (C) 1996 by

the New Republic, Inc. pp.18-19; Fouad Ajami, In Europe’s Shadows, November 21,

1994. Ibid. 53; Aleksa Djilas, A House Divided, January 25, 1993. Ibid. 35; Gow,

Legitimacy and the Military. 139-152 at 142; Bebler, The Yugoslav Crisis. 6-7; Warren

Zimmermann., The Last Ambassador. A Memoir of the Collapse of Yugoslavia. “Foreign

Affairs” March/April 1995 p. 13; “ By the Spring of 1992, some 90% of the Yugoslav

-109-

People’s Army (JNA) and men were either Serb or Montenegrin”. Quoted in Zametiea,

The Yugoslav Conflict. 43. Yet, there is a contradiction in the views of this author since

he believes that there were no war aims to guide the Yugoslav People’s Army (JNA)

during the wars in Croatia and later in Bosnia-Herzegovina. Cf. Ibid. 44. The question

that arises, then, is why the non-Serbs abandoned it, or, why they were pushed to do so.

Cf. W. Raymond Duncan & G. Paul Holman, Jr. (ed.). Ethnic Nationalism and

Regional Conflict. The Former Soviet Union and Yugoslavia. Copyright (C) 1994 by

Westview Press Inc, p.205.

Cf. Almond, op. cit. 15; Warren Zimmermann, the United States last ambassador to

Belgrade (Yugoslavia), admits the extortion of $ 1.8 billion by Milosevic, but says that he

might have used the money for financing the election campaign of December 1990. Cf

Warren Zimmermann, Origins of a Catastrophe. Yugoslavia and Its Destroyers:

America’s Last Ambassador Tells What Happened and Why. (C) 1996 by Warren

Zimmermann (Albanian translation by “Besa” Publishing House. Tirana-Albania, 1997

p.92).

Cf Raymond Duncan, Yugoslavia’s Break-up. In Duncan & Paul Holman, Jr. (ed.), op.

cit. 19-53; Ricciuti, op. cit. 26-28, 30 etc.; Christopher Cviic, Perceptions of former

Yugoslavia: An Interpretative Reflection. “International Affairs” Vol.71 No.4 October

1995 p. 821.

-no-

For a full and a brilliant account of the fascism and anti-Semitism in Serbia, see, the

book of Cohen, Serbia’s Secret War...

45 Morgan, Yugoslavia’s Multiethnic Makeup.

46 Gow, Triumph of the Lack of Will. 42-43.

C f Bugajski, op. cit.lOl, 109 & 120-22; Bebler, The Yugoslav Crisis. 5.

Alan Fogelquist, Handbook of Facts on the Break-up of Yugoslavia, International

Policy and the War in Bosnia-Herzegovina. (C) Copyright 1993 by Alan F. Fogelquist,

pp.12-13.

Reference Manual of the Conference on Security and Cooperation in Europe. CSCE

Decisions - Part V: Chronological Review & Final Word. Vienna, 1994 pp. 272-291.

Therein, it is given the full Statement on the Situation in Yugoslavia, adopted at the 1st

Council of Foreign Ministers Meeting, held from 19-20 June, 1991, Berlin. For its French

version, see, “Reunion de Berlin du Conseil de la CSCE”, 19-20 Juin, 1991. Text

provided by the Albanian Foreign Ministry, Tirana. Comments of the Statement could be

found in Gow, Triumph of the Lack of Will. 166-67 & 240-41.

50 Cf David Gompert, How to Defeat Serbia. “Foreign Affairs’’ July/August 1994 Vol 73

-111-

No.4. pp.33.

Quoted in, Damir Grubisa, Diplomacija na ‘kraju povjesti’. “Erasmus” 18. Zagreb 1996

p.91. ( In English: Damir Grubisa, The Diplomacy at the End of Century. “Erasmus” 18.

Zagreb, 1996 p. 91.).

52 Almond, op. cit. 39.

53 Gompert., op. cit. 32-34.

The appearance of divisions among Europeans and between Europe and the US

convinced the Serbs that the west would not act in a concerted fashion to stop them. Cf

more on this, in the work of Kemal S. Shehadi, Ethnic Self-Determination and the

Break-Up of States. Adelphi Paper No.283. (C) International Institute for Strategic

Studies, 1993; In his book entitled “La Tentation de Venise”, (C) by Bernard Grasset,

Paris 1994, pp.218-19., former Foreign Minister of France, Alain Juppe, explains in a

form of his personal diary the main faults of Europe’s policy towards former Yugoslavia.

In this faults, former President Fransois Miterrand of France played an especially

destructive role by confining Europe’s policy in former Yugoslavia to humanitarian

issues only. This was, Alain Juppe says, a clear signal to Milosevic that there will not be

any military action to stop him, a fact that was later considered rightly as France’s

blessing to Milosevic’s regime for his deeds and actions named as ethnic cleansing.

-112-

” Joint Declaration of the EC Troika and the Parties Directly Concerned with the

Yugoslav Crisis, the so-called Brioni Accord. Brioni - Croatia, 7 July 1991. The text in

Snezana Trifunovska, Yugoslavia Through Documents. From Its Creation to Its

Dissolution. (C) 1994 Kluwer Academic Publishers, pp.311-15.

56 Gow, Triumph of the Lack of Will. 50-53.

57 Almond, 55-56.

58 Gow, Triumph of the Lack of Will. 90.

For an overall account of the philosophy on which the arms embargo had been based,

see, Gow, Triumph of the Lack of Will. 37-39. For the complete chronology and history

of the arms embargo and its strategic aims, see more in Norman Cigar, The Right to

Defense. Thoughts on the Bosnian Arms Embargo. (C) 1995 by the Institute for European

Defense and Strategic Studies.

“ Cohen, The Complicity of Serbian Intellectuals in Genocide in the 1990s. In Thomas

Cushman & Stjepan Mestrovic (ed.), p.44.

Resolution 713 (1991), adopted by the security Council at its 3009th Meeting, 25

September 1991. Trifunovska, op. cit. 349-50.

-113-

62 Almond, op. cit. 52.

“ Stephen Philip Cramer, Does France Still Count? The French Role in the New Europe

Copyright (C) 1994 by the Center for Strategic and International Studies. USA, pp.47-54

at 48, 50, 52-53.

Almond,op.cit. 43 & 48.

Peter Viggo Jakobsen, Myth-making and Germany’s Unilateral Recognition of Croatia

and Slovenia. “European Security” Vol. 4 No. 3 Autumn 1995, pp.400-417.

66 Almond, op. cit. 50-51.

Declaration on Yugoslavia, adopted at EPC Extraordinary Ministerial Meeting, 27

August 1991. Trifunovska, op. cit. 333-34.

Vladimir Djuro Degan, Yugoslavia u raspadu. “Politicka Misao” Vol. XXVIII No. 4.

Zagreb, 1991 p.50. (In English: Vladimir Djuro Degan, The Dissolution of Yugoslavia.

“Political Thought” Vol. XVIII No. 4. Zagreb, 1991 p. 50.).

EC Declaration on Yugoslavia, adopted at the EPC Extraordinary Ministerial Meeting,

the Hague, 3 September 1991. Trifunovska., op. cit. 342-43; Gow, Triumph of the Lack

-114-

of Will. 53.

70 See, also, in Gow, Triumph of the Lack of Will. 66-69.

C f Degan, Yugoslavia u raspadu. 50-60. (The Dissolution of Yugoslavia. 50-60).

C f Marc Weller, The International Response to the Dissolution of the Socialist Federal

Republic of Yugoslavia. “American Journal of International Law” Vol.86 No.3 July 1992

pp.386-387; See, also, Gow, Triumph of the Lack of Will. 36.

C f Correspondents’ Agora: UN Membership of Former Yugoslavia. Letters to the

Editor by Vladimir Djuro Degan (pp.240-44), Ove E. Bring (pp.244-46) and M. Kelly

Malone (pp.246-48), published in “American Journal of International Law” Vol. 87 No. 2

April 1993. In these letters are given the reasons for the non-recognition of the “Serbian

Republics” in Bosnia-Herzegovina and Croatia respectively.

74 EC Declaration Concerning the Conditions for Recognition of New States, adopted at

the Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991. Trifunovska,

op. cit. 431-432. For their analysis, both legal and political, compare. Rein Mullerson,

International Law, Rights and Politics. Developments in Eastern Europe and CIS.

Copyright (C) 1991 by Rein Mullerson, pp.125-135; Predrag Simic, Dynamics of the

Yugoslav Crisis. “Security Dialogue” Vol. 26 No.2 June 1995, pp.153-173.

-115-

See the UN document under the symbol: UN Doc.S/23169, Annex II. Text provided by

the Albanian Foreign Ministry, Tirana.

See the UN document under the symbol: UN Doc. S/23I69. Text provided by the

Albanian Foreign Ministry, Tirana.

See the UN document under the symbol: UN Doc. S /23169. Text provided by the

Albanian Foreign Ministry, Tirana.

EC Declaration on the Situation in Yugoslavia. Brussels, 28 October 1991; EC

Declaration on the Suspension of the Trade and Cooperation Agreement with Yugoslavia.

Rome, 8 November 1991. Trifunovska, op. cit. 368-69 & 378-80; See, also, Gow,

Triumph of the Lack of Will. 57-66.

79 Mullerson, op. cit. 134.

““ EC Declaration Concerning the Conditions for Recognition of New States, adopted at

the Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991. Trifunovska,

op. cit. 152.

81 For an excellent history of this issue, see. Dean Katsiyiannis, Hyper-Nationalism and

-116-

Irredentism in the Macedonian region: Implications for US Policy, Part I. “European

Security” Volume 5 No. 2 Summer 1996, pp.324-356; and Part II. “European Security”

Vol. 5 No. 3 Autumn 1996, pp.470-507.

82 Mullerson, op. cit. 134-135; Weller, op. cit. 569-607.

83 See, full account of this issue, in James Crawford, The Creation of States in

International Law. (C) James Crawford 1979, pp. 31-77: See, also, Helene Ruiz Fabri,

Etat (Creation, Succession, Competences). Genese et Disparition de l’Etat a l’Epoque

Contemporaine. “Annuaire Français de Droit International” XXXVIIT-1992. Editions du

CNRS, Paris pp. 153-178.

For the opposite view, see. Misa Glenny, The Fall of Yugoslavia. (C) by Penguin

Books, 1992, pp. 150-151. The same views as ours are shared by Gow, The Triumph of

the Lack of Will. 62-63. Full account of this policy is given in Peter-Viggo Jakobsen, op.

cit. 400-416.

85 Weller, op. cit. 588.

Mark Balia, Tom Brosnahan, Geoff Crowther, Richard Everist, Hugh Finlay, Helen

Gillman, Rosenary Hall, Daniel Robinson, David Stanley, Robert Straus & Tony Wheeler

(ed.), Mediterranean Europe on a Shoestring. (C) 1993 by Londy Planet, p. 1093.

-117-

Fatmir Sejdiu, Baza juridike - politike e Republikes se Kosoves. In “Ceshtja e Kosoves

- Nje Problem Historik dhe Aktual”. Edicion i Institutit te Historise se Kosoves dhe

Shqiperise. Tirane 1996, pp.371-379. (Fatmir Sejdiu, Legal and Political Basis of the

Republic of Kosova. In “The Issue of Kosova - A Current and Historic Problem”, edited

by the Institute of History of Kosova and Albania. Tirana, 1996 pp.371-379).

For the full text, see. The Academy of Sciences of the Republic of Albania & Institute

of History (ed). The Truth on Kosova. (C) by Encyclopedia Publishing House, Tirana

1993, pp. 341-343.

C f Michael Salla, Kosovo, Non-violence and the Break-up of Yugoslavia. “Security

Dialogue” Vol.26 No.4 December 1995 pp.434-435; A.V. Lowe-C.Warbrick, Current

Developments: Public International Law. “International and Comparative Law Quarterly”

Vol. 41, Part 2 , 1992 pp.478-480; Compare also the reasons for the international

recognition of former Yugoslav republics in the following papers: Martha Rady, Self-

Determination and the Dissolution of Yugoslavia. “Ethnic and Racial Studies” Vol. 19

No.2/96 pp.382-384; Payam Akhavan, Self-Determination and the Disintegration of

Yugoslavia; What Lessons for the International Community? In Donald Clark & Robert

Williamson (ed.), Self-Determination. International Perspectives. (C) 1996 by Donald

Clark & Robert Williamson, pp.227-28; 233-35; 240-42; M. Shaw, State Succession

Revisited. “Finish Year Book of International Law” Vol. V., 1994 p.37.

-118-

Cf. Salla, op. cit. 435; Letters to the Editor: Richard Holbrooke on Bosnia. “Foreign

Affairs” Vol.76 No.2 January/February 1997, pp.170-172.

Notes for Chapter III:

' Gow, Triupmh of the Lack of Will. 225.

The first paragraph of the “Work Program of the Conference . For the full text, see,

Trifunovska, op. cit. 699.

Full text, in Trifunosvka, op. cit. 698; Cf. also Gow, Triumph of the Lack of Will. 229.

Tirana based Albanian newspaper “Rilindja”, dated 23 to 27 May 1997. Here, there is

given full text of the testimony before the Hague Tribunal for War Crimes in former

Yugoslavia of the last president of the collective Presidency of former Yugoslavia, the

Croat Stipe Mesic.

See, more on this, in the following works: Nader Mousavizadeh (ed.).. The Black Book

of Bosnia. The consequences of Appeasement.; Jane M. O. Sharp., Bankrupt in the

Balkans. British Policy in Bosnia. London 1993; Noel Malcolm., Bosnia and the West. A

Study in Failure. “National Interest”, Spring 1995; Stjepan G. Mestrovic (ed.). Genocide

-119-

After Emotion. The Postemotional Balkan War. (C) 1996 the Collection, Stjepan G.

Mestrovic, individual chapters, the contributors; Lawrence Freedman, Why the West

Failed. “Foreign Policy” No. 97 Winter 1994-95.

* Gompert, op. cit. 37-41; Gow, The Triumph of the Lack of Will. 223-259 at 233-34.

’ See, on this issue, in Gow, The Triumph of the Lack of Will. 260-297.

* Full text of all the opinions, see, in Trifunovska, op. cit. 415-418; 474-451; & 634-640;

Scholarly analysis of the opinions and the critics can be found in Luk '; & Lynch, op. cit.

275-281; Alain Pellet, Note Sur la Commission d’ Arbitrage de la Conference

Européenne pour la Paix en Yugoslavie. “Annuaire Français de Droit International” Vol.

XXXVII - 1991. Editions du CNRS, Paris; Alain Pellet, L’ Activité de la Commission d’

Arbitrage de la Conference Européenne pour la Paix en Yougoslavie. “Annuaire Français

de Droit International” Vol. XXXVIII - 1992. Editions du CNRS, Paris pp. 220-238;

Alain Pellet, The Opinions of the Badinter Arbitration Committee: A Second Breath for

the Self-Determination of Peoples. “European Journal of International Law” Vol. 3 No. 1,

1992 pp.178-182; Antonio Cassese, Self-Determination of Peoples and the Recent Break­

up of USSR and Yugoslavia. “Essays in Honor of Wang Tieya” (C) 1994 by Kluwer

Academic Publishers, pp. 131-145; Said Mahmoudi, Recognition of States: The Case of

Former Yugoslav Republics. In Ove Bring & Said Mahmoudi (ed.). Current International

Law Issues. Nordic Perspectives. “ Essays in Honor of Jerzy Sztucki ” . (C) 1994 the

-120-

Authors and CE Fritzers AB, Sweden, pp. 135-159.

Gow, The Triumph of the Lack of Will. 84.

10 See, also, Gow, The Triumph of the Lack of Will. 67-98.

" Cf. Josip Meteljko, Sukcesija drzava u pogledu drzavnih dugova. “Zakonitost” No.l 1-

12/92, Zagreb, pp. 1407-1429; (In English: Josip Meteljko, Succession of States in

Respect to State Debts. “Legality” No.l 1-12/92, Zagreb, pp. 1407-1429); Josip Metelko,

Pravicna razdioba drzavnih dugova pri otcepljenju i raspadu drzave. “Zakonitost” No. 2-3

/93, Zagreb, pp. 149 - 177. (In English: Josip Meteljko., Just Allocation of State Debts in

Case of Succession and Dissolution of States. “Legality” No.2-3/93, Zagreb, pp.l49-

177).

The SFRY’s Presidency “Points of Departure for Resolving the State Political Crisis in

Yugoslavia”. Belgrade, 22 October 1991. Full text in Trifunovska, op. cit. 365 - 368;

Zimmermann, Origins of a Catastrope. 149-150; 170; 191.

Cf. Milenko Kreca, A Few Remarks About the Continuity of FR Yugoslavia; Ljubivoje

Acimovic, Continuity of International Legal Personality of Yugoslavia and Its

Membership in the United Nations; Konstantin Obradovic, Again on the Problem of

Continuity - Is FR Yugoslavia “ O ld” or “ New” State?. All papers published in

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“Medjunarodni Problemi”(“Intemational Problems”) No. 3/94. Belgrade pp. 399-436.

The Serbian view is supported by Yehuda Bloom., UN Membership of “New”

Yugoslavia: Continuity or break? “American Journal of International Law” Vol. 86 No.4

/93; For the opposite view, see, inter alia,Weller, op.cit. 569-607; George Karipsiadis,

State Succession in the Balkans: Its Impact Upon International Boundaries.“The

Southeast European Yearbook 1994-95”. Hellenic Foundation for European and Foreign

Policy. Athens, 1995, pp.151-181. Compare especially the literature quoted in a work of

the last author. Besides this, the opposite view could be found as well in the works of

Degan & Bring, published in the “American Journal of Internationa Law”, and quoted

earlier in this work.

Cf Degan, Jugoslavia u raspadu. 50-52 (The Dissolution of Yugoslavia. 50-62)...

Opinion No.l 1 of the Arbitration Commission of the Peace Conference on Yugoslavia.

Paris, 16 July 1992. Its text in Trifunovska, op. cit. 1017-1020.

17 For a brilliant analysis of the political and other criteria for legitimization of the right

to self-determination, see, in Shehadi, op. cit. 32-85 at 75.

For the full text of Kosova/o’s application for international recognition, see in the

Prishtina based Albanian newspaper “ Bujku ” No.206, December 24, 1991, p.l.; For its

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English version, see, in The Truth on Kosova. 341-43.

First paragraph of the Opinion No. 1 of the Arbitration, i. e., Badinter, Commission of

29 November 1991. Quoted in full, in Trifunovska, op. cit. 415-417.

20 Gow, Truimmph of the Lack of Will. There, it is has been given the following

reasoning regarding the non-recognition of Kosova/o’s independent international

statehood : “ ... As Kosovo was constitutionally in a discrete, non-sovereign, category

from the federating sovereigns (e.g. the republics of former Yugoslavia. Our remark:

E.H.) - under article 4, not article 3, of the 1974 Constitution - its argument fro equality

was ignored. In retrospect, it might have been better for the Kosovars to argue differently

: as Badinter invoked traditional anti-colonial principles, in order to understand the

situation of the federating elements (uti possidetis), and given the territorial definition of

the province, its constitutional status and the nature of Serbian rule there, the Kosovars

could have played on Badinter’s reference to colonialism and argued that their case was

not so much one of messy dissolution of a federal communist State as one of

straightforward colonialism” (pp. 76 footnote No. 26).

Cf Shehadi, op. cit. 21-31.

22 Hasan Unal, Trop de Zeal. “National Interest” No. 43 Spring 1996 p. 95; In all

international documents adopted so fare by the UN, CSCE and the EU/Council of Europe

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regarding the Kosova/o issue, there is an express mentioning of the respect fro human

rights of the Albanian majority population in Kosova/o and the encouragement of the

peaceful way to solving the crisis there. The issue has also been tackled within the

framework of the FRY (Serbia & Montenegro). For the international documents up to

1994, see in the “Briefing on Kosova”, a paper delivered by the Albanian Permanent

Mission to the United Nations in New York, with its annex entitled: “ Increased Concern

of the International Community About the Deteriorating Situation in Kosova” (March,

1994). These papers have been reprinted in “ Kosova’s Plea for Help”, a collection of

1994 prepared by the Government of the Republic of Kosova in exile (Bonn, Germany).

After the Dayton Peace was reached (1995), the human rights approach of the

international community regarding the Kosova/o issue has become more evident.

23 Gompert, op. cit. 30.

Malcolm Anderson, Territory and State Formation in the Modem World. Copyright

(C) Malcolm Anderson 1996, pp. 37-77 & 178-193.

25 Cf. Almond, op. cit. 19-20.

26 The text in Trifunovska, op. cit. 479-480.

27 Lukic & Lynch, op. cit. 191-192.

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28 ’’Declaration on Yugoslavia”, adopted at EPC Extraordinary Ministerial Meeting,

Brussels, 27 August 1991. In Trifunovska, op. cit. 333-334.

29 Cf. Opinion No. 3., para.2. Ibid. 479-481.

“Position of the SPRY on the Question of Internal Borders in Yugoslavia”. Belgrade,

30 December 1991. Full text in “Review of International Affairs”, Belgrade, Vol. XLIII

5 February 1992, p.23.

For an excellent analysis of the history of this principle, see, in Steven Ratner, Drawing

a Better Line - Uti Possidetis and the Borders of New States. “American Journal of

International Law” Vol.90 No.4/96 pp.590-625; Helen Luiz Fabri, 152-178; Michael

Bothe et Christian Schmidt, Sur Quelques Question de Succession Poses par la

Dissolution de l’URSS et celle de la Yougoslavie ”. “ Revue Generale de Droit

International Public”. Tome XCVI 1992, Paris pp.812-841.

32 Opinion No.3 para.2, 11 January, 1992. In Trifunovska, op. cit. 479-480.

33 Ratner, op. cit. 591.

Rady, op. cit. 386; Karipsiadis, op. cit. 151-181.

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Shehadi, op. cit. 75-85; Stephanos Stathatos, Pact on Stability in Europe.’The

Southeast European Year Book: 1994-95”. Athens, 1995, pp. 99-105.

Cf. Hershy, Succession of states. “American Journal of International Law” Vol.5, 1911

Washington D.C.; Lawrence, Les Principe de Droit International. Oxford 1920, pp.l67-

68 & 591; Cavaglieri, Lezioni di Diritto Intemazionale !.. Roma 1926 pp.201-216; Karl

Strupp, Elements du Droit International Public I. Paris, 1933, pp. 91-110; Paul Fauchille,

Traite de Droit International Public, Tome I-er, Premier Partie, Paris 1922 p.766; Karl

Strupp, Les Regies Generales du Droit de la Paix, “Recueil de Cours de l’Academie de

Droit International”. Tome 47 (I), 1934, Paris pp.473-474; Franc Despagnet, Cours de

Droit International Public. Paris, 1910, pp.117-130; 574-575; 579-584; Openheim.,

International Law, Vol.IL Seventh edition by Lauterpacht, 1952, pp.598-599; etc.

Cf Antonio Cassese, Self-Determination of Peoples. A Legal Reappraisal. (C) 1995 by

Cambridge University Press, pp. 302-312; It should be noted, though, that the then

British Foreign Secretary, Douglas Hurd, on several occasions had urged the Yugoslav

leaders to follow the example of the Africans, who constructed the Organization of

African Unity on the basis of respect for colonial borders. C f James Mayall, Sovereignty

and Self-Determination in the New Europe. In Hugh Miall (ed.). Minority Rights in

Europe: The Scope for Transitional Regime, pp.10-11.

38 Cf Opinion No. 2 January 11,1992. Trifunovska, op. cif 474-475.

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39 Opinion No.2 paras. 3 & 4.

40 Cf.Opinion No.4 para. 4. January 11,1992. Trifunovska, op.cit. 486-488.

Cf. Vladimir Ibler, Pravo naroda na samoodredjenje i zloupotreba tog prava. “Politicka

Misao” No.2/92. Zagreb 1992, pp.53-78. (In English: Vladimir Ibler, The Right of

Peoples to Self-Determination and the Abusement of that Right. “ Political Thought ” No.

2/92. Zagreb, 1992, pp. 53-78.).

42 Cf Cassese, Self-Determination of Peoples and the Recent Break-Up. 140-141.

C f Ibid.131-145; Thomas M. Franck, Legitimacy in the International System.

“American Journal of International Law” Vol. 62 No. 4 October 1988 pp. 705-759;

Thomas M. Franck, The Emerging Right to democratic Governance. “American Journal

of International Law” Vol. 86 No. 1 January 1992 pp. 46-92; Thomas M. Franck,

Postmodern Tribalism and the Right to Secession. In Catherine Brolman, Rene Lefeber &

Marjoleine Zieck (ed.). Peoples and Minorities in International Law. (C) 1993 by Kluwer

Academic Publishers, pp. 3-27.

Cf Letters to the Editor of the American Journal of International Law, quoted earlier

in this work, by Degan, Bring & Malone.

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45 Cf. Shehadi, op. cit. 42-43; 73.

46 Payam Akhavan, op. cit. 242-243; Cassese, Self-Determination of Peoples. A Legal

Reappraisal, p. 268.

Fabian Schmidt, Teaching Wrong Lessons in Kosovo. “Transition” Vol. 2 No. 14 July

1996 pp. 37 - 40 ; Jansuz Bugajski, The Kosovar Volcano. “ Transition ” Vol. 4 No. 5

October 1997 pp. 66-72.

“Work Program of the Conference”. 27 August, 1992 - LC/C4 - Final. The text in

Trifunovska, op. cit. 699-670.

David Owen, Balkan Odyssey. (C) David Owen 1995,1996, pp.80-81.

Cf Ibid. 80-81.

" Ibid. 80-81.

” Cf The Paris Peace Agreements of December 1995. Text supplied by the Albanian

Foreign Ministry. Also available in “Serbia Bulletin-Documents”, issued by the Embassy

of the Federal Republic of Yugoslavia (Serbia and Montenegro), Tirana-Albania.

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” Salla, 432; Reginald Hibert, More Dangerous than Bosnia? “The World Today” Vol.

52 No. 12 December 1996 p.322; Franklin De Vrieze., How Complex is the Kosovo

Puzzle? “Le Monde Atlantique” No. 6 May 1997 pp. 39-43; Thanos Veremis, Avoiding

Another Balkan War: Strategy on Conflict Prevention in Kosovo. “Review of

International Affairs” No. 1053-1054, 15 February-15 March, 1997 pp.5-8; Ben

Lombardi, Kosovo-Introduction to Yet Another Balkan Problem. “European Security”

Vol. 5 No. 2 Summer 1996 pp. 267-276.

Notes for Chapter IV

' Cf. Patrie Moore, Revealing Dayton’s Fatal Flaws. “Transition” Vol. 2 No. 4., 12 July

1996 p. 5; Partie Moore, The Ches Player’s Peace. “Transition” Vol. 2 No. 4., 12 July

1996 pp. 6-11 ; Susan L. Woodward, The United States Leads, Europe Pays. “Transition”

Vol. 2 No. 4., 12 July 1996 pp. 12-16; Jan Urban, A Sure Road to Hell. “Transition” Vol.

2 No.4., 1996 pp. 25-27; James A. Schear, Bosnia’s Post-Dayton Traummas. “Foreign

Policy” No. 104 Fall 1996 pp. 87-102; Radha Kumar, The Troubled History of Partition.

“Foreign Affairs” Vol. 76 No. 1 January/February 1997 pp.22-34; Jonathan Eyal, ‘Ten

Commandments’ to Cleanse the Guilt in Bosnia. “The World Today” Vol. 52 No. 12

December 1996 pp. 300-303; Pierre Jacquet, Dayton, IFOR and Alliance Relations in

Bosnia. “Survival” Vol. 38 No. 4 Winter 1996-97, pp. 45-66; Maynard Glitman, US

Policy in Bosnia: Rethinking a Flawed Approach. “Survival” Vol. 38 No. 4 Winter 1996-

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97, pp.66-83; ‘Must Bosnia Remain Broken?’ ‘The Economist”. June 28th 1997 pp.31-

33; Alfred P. Rubin, Dayton, Bosnia and the Limits of Law. “National Interest” No. 46

Winter 1996-97 pp.41-46; J. Stephen Morrison, Bosnia’s Muslim - Croat Federation:

Unsteady Bridge into the Future. “Mediterranean Quarterly” Vol. 7 Number 1 Winter,

1996 pp. 132-150.

Unal, op. cit. 95; Boutros Boutros Ghali, The 50th Anniversary Annual Report on the

Work of the Organization. (C) 1996 by the United Nation Publication Service, New York,

pp. 299.

Jansuz Bugajski, The Kosovar Volcano. 66-71.

C f Veremis, op. cit.6.

C f U.S. Department of State - Office of the Spokesman: Statement by James P. Rubin,

Spokesman on the US Secretary of State, Madeline Albright, Meeting With Dr. Ibrahim

Rugova. August 15,1997 No.97/17. Text provided by the Albanian Foreign Ministry,

Tirana-Albania.

C f USIA Wireless File. November 23, 1995 pp.38-39.

’ Res. 1022. Security Council - Suspension of Sanctions Against Federal Republic of

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Yugoslavia. Date: 22 November 1995. Meeting: 3595; Res.1047. Security Council -

Lifting of Sanctions Against Federal Republic of Yugoslavia. Date: 1 October 1996.

Meeting: 3700. All texts provided by the Albanian Foreign Ministry, Tirana -Albania.

* Opinion No. 8 of the Arbitration Commission of the Peace Conference on Yugoslavia,

Paris 4 July 1992; Opinion No. 11 of the Arbitration Commission of the Peace

Conference on Yugoslavia, Paris 16 July 1992. Trifunovska, 634-637 & 1017-1020.

’ For the full text of the resolutions see: “The UN and the Situation the Former

Yugoslavia” (C) by the UN Department of Public Information. May 7, 1993, pp.72-73.

10 IMF Press Release No.92/92, December 23,1992. Quoted in Malcolm N. Shaw, State

Succession Revisited. “The Finish Yearbook of International Law” Vol. V. (1994) p.53 ,

" Ibid. 53.

Cf. Branislav Milinkovic, FRY and the OSCE-Inertia of Suspension. “Review of

International Affairs” Vol.XLVlII No.1056, 15 May 1997, Belgrade, pp.14-18.

For a thorough presentation of the reasons for rejection, see. Letter from the Permanent

Representative of Slovenia to the United Nations, addressed to the President of the

Security Council concerning the termination of the membership of the former Yugoslavia

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in the United Nations. August 5, 1993. Trifunovska, op. cit. 1038-1040. The official

opposition, that is, the rejection of the stance of the FRY (Serbia and Montenegro) could

be as well found in the following UN documents, under the symbols: E/CN.4/1995/121

&E/CN.4/1995/122.

For the rejection of the other former Yugoslav republics altogether, see, the Belgrade

based newspaper “Nasa-Borba”, dated 20 February 1997. In this issue, there is an article

written by Bojana Jager (in Serbian only) and entitled: “Kontinuitet - tapkanje na mestu”

(The Continuity - A Vicious Circle), in which the author explains the positions of all

parties, the former Yugoslav republics, now independent States, as expressed in a

meeting on succession held in Brussels in February 1997 and that ended in failure due to

the FRY (Serbia and Montenegro) insistence that she is the sole successor to the former

Yugoslavia. (Also available in Internet: http.www. yurope.com/zines/nasa-borba.

Cf Tirana based Albanian newspaper “Rilindja” (Tirana-Albania) of 17 September

1997 pp.l & 5 and of 19 August 1997 pp.l & 5, and September 21, 1997 pp.l & 3. For

the U.S. statement, see, the Statement by James P. Rubin, as quoted earlier above.

Although the Luxembourg Meeting of the Council of Ministers of the EU (16 September

1997) did not expressly that Kosova/o should be given “a wide autonomy”, the Statement

from this meeting refers to the EU’s Council of Ministers’ Meeting of 29 April 1997,

whereby such a proposal had been made. Cf. Tirana based Albanian newspaper

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“Rilindja”, date 17 September 1997 pp.l & 5; The EU’s Council of Ministers’ Meeting of

24 March 1997 (Brussels), foresaw as well the granting of a “wide autonomy for

Kosovo”. Cf. Kosova’s Information Center Daily Report No. 1674. Prishtina, 24 March

1997 p. 1; This type of autonomy had been proposed in the “Strategic Documenf’ of the

Council of Ministers of the EU held in February of 1997. C f Belgrade based newspaper

“Nasa-Borba” (in Serbian), 24-25 February 1997 (Belgrade). Also available in Internet:

http//www.yurope.com/zines/nasa-broba

Yet, Foreign Ministers of the Contact Group countries, meeting in New York on 24

September 1997 and in Washington on 8 January 1988, supported the “enhanced status

for Kosovo within the Federal Republic of Yugoslavia”. C f Prishtina (Kosova/o) based

Albanian newspaper “Koha Ditore”. Prishtina 9 January 1998. Following the New York

Meeting of September 1997, the German and French Foreign Ministers, Kinkel and

Vedrine respectively, launched a joint proposal for solving the issue of Kosova/o on 19

November 1997. In this proposal, the special status for Kosova/o has been offered as one

of the possible solutions to solve the crisis. Cf “Nasa-Borba”, date 22 November 1997.

Also available in Internet: http//www.yurope.com/zines/nasa-borba

At the Bonn Implementation Council of December 9-10, 1997, the Council took note

with increasing concern of the escalating tensions in Kosova/o. The decision by the

delegation of the Federal Republic of Yugoslavia (Serbia & Montenegro) to leave the

works of the Peace Implementation Council meeting did nothing to diminish their

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concern. Proposals for solving the status of Kosova/o were not made on this occasion. Cf

Prishtina based Albanian newspaper “Koha Ditore”. 9 January 1998. From this time

onwards, there have been put forth the same proposals, despite the ever deteriorating

situation in Kosova/o after the Serbian attacks on civilian population in the Drenica

region on March-April 1998, on which occasion more than 80 Kosovar Albanian were

killed and massacred. The violence goes on unabated ever since with a possibility to

spreading very soon into a full scale of the Bosnian-type.

For the New York meeting, see, Kosova Information Center. Daily Report No. 1687.

Prishtina, 7 April 1997 pp. pp.1-2; No. 1689. Prishtina, 9 April, 1997 pp. 1-2; No. 1690a.,

10 April 1997 pp.1-2; All sources in Albanian. The New York meeting had been

organized and sponsored by the New York based Project for Ethnic Relations.

For Ul9 in (in Serbian: Ulcinj) meeting, see the same sources, in Albanian, as quoted

above. No. 1754, dated 24 June 1997 p.2; No. 1756, dated 26 June 1997 pp.1-3; and No.

1757, dated 27 June 1997 pp.1-2.

Cf. Vienna Convention on Succession of States in Respect of Treaties. August 22,

1978, Art.4/1.

’’ Cf. The Status of Yugoslavia in FAO. Informal Briefing Note. September, 1996. Text

provided by the Albanian Foreign Ministry, Tirana-Albania; See, also, Shaw, op. cit.53.

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18 Text provided by the Albanian Foreign Ministry, Tirana-Albania.

’’ Cf. “Decision of the Committee of Senior Officials of the OSCE on the Exclusion of

the Participation of Yugoslavia (Serbia and Montenegro) from the CSCE”, dated 8 July

1992. Trifunovska, op. cit. 844-845.

C f Points 2 &3 of the “Document of the Final CSCE Council Meeting”. Chapter:

Regional Issues. Trifunovska, op. cit. 785-788.

C f Points 1.2 & 1.3 of the Chapter on Regional Problems of the “Document of the

Fourth CSCE Council Meeting”. Rome, December 1993. Text supplied by the Albanian

Foreign Ministry, Tirana-Albania.

C f The document entitled: “ CSCE Budapest Conference 1994 - Towards a Genuine

Partnership in a New Era”. Full text provided by the Albanian Foreign Ministry, Tirana-

Albania.

23 C f Almond, op. cit. 117.

24 Cf Oppenheim, 1948 &150.

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In English: “On the issue of State Continuity with Special Reference to the

International - Legal Continuity of the Kingdom of Yugoslavia with that of the Federal

Republic of Yugoslavia”. Belgrade, 1967.

26 See, for example, the suggestion that Serbia, whether under that name or as

Yugoslavia, would be recognized as the legal successor to the former Socialist Federal

republic of Yugoslavia, as had Russia vis-à-vis the former Soviet Union, in Gow,

Triumph of the Lack of Will. 65.

RFY (Serbia and Montenegro) insists that she is a sole successor to the former

Yugoslavia, while Bosnia-Herzegovina opposes this stance as do the other former

Yugoslav republics, now independent States. This issue has been settled earlier in the

Sintra (Portugal) Agreement and is a part of it. Belgrade also insists that Bosnia-

Herzegovina takes back the criminal suit filed with the International Court of Justice

against the FRY (Serbia and Montenegro) concerning the application of the Genocide

Convention, a thing that Bosnia-Herzegovina and its government will not accept ever.

“Radio Free Europe” (in Serb-Croatian). 2 August 1997, 10:00 p.m. CET; See, as well,in:

“Odraz B92”. Open Yugoslavia, Belgrade Daily News Service. Open Yugoslavia, news

byl4:00CET, May7, 1998. Also available in Internet: WWW: http://www.siicom.

com/odrazb/,http: //b92eng. opennet.org

27 Cf. Kreca, & Obradovic, 399 - 436 ; Vladan Jancic, Slalom Kroz Pravo. “Evropske

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Novosti”. Petak, 5 maj 1995; (In English: Vladan Jancic, Skying over the Law.

“European News”. Friday, May 5,1995); Predrag Simie, Yugoslav Foreign Policy:

Continuity and Changes. “Perceptions” Vol. II No. 3 September - November 1997,

Ankara-Turkey pp. 107-134. This author speaks about continuity and changes in the

Yugoslavia’s foreign policy as if there had been a civil war in the North , that is, the

secession of the others and the FRY (Serbia and Montenegro) had nothing to do with its,

as the author himself has put it, “neighborhood”.

For the official position, C f also the “Essentials of the Organization and Functioning of

Yugoslavia as a Common State”. Titograd, 12 February 1992; “ Statement of the Federal

Republic of Yugoslavia Concerning the Adoption of the UN Security Council Resolution

111 ( 1992)”. Belgrade, 19 September 1992; “ Letter from the Federal Minister of

Foreign Affairs of the Federal Republic of Yugoslavia to the Secretary General

Concerning the Adoption of the UN General Assembly Resolution 47/1 (1992)”.

Belgrade, 28 September 1992. Trifunovska, op. cit. 511-514 & 722-724.

C f the work, already mentioned, of the author Yehuda Blum, published in “American

Journal of International Law” Vol. 86 No.4/93.

For the full text see in ’’Serbia Bulletin - Documents”, Belgrade. Delivered by the

Embassy of the Federal Republic of Yugoslavia (Serbia and Montenegro) in Tirana -

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Albania, January 1996.

30 It is to be noted that the former Soviet Union’s dissolution and the recognition by the

others of the Russian Federation as the sole successor, that is, as a state continuity with

the former Soviet Union was based on the Alma Atta Agreement of December 1991.

According to this, the former Soviet Union’s dissolution was done ab intra, that is, by

common consent of all parties and not violently, an attempt that failed in the case of

former Yugoslavia due to Serbia’s intransigence to peacefully redefine the former

Yugoslav federation.

As far as the real side of the problem is concerned, any similarity between the former

Yugoslavia and the Soviet Union is ruled out as well. Russia was recognized as a

continuing State in relation to the former Soviet Union because of factors relating to

territory, population, political représentât!vness and nuclear bargaining power. C f Bring,

Correspondent’s Angora. 245. C f as well, Vladan Jancic, op. cit. 7; Simic, Yugoslav

Foreign Policy. 107-134. These latter authors share the same view, that is, they see the

FRY (Serbia and Montenegro) as a State that has lost a territory, although more than half

of it, but that still has remained the same.

Cf. The Agreement on Normalization of Relations and Promotion of Cooperation

Between Macedonia and the Federal Republic of Yugoslavia, 8 April 1996. Full text

published in Skopje based Albanian newspaper “Flaka e Vellazerimit” 9 April 1996. See,

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also, the Albanian Embassy correspondence from Macedonia No.892/96, dated 10

April,1996, in which the full text is annexed as well; Regarding Croatia, C f, the

Agreement on Normalization of Relations Between the Federal Republic of Yugoslavia

and the Republic of Croatia, 23 August 1996. For the full text see. “International Affairs”

Vol. XLVII No. 1048/96 pp.13-14; and Belgrade based newspaper “Politika” of 24

August 1996, which contains the comments on the Agreement. As far as Bosnia-

Herzegovina is concerned, there is a “Joint Statement” signed between Alija Izetbegovic

and Slobodan Milosevic on 3 October 1996. The full text supplied by the Bosnian

Embassy in Tirana-Albania. For its comments, see, Charles Truehart, Washington Post

Foreign Service: Bosnia-Yugoslavia to Swap Embassies. October 4, 1996. Also available

in Internet: htpp://www. Washtingtonpost.com

Cf. Statement by the Federal Minister of Foreign Affairs of the Federal Republic of

Yugoslavia Milan Milutinovic. Belgrade, 23 August 1996. Full text published in

“International Affairs” Vol. XLVII No. 1048/96 Belgrade pp.14-15.

” In a recent meeting held in Belgrade from 6-7 November 1997, chaired by Sir Arthur

Watts, the International Mediator on the Succession of former Yugoslavia, RFY (Serbia

and Montenegro) claimed that it was the sole successor to the former Yugoslavia.

Macedonian President, Kiro Gligorov, told media that Milosevic had raised the question

of sole succession on behalf of FRY (Serbia and Montenegro) at the Balkan Summit held

in Crete from 2 -3 November 1997. Gligorov said on that occasion that Milosevic was

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demanding the impossible. Gligorov further added that Milosevic was trying t o change

the facts on the dissolution of former Yugoslavia. This, went on Gligorov, was something

that Macedonian politicians would never accept. To this Gligorov’s statement we would

add only that not only Macedonian politicians, but all of the former Yugoslav republics

and the rest of international community will never accept such an attitude of Serbia. Cf.

ODRAZ B92 vesti, 110697/1 (English). B92 Open Serbia, Belgrade. November 6, 1997.

Also available in Internet: htpp://www.siicom.com/odrazb;htpp://www. b92 eng. opennet.

org.

See, brilliant comments on these issues, by the Bosniac Ambassador in Zagreb, prof.dr.

Kasim Tmka. Zagreb,10 October 1996.Text provided by the Albanian Foreign Ministry

in Tirana-Albania. For the opposite view, which is at the same time the official one of the

FRY (Serbia and Montenegro) authorities, see, Simic, Yugoslav Foreign Policy 107-143.

Compare especially the literature, including that of the author, quoted in that work.This

shows the current public opinion in Serbia’s scientific circles on the issue, which is quite

the opposite one from the rest of international community as a whole.

The mere fact that there have not as yet been established diplomatic relations between

Bosnia-Herzegovina and FRY (Serbia and Montenegro), speaks of itself for the fact that

the latter is not the state continuity with the former Yugoslavia. Besides this, FRY (Serbia

and Montenegro) has been urging Bosnia - Herzegovina to take back the indictment

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against it that has been going on since 1993 before the International Court of Justice in

the Hague. “Nasa-Borba” 28 October 1997. Also available in Internet: http.www.

yurope.com/zines/nasa-borba

C f Zoran Lutovac, Options for Solution of the Problem of Kosova/o. “International

Affairs” No.1056. Belgrade, 15 May 1997 pp.10-14; Dimitros Triantaphollou, Kosovo

Today: Is there no Way Out of the Deadlock? “European Security” Vol. 5 No.2 Summer

1996 p. 292.

The Special Group on Kosovo acting within the Working Group on Ethnic and

National Minorities of the International Conference on Former Yugoslavia (ICFY), under

Ambassador Gerht Ahrens, set up on 3 September 1992, worked out, for the first time, an

autonomy solution for Kosova/o based on the 1974 Constitution and the experience of

South Tyrol, Spain, the Aland Islands, Bosnia-Herzegovina and Croatia. But its was not

thought advisable to try to impose a solution, although this case represents the first

official “autonomy offer” on behalf of Kosova’o made by the international community.

Cf. Hugh Poulton, The Rest of the Balkans. In Hugh Miall (ed.). Minority Rights in

Europe: The Scope for Transitional Regime. (C) 1994 by Royal Institute of International

Affairs, p.72.

” Karl Bildt: Kosova/o Should Have the same Status as Montenegro. Statement in the

Daily Report No. 1736 of the Kosova Information Center (in Albanian). Prishtina, 3 June

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1997 p.4; Momcilo Trajkovic, the leader of “Serbian Resistance Movement” in Kosova’o,

has in several occasions asked for Kosova/o to be a third republic within FRY (Serbia and

Montenegro). If this is not accepted by the Kosovar Albanians than, according to

Trajkovic, it should be followed by the military intervention against the Kosovar

Albanians.Cf. “Kosova Information Center”. Daily Report No. 1945 (in Albanian).

Prishtina, 20 January 1997 pp.10-11.

38 Cf. Lutovac, op. cit. 10-14.

39 Cf. Tirana based Albanian newspaper “Rilindja” from 16 to 20 July, 1997.

“The United States Does Not Recognize FRY (Serbia and Montenegro) as the Sole

Successor to the Former Yugoslavia. “Rilindja”, 1 October 1997 p. 7; “Madeline Olbright

Says that Kosova/o is one of the Conditions for the Full Normalisation of the Relations

with Belgrade”. In Daily Report No. 1735 of the Kosova Informations Center. Prishtina,

2 June 1997 p. 2.; “ The mere faets that we do not lift the “Outer Wall” of sanctions and

do not have as yet the diplomatic relations with Belgrade, shows that we are not in

support of Milosevic’s policy”. Statement by Robert Gelbard, the US President’s Special

Envoy for the Balkans, made at the Press Conference in Podgorica during his visit in

Montenegro on 12 January 1998. “ Radio and Television of Montenegro”. Evening

News, 7.30h p.m. CET (in Serbian only);Also, in the Internet edition of the “Washington

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Post”, there can be found the following: “ The territory administered by the Belgrade

government calls itself ‘Yugoslavia’ but is more commonly referred to as ‘Serbia’ or

‘rump Yugoslavia’.Cf.http://www. wpl.washingtonpo.../T_ONE=l&Country= Serbia

For the issue of war crimes in former Yugoslavia, see, Theodor Meron, The Case for

War Crimes Trials in Yugoslavia. “Foreign Affairs” Vol. 72 No. 3 Summer 1993 pp.

122-135; David Binders, Anatomy of a Massacre. “Foreign Policy” No. 97 Winter 1994-

95, pp. 70-79; Alfred de Zayas, The Right to One’s Homeland, Ethnic Cleansing, and the

International Criminal Tribunal for the Former Yugoslavia. “Criminal Law Forum”

Vol.6. No.2., 1995; Patric Thombery, Saving the War Crimes Tribunal. “Foreign Policy”

No. 104 Fall 1996; Theodor Meron, Answering for War Crimes. “Foreign Affairs” Vol.

76 No. 1 January/February 1997, pp.2-9.

Cf. Rene Gabriel Hymer., Kosova/o After the Dayton. In the Second International

Conference entitled “The Balkans After the Dayton”, held in Tirana from 14 to 16

December 1996. Reprinted in Tirana based Albanian newspaper “Balli i Kombit”, 16

.lanuary 1997, p.8; “Rilindja” (Tirana): 13 February 1997, p. 5; 12 December 1997 p. 1 &

6; 16 December 1997, p. 4; 19 December 1997, p.4; 31 December 1997 p. 1; 11 January

1998, p. 1; Prishtina based Albanian newspaper “Koha Ditore”, 10 January 1998.

The so-called “confidence building measures” were firstly made public by the than Head

of the Office of the High Representative for Bosnia - Herzegovina during a briefing with

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the Albanian Permanent Mission to the European Union in Brussels on 7 August 1996.

The full text No. 266/ 96 of the same date provided to the author by the Albanian Foreign

Ministry, Tirana-Albania.

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NEWSPAPERS AND NEWSMAGAZINES

a) Newspapers

- Balli i Kombit

- Bujku

- Koha Ditore

- Nasa Borba

- Rilindja

- The Washington Post

b) News Magazines

- The Economist

- Transition

- The World Today

c) News Agencies

- B92

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- Kosova Information Center/ Qendra per Informim e Kosoves

- Radio Slobodna Evrope

- Radio & Televizija Cme Gore

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