Serbia presents arguments in Kosovo debate

THE HAGUE -- The debate on the legality of Kosovo’s unilateral proclamation of independence began today before the International Court of Justice (ICJ) in The Hague.

Bataković at the ICJ today (Beta/AP)
Bataković at the ICJ today (Beta/AP)

During the ten days of debates, 28 UN member-states will give their opinions on the legality of the province's ethnic Albanians' declaration, and the court will also hear from Kosovo government officials.

Foreign Minister Vuk Jeremić is attending the proceedings at the ICJ this Tuesday. The case was sent to the court last fall on Serbia's request, by the UN General Assembly.

ICJ President Hisashi Owada spoke at the beginning of the case and summed up the events leading to the process.

The unilateral declaration of independence made by Kosovo's ethnic Albanians in February 2008 represents an act of ethnically motivated secession, and is undermining the very foundations of international law, the Serbian delegation is arguing.

Serbia’s three-hour presentation was opened by the delegation chief and Belgrade's Ambassador to France Dušan Bataković.

Bataković presented Serbia’s stance on the unilateral declaration, stating that it violates the foundations of international law.

He said that the proclamation represents a challenge of the authority of the United Nations and its ability to act in the future towards achieving one of its basic principles: those of maintaining peace and security.

“It is also a challenge to international legal order based on the principles of sovereignty and territorial integrity,” Bataković continued.

He said that with the act, Priština has made Serbs into a minority group in their own country against their will.

“Serbia is convinced that the UN and international community, with the help of the advisory opinion of the judges of the International Court of Justice, will give the right answer to this challenge which strikes at the foundation of international legal order,” Bataković said, and presented the genesis of the Kosovo problem.

He said that the Kosovo crisis is not just a history of negotiations and armed conflicts, but rather a history of human suffering of the Serbian citizens, and particularly Kosovo residents of all nationalities.

“The democratic Serbia honestly laments all the tragedies and pain which it caused by those who acted in the name of Yugoslavia and Serbia during the conflict in Kosovo, and especially because of the serious violations of the human rights of the Albanian population in 1998-1999,” Bataković said.

He reminded that a number of military and police officials have been convicted by Serbian courts for the crimes committed in Kosovo.

“Serbia is convinced that the court, as it has until now, will give its opinion based exclusively on international law, independent of the balance of power between individual countries,” Bataković said.

Bataković also said that during the years of conflict, the so-called Kosovo Liberation Army (KLA) made up of ethnic Albanians had committed serious crimes against Serbs, other members of the non-Albanian community, and the ethnic Albanians themselves who had been loyal to the Serbian authority in Kosovo.

He pointed out that the basic human rights of the Serbs and other non-Albanians in Kosovo were being vitally threatened and that those people were continuously pressured to move out from the region.

Bataković said that all big towns in Kosovo, with the exception of just one, had been ethnically cleansed, with no Serbs or other non-Albanians living there and reminded of the 2004 pogrom and the desecration of Serb churches and monasteries "as the only cultural monuments in Europe that are guarded by international armed forces because they are faced with the realistic threat of being demolished".

He added that the crimes which ethnic Albanian extremists had committed against Serbs and other non-Albanians in the period after June 1999 had for the most part remained unpunished, and noted that 1,300 persons were still being treated as missing, and that the same number of people had been murdered over the last ten years.

According to Bataković, the declaration represents an attempt to abolish the UN administration in Kosovo, to annul Serbia's sovereignty over its southern province and to impose independence as a unilateral solution for Kosovo.

"Serbia is confident that the court (ICJ), as it has always been the case so far, will base its advisory opinion solely on international law, regardless of the political considerations and the balance of power between certain countries," said the head of the Serbian delegation.

Even though the proclamation of Kosovo’s independence was a clear violation of UNSCR 1244 and the sovereignty of Serbia, Belgrade has decided to react in a responsible way, Bataković said.

He repeated that Serbia will not back down in its fight to defend its territorial integrity, but that the country is ready to be “flexible” in searching for a practical solution for the current situation.

Bataković said that he hopes that that the decision of the court will be such that will support the continuation of negotiations which could lead to an acceptable solution for both Belgrade and Priština.

Serbian representatives reminded the judges that the unilateral independence proclamation was made by the temporary Kosovo government and went against Resolution 1244, which guarantees the territorial integrity of the Federal Republic of Yugoslavia, of which Serbia is a successor.

He said that efforts of the Priština delegation to maneuver around that fact before the court were impossible, and said this attempt consisted of claims that the proclamation was not made by the temporary self-administration, but by “democratically elected representatives of the people”.

Bataković reminded that Serbia had offered ethnic Albanians broad autonomy, including membership in international organizations, but that all proposals were rejected in the status negotiations that were, according to him, doomed from the start, because of UN envoy Martti Ahtisaari's obvious bias.

Legal expert Marcelo Kohen asked what arguments could convince the court that Kosovo should be looked at as a “unique case”, which many countries that support its independence declaration have backed.

Kohen said that the UN General Assembly, Security Council or any other international institution have never before accepted the secession of the territory of a country in the way that those who support Kosovo's independence are advocating.

"The decision on the unilateral independence declaration was made by the temporary institutions that were formed in accordance with Resolution 1244. However, the assembly decision, which was signed by the Kosovo president and supported by the prime minister, was not in accordance with the Resolution, nor the constitutional framework which was in effect when the decision was made," Serbian attorney Vladimir Đerić said in his address to the court.

German international law expert Andreas Zimmermann also warned that the secession of Kosovo occurred at a time when the province was under the administration of the United Nations.

He said that there are many such missions in the world and that they are always deployed with agreement from the governments of the countries in question.

“It would be a dangerous precedent if these countries, after the Kosovo experience, concluded that the arrival of peacekeeping forces represented the first step in the secession of a crisis region which seeks independence,” he said.

Historic proceedings

The debate is set to be a historical one, since no case before the ICJ has ever had this many participants – 36 countries sent written statements and 28 will participate in the proceedings.

China will make its first appearance before the ICJ, and for the first time in 50 years, Russian and American delegations will present opposing stances on an international problem.

All five permanent members of the UN Security Council – where a resolution on Kosovo's independence failed to pass – will also be participating.

The debate was opened by the Serbian delegation, which had three hours to show that the proclamation was an ethnically motivated act of secession without precedent in international law.

Along with Serbian officials, three experts of international law – one from Argentina, one from the UK and one German – will also be speaking on behalf of Belgrade’s argument.

Even though Kosovo is not a UN member, its delegation will also be given three hours to present its arguments.

The Kosovo Albanian delegation, led by Foreign Minister Skender Hyseni and British expert Michael Wood, will not participate as a state delegation, but as the authors of a unilaterally made independence declaration.

Their argument is that Serbia, "with many years of violating the human rights of Albanians, especially in 1999", had "lost its rights to Kosovo", and that this was "confirmed by the recognition of Kosovo’s independence by some 60 countries".

Once the debate ends on December 11, the court will give its opinion on the legality of Kosovo’s independence, though a decision is not expected before the summer of 2010.

The ICJ decision will also not be binding, although it will carry undisputable legal and moral weight, says our reporter.

For this reason, the debate will see great attention being given to it by the media, with over 80 journalists from around the world expected to follow the proceedings in over the next ten days.