Kurti vs Vucic or the continuation of the fight by (international) legal means

Foto: FPN

By: Milos Hrnjaz, assistant professor at the Faculty of Political Sciences, University of Belgrade

On June 15th of this year, after a series of delays, the first meeting between Aleksandar Vucic and Albin Kurti took place in Brussels (RTS :: Nastavak dijaloga u Briselu, sastanak Vučića i Kurtija sa predstavnicima EU). After the meeting, Kurti stated that he presented four proposals during the meeting: 1) change of the international agreement CEFTA (Central European Free Trade Agreement) to SEFTA (South-Eastern European Free Trade Agreement), thus repeating the idea he previously suggested (Comment: Kosovo Proposes Free Trade Agreement for the Western Balkans – Exit – Explaining Albania); 2) for Veljko Odalovic to be removed as the head of the Commission on Missing Persons of the Government of the Republic of Serbia; 3) that Serbs in Kosovo acquire the right to form national councils in the image of national councils for national minorities in Serbia, explaining this proposal by the principle of reciprocity; 4) the signing of a „joint peace agreement between Serbia and Kosovo that would guarantee mutual non-aggression“, while highlighting the importance of the NATO summit in Brussels held the day before the Vucic-Kurti meeting (Kurti predložio Vučiću Nacionalno veće za Srbe umesto ZSO, traži smenu Odalovića i priznanje Kosova, počela priprema tužbe za genocid – KoSSev).

The main purpose of this column is to briefly analyze these proposals from the standpoint of international law, with an analysis of another issue that was greatly discussed in the previous period – the announcement of a possible lawsuit against Serbia for genocide it allegedly committed in Kosovo and Metohija.

CEFTA into SEFTA

At the end of 2006, the CEFTA Free Trade Agreement was signed by the following parties: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Macedonia, Moldova, Romania, Serbia and „UNMIK on behalf of Kosovo under UN Security Council Resolution 1244“ (CEFTA – Central European Free Trade Agreement).  At that time, Kosovo had not yet declared independence, but after it declared independence in 2008, the issue of its membership in international and regional organizations became an extremely important issue. Among other things, the question arose as to the way Kosovo could be represented in regional organizations, which Serbia would agree to. At one point, Serbia refused to participate in regional meetings due to the participation of Kosovo representatives, fearing that this could be interpreted as implicit recognition of Kosovo. Although certain authors rightly pointed out that this fear was mostly unfounded or at least excessive (Predstavnici Kosova i Srbije na međunarodnim skupovima – Tatjana Papić – Peščanik (pescanik.net). The Agreement on Regional Representation and Cooperation was signed on February 24th, 2012 (Договор о регионалном представљању и сарадњи (srbija.gov.rs). It stipulates that Kosovo will be presented with an asterisk, i.e. a footnote stating: “This designation is without prejudice to positions on status, and is in line with UN Security Council Resolution 1244 (1999) and the Opinion of the International Court of Justice on Kosovo’s declaration of independence.” However, the CEFTA text has not been changed in this context, bearing in mind the procedure envisaged for it in Article 48 of this Agreement.  The analysis carried out by certain organizations criticized the passivity of Pristina institutions in the context of the lack of insistence that such things change (Regional-Cooperation-in-the-Western-Balkans_Regional-Economic-Area-the-mini_schengen-and-the-Common-Regional-Market-WEB-1.pdf (balkansgroup.org).

Albin Kurti’s statement that the existing free trade agreement in the region (CEFTA) should be replaced by a new one (SEFTA) can probably be interpreted as part of his broader agenda, which insists on full equality of those participating in the negotiations. Given that it is probably unrealistic to expect a change in the text of CEFTA, the establishment of a new organization could possibly provide what Kurti requested – representation „on an equal footing“.

In this regard, it should first be mentioned that Kosovo’s membership in an international (including regional) organization under the name of Kosovo or the Republic of Kosovo cannot, in itself, represent either direct or indirect recognition by Serbia just because it is also a member of that organization. Not only did such a situation already occur in some international organizations, with no one claiming that Serbia has thus recognized Kosovo, but such a situation also exists in regard to some other entities that do not recognize each other, yet are members of the same international organizations. After all, in such situations, it would be quite sufficient to state that the membership of both entities in a certain international organization does not constitute recognition of that entity. In other words, even if a new organization like SEFTA were established in which Kosovo’s representatives would be represented without any footnotes or asterisks, it would not imply implicit recognition of Kosovo by Serbia. In that situation, Serbia could possibly add an interpretative statement saying that this does not denote the recognition of Kosovo. On the other hand, the political struggle over the status of Kosovo and Metohija may involve a symbolic struggle to make Kosovo „look like a state“ as little as possible, even in this way, including the issue of how it will be represented in regional organizations, although it appears that this issue is losing its importance.

There are, of course, other interpretations as to why it would be important for Albin Kurti to move forward with the establishment of a new regional free trade organization. This should allegedly provide a counter-offensive to Serbia’s diplomatic initiative on the so-called Mini-Schengen („we want regional economic integration, but not under the political leadership of Serbia, but the European Union”), and it could allegedly affect relations between Rama and Kurti, but these allegations go beyond the international legal framework on which this column focuses.

Dismissal of the head of Serbia’s Commission on Missing Persons

Albin Kurti can formally request that the head of the Government of the Republic of Serbia’s Office on Missing Persons be replaced, just as Serbia can request that someone is removed from the negotiations. But, not only is there no legal basis for that (I will not comment on Kurti’s statement about Odalovic’s participation in the „occupation of Kosovo“ which, at least from an international legal point of view, is unfounded), but it can in no way be an obstacle to the civilizational value and the right of the families of all missing persons to know the fate of their loved ones. This, of course, also applies to the obligations of the bodies of the Republic of Serbia of the same type. There must be no question of any reciprocity in this regard. That is something that really should not be brought into question.

The Association of Serb-majority Municipalities into the National Council

Representatives of Belgrade and Pristina, as it is sometimes euphemistically called, have signed a large number of agreements or „agreements“, some of which have been implemented and some have not. The establishment of the Association of Serb-majority Municipalities is envisaged by the Brussels Agreement, but the Constitutional Court of the Republic of Serbia concluded that this document is not an international agreement, i.e. that it is not a legally binding agreement (Предмет – IУо-247/2013 (sud.rs). Setting aside the statements of our officials on this issue despite the court’s position, Serbia has so far successfully insisted that Pristina’s institutions cannot be trusted about anything until what has already been agreed is implemented. On the other hand, Kurti rejects all previous „agreements“; arguing, inter alia, that they were either unconstitutional, or that they had been concluded by the illegitimate governments of Kosovo, or something else. Although it is questionable how well-founded such a position is, the demand that the Association of Serb-majority Municipalities is replaced with national councils, in the image of those councils in Serbia, also fits in with Kurti’s insistence on equality of parties in negotiations and reciprocity. From the perspective of international law, both ideas are possible and can be in accordance with international law, while it should be mentioned that it is very difficult to imagine any future „comprehensive, legally binding agreement“ that would be in line with the existing constitutions of Serbia and Kosovo.

Signing a peace agreement or non-aggression declaration

The media reported this part of Kurti’s statement after the negotiations in different ways – some said that he was talking about peace agreements, and some claimed he was talking about the declaration of non-aggression, which from the point of view of international law does not have to be the same thing. At the same time, Aleksandar Vucic stated that any kind of peace agreement cannot be even discussed because these are not two separate states. In this regard, it should be noted that for a relatively long time it was indeed believed that peace agreements could be formally concluded exclusively between states. In the post-Cold War period, however, this phrase was increasingly mentioned in connection with an agreement between the state and non-state entities after or in order to end non-international armed conflicts. However, this issue should be separated from the one about „paying war reparations“, which can hardly happen in the case of a non-international armed conflict like the one between the organs of the Republic of Serbia and the KLA in Kosovo and Metohija. The only thing that could be talked about in that sense are fair reparations to the victims of those armed conflicts, but that is not the same thing. In any case, today we know of a large number of peace agreements concluded after non-international armed conflicts in practice, although their (international) legal nature remains controversial. Namely, Article 2 of the Vienna Convention on the Law of Treaties stipulates that international agreements (in the context of this Convention!) are those agreements that are concluded between states. However, Article 3 mentions the possibility of concluding international agreements between states and other entities of international law (primarily referring to international organizations, but in the doctrine of international law a very lively debate has developed about who else falls into this category in the context of concluding international agreements). The question is, therefore, whether such an agreement is possible at all in the context of negotiations between Belgrade and Pristina, and especially what would be its function if a „comprehensive, legally binding agreement“ is already being signed.

It is also unclear what significance a possible non-aggression declaration could have in this context. Namely, if Kosovo and Metohija were an integral part of Serbia after the end of the negotiations, it could use force in that part of its territory. If, on the other hand, Kosovo were an independent state, then, regardless of whether Kosovo is a member of the UN or not, the threat of force or the use of force between the two states would be absolutely prohibited. The declaration could have little to contribute in the international legal sense. If Kosovo became a member of NATO (here, I have in mind Kurti’s statement on the connection between a possible declaration and the recent summit of this organization), then according to the agreement of this international organization and the UN Charter, NATO would have the right to collective self-defense of its member in case of armed attacks against it. But, the adoption of a declaration is not necessary for this scenario either.

Genocide lawsuit

In some other place, I explained in greater detail that Kosovo’s chances of suing Serbia for the crime of genocide are minimal (at least before the International Court of Justice), as well as why Serbia is even less likely to be held accountable for this alleged genocide. – Tužba za kršenje Konvencije o sprečavanju i kažnjavanju zločina genocida na Kosovu i Metohiji – Dešifrovanje međunarodnog prava (wordpress.com). That is why I will just summarize this here.

In my opinion, there are at least three levels of questions regarding a possible lawsuit against Serbia before the ICJ for alleged violation of the Convention on the Prevention and Punishment of the Crime of Genocide in relation to crimes in Kosovo.

The first level is the question of whether Kosovo can file a lawsuit against Serbia before the ICJ. The second level is the question of whether Albania can do so and whether it can do this in its own name or in the name of Kosovo. The third level is the question, if the ICJ would eventually be declared competent under either item 1 or 2, what are the chances that Serbia could be held accountable before the ICJ for violating the said Convention.

Regarding item 1, states (whether Kosovo meets this condition or not, at least in theory, would be considered by the Court) which are members of the UN (UN members are automatically signatories to the ICJ Statute) may appear before the ICJ, as well as states that are not members of the UN, but are signatories to the Statute (this possibility is provided for in Article 35 of the Statute and has been used in practice several times), and there is a possibility that under certain conditions a state that is not a member of the UN or a signatory of the Statute can appear before the Court. Bearing in mind that Kosovo is neither a member of the UN, nor a signatory to the Statute, that third possibility remains, at least in theory. In that case, paragraph 2 of Article 35 of the Statute applies, which states that the general conditions for the appearance of such states (assuming that Kosovo meets that condition) before the Court are determined by the UN Security Council, which it did in its Resolution 9 of 1946, which has remained in force to date because the Security Council did not change or replace it with a new one that would regulate the same issue. A detailed analysis of the text of the mentioned Resolution and the nature of this case is probably not possible to present here (it would acquire a separate text), so it may be enough to state that I do not see a way for Kosovo to file a lawsuit with the ICJ on these grounds, except in a purely theoretical case that Serbia agrees to it  (the conditions would be, for example, that Kosovo submits a Declaration to the Court regarding its intention to become a party to the dispute before it; for the Court to determine that it fulfills conditions set out by the UNSC (that it is a state, among other things); that there is an agreement with Serbia to bring this dispute before the court, which seems impossible for several reasons, or to be based on the acceptance of the general jurisdiction of the Court, but even in that case, the acceptance of Serbia would be necessary, etc.). So, all in all, I do not see a way for Kosovo to sue Serbia before the ICJ on these grounds.

The second question is whether Albania can do that in its own name or in the name of Kosovo. In that sense, let me say that there is no possibility for Albania to do that in the name of Kosovo, but only in its own name. Both Albania and Serbia are signatories of the Convention on the Prevention and Punishment of the Crime of Genocide, with Serbia submitting a (controversial) reservation to this Convention, according to which Article IX of the Convention will not apply to it, i.e. that the ICJ will not be competent in case of dispute, However, even this reservation of Serbia would not be accepted, other problems remain in connection with such a lawsuit. The ICJ is currently ruling a case between Gambia and Myanmar, in which Gambia has filed a lawsuit against Myanmar for violating the said Convention, although the alleged violation has no direct connection with Gambia. The ICJ, however, concluded in the decision on interim measures that this is, at least in theory, possible because the Convention is such that all parties are „stakeholders“ when it comes to a crime such as genocide. On the other hand, however, the final decision on jurisdiction has not been made and the question of whether the ICJ would determine that there is jurisdiction in the case of Albania and Serbia depends on too many things that are impossible to predict at the moment (Serbia’s reservation, whether the Court would determine that there is a dispute between Serbia and Albania regarding this issue, the specific moment the lawsuit is filed, etc.). So, it is theoretically possible that Albania or some other signatory of the Convention will try to sue Serbia in this case, but there are a number of obstacles to establishing the jurisdiction of the ICJ in that situation.

The third question is if the ICJ would determine that it has jurisdiction in any of the previous situations, what are the chances that it would rule that a crime of genocide took place in Kosovo and Metohija during 1998 or 1999? My opinion is that the chances for this are minimal. Namely, in its work so far, the ICTY (Hague Tribunal), as far as I know of, has not ruled in any of its verdicts that a crime of genocide took place in Kosovo, although some members of the then state leadership were convicted of other crimes. Even when it comes to Milosevic, the indictment for Kosovo did not contain a section on the alleged genocide in Kosovo. The ICJ is not, of course, formally bound by ICTY practice, but there is very little chance that it will rule differently in this situation (as a rule, the ICJ is a more conservative judicial institution and there is little chance that it will take a much more liberal stance on this issue than the ICTY). Although there are views in the literature that the crime of genocide took place in Kosovo, it seems to me that there is lack of arguments for that, especially ones that would be recognized before the ICJ.

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