Democracy and legality haven’t solved the problem so the US must also rely on humanity, reality, self-interest, and sheer common sense.
In the appallingly complicated politics of the western Balkans, one thing at least is abundantly clear: that without the presence of Western troops, and the threat of NATO military intervention, much of the region would return to the full-scale ethnic warfare of the 1990s. If there were any doubts about that, they should have been dispelled by the latest clashes between Serbs and Albanians in northern Kosovo.
These clashes, in which 30 soldiers of NATO’s peacekeeping Kosovo Force (KFOR) were also injured, originated in a boycott by Serbs in Mitrovica, of municipal elections last month in protest against the refusal of the ethnic Albanian government of Kosovo to grant their district greater autonomy. The voting stations had to be guarded by ethnic Albanian police after the local Serb police force resigned last autumn in protest against the decision by the Kosovo government to replace Serbian automobile license plates with Kosovar ones.
Mitrovica is the last remaining major ethnic Serb enclave in Kosovo, and the government fears, with reason, that the population there would use greater autonomy as a way of eventually separating from Kosovo and re-uniting with Serbia. The Serbs of Mitrovica fear, with equally good reason, that the establishment of full government control of Mitrovica would eventually lead to them sharing the fate of ethnic Serbs elsewhere in Kosovo, who were driven out after the NATO air campaign of 1999 forced the Yugoslav army to withdraw and established the rule of Albanian nationalists in Kosovo.
Kosovo’s independence was recognized by the United States and most Western countries after 2008, but almost half of the members of the UN (48 percent) continue to refuse to do so. Serbia has never recognized Kosovo independence, and in this refusal has the backing of Russia. Western-brokered negotiations between Serbia and Kosovo over the past two decades have led nowhere.
The result of the Serb election boycott was that ethnic Albanian mayors were elected in Kosovo with the support of only four percent of the local population. NATO and Western countries questioned the validity of the election, and asked the Kosovo government not to install the new mayors. The government rejected this, and sent armed police to take over the municipal offices, resulting in violent Serb protests. An intensification of violence was halted with difficulty by KFOR, which has been reinforced by an additional 700 troops.
The United States and NATO have placed chief blame for the latest clashes on the Kosovo government, with the Biden administration marking its displeasure by canceling Kosovo participation in a U.S.-led military exercise and declaring that it now has “little enthusiasm” for Kosovo’s bid to join the EU and NATO.
What are the lessons of this melancholy business? First, don’t expect gratitude. One might have thought that the Kosovar Albanians, having been liberated from Serbian rule by NATO, and then having received recognition of their independence from the West despite previous formal promises not to do this, would have been more responsive to Western wishes.
Second, don’t expect reason in a situation where ethnic loyalties and rival territorial claims are involved. One might have thought that having gained more than 90 percent of Kosovo due to the West, and with future membership of NATO and the EU at stake, the Kosovo Albanians would have been content to solve their greatest problem at a stroke and simply let Mitrovica go. Of course, in refusing to do so the Kosovar Albanians are only conforming to the behavior of the vast majority of states faced with ethnic secession.
Third, do not think that “democracy” is of much help in resolving ethnic conflicts. It can make them worse. The recent history of Kosovo demonstrates that by compelling rival groups to compete for power on set occasions, elections can bring ethnic tensions to a boil. As the British Prime Minister Lord Salisbury said of Ireland:
“There is no precedent, either in our history or in any other, to teach us that political measures can conjure away hereditary antipathies which are fed by constant agitation. The free institutions which sustain the life of a free and united people, sustain also the hatreds of a divided people.”
More than 100 years later, this remains true of Northern Ireland. The “Good Friday” peace agreement of 1999, coupled with exhaustion after the previous 30 years of inconclusive violence has so far prevented a return to full-scale violence; but it did so by effectively ending open elections in favor of institutionalized power-sharing by the rival ethno-religious communities, along Lebanese lines. This arrangement was guaranteed by the continued power of a semi-neutral imperial force, the British state, backed by membership of the European Union, which was supported by both ethnicities. And now, in the wake of Brexit even that agreement has largely broken down.
If democracy is of little help, so too is legality, especially where the question of self-determination is concerned. Where the separation of territories has taken place peacefully and according to agreed legal norms (as in the cases of Sweden and Norway in 1905 and the Czech Republic and Slovakia in 1993), or may do so in future (Scotland and Britain), this has been due to the absence of serious ethnic tensions. These cases however have been exceptionally rare.
International legal experts have expended immense amounts of ink in the attempt to draw up a universal set of firm legal rules for self-determination. It is hard to claim that these have been successful — not least because many of the lawyers concerned have been working for governments looking for legal arguments to support positions that they have already taken for other reasons.
A more sensible approach draws upon law, but combines this with humanity, reality, enlightened U.S. and NATO self-interest, and sheer common sense. It is devoted above all to the limitation of future violence (and in the case of Kosovo, to avoiding a permanent deployment of NATO troops). It corresponds not to absolute standards of either legality or morality, but to what Hans Morgenthau called “the politics of the lesser evil.”
In the words of Louise Arbour of the International Crisis Group:
“[T]he legal framework informs, but only partially, the political response to claims [to separatism]. From a conflict prevention perspective, there can be no absolutist position… The first of these criteria is one of last resort [my italics]. Generally we support independence only when there is no hope for the conflict to be resolved or the right to self determination realized within existing borders… “In the case of Kosovo, for example, especially after the 1999 war, it would be impossible to promote greater Kosovar self-determination with the framework of the Yugoslav or Serbian state…In the case of Somaliland, insistence on the increasingly abstract notion of the unity and territorial integrity of the Somali Republic, with Somalilanders governed again from Mogadishu, is both unrealistic and unsupported by more than twenty years of state practice.”
The same set of principles apply to the issue of the separation of Mitrovica from Kosovo, since it is already obvious that the local Serbs will not and indeed cannot trust the Kosovar Albanian majority and its government to respect their rights. Rejoining Mitrovica to Serbia (after a local referendum supervised by the UN) would not end the dispute between Serbia and Albania, but it would remove by far the greatest danger, which is that a local ethnic conflict in Kosovo could lead to another regional war not originally intended by either government.
We should recognize in this context the immense difference between international and domestic law. Particular international laws and institutions are often unrecognized by many states, including the United States. Despite efforts by the West to create such institutions, they have no universally-recognized courts, and no internationally recognized police force. Attempts by the West to arrogate to itself the right to create such forces have met with opposition from a majority of the international community.
International law is in fact much closer to the traditional customary law of various tribal societies. It is based not on fixed written laws, but on a general cultural consensus. It pays respect to morality, but also recognizes the reality of relative power. Above all, in heavily-armed and disputatious communities, it is dedicated not so much to punishing violence as to ending it, and restoring communal peace. This approach is very far from ideal, but when it comes to cases like Kosovo, it is probably the best one we have.