It is not difficult to understand why the protesters directed their anger at both the United States and Slovenia. Government officials of the two countries have made it sufficiently clear during the past year that they actively support the independence of Kosovo. But public anger, particularly in Serbia, has escalated over a report of a December meeting between U.S. and Slovenian officials that was published in January both in Slovenia’s capital, Ljubljana, and in Belgrade. The publication caused furor in Slovenia, outrage in Serbia, and disappointment among the EU political elite. The document was not meant for the public, but the public did not fail to note the clearly stated American political agenda it contained and the role of Slovenia in its execution.
This behind-the-scenes collusion revealed two violations with regard to Kosovo. The United States, with Slovenian assistance, sought to circumvent the European political process — not to speak of the UN. And Kosovo itself, by unilaterally declaring independence, violated international law. These two violations – of a political process and of the rule of law – will come back to haunt Europe and the United States in the coming months and years.
The Slovenian Role
Slovenia plays a disproportionately important role in this story because it assumed the European Union presidency on January 1, 2008. A week before, on December 24, a meeting between representatives of the State Department and the Slovenian Ministry of Foreign Affairs took place in Washington D. C. Taking part in the talks were, on the Slovenian side, the Political Director of the Ministry of Foreign Affairs Mitja Drobnic and the Ambassador to the United States Samuel Zbogar, and on the American side, Daniel Fried, assistant secretary of state for European and Eurasian affairs, his deputy Rosemary DiCarlo, and Judy Ansley, NSA senior director for European affairs. An internal report of this meeting from the Ministry of Foreign Affairs was leaked to the Slovenian daily Dnevnik, which published it on January 25. A copy was also obtained and published simultaneously by the Belgrade paper Politika. The published excerpts make it clear that the talks touched upon a number of issues but mainly focused on Kosovo.
The American officials presented a list of demands to their Slovenian counterparts. For example, the Slovenian diplomats were informed of the text of the declaration from the joint US-EU summit scheduled to take place in Ljubljana in June. “We would also like to have a mention of Iraq and rogue states, such as Iran, Burma, and Syria,” the U.S. officials demanded. “President Bush is also worried about the situation in Cuba and Venezuela. He is convinced that support for the opposition in Cuba (just like in Georgia and Ukraine) can bring positive results. The US policy toward Cuba is not a regime change but a desire for democratic transition after Fidel Castro’s death. In the declaration from the EU-US summit, they would also like to have a mention of Cuba and Venezuela. They also want the declaration to mention terrorism and non-proliferation.”
As to Kosovo, the conversation was a careful orchestration of Kosovo’s timetable for independence. Daniel Fried praised Slovenian Foreign Minister Rupel and stated that “it is beyond doubt that the solution of the status is a fact, which will happen under the leadership of Slovenia.” Mitja Drobnic asked for help with obtaining the UN Secretary General’s statement in support of sending the European Security and Defense Policy (ESDP) mission to Kosovo, “since some EU member states have difficulties with making the decision to send the ESDP without the UN agreement.” Fried responded that “the UN Secretary General Ban Ki Moon is under the pressure of the Russian Federation and thus in a difficult position.” He informed his interlocutors that the United States had assurances that the UN was not going to put restrictions on the sending of the ESDP mission to Kosovo. The United States, he explained, “will help the UN Secretary General in the case of difficulties with the Russian Federation, while RS [the Republic of Slovenia] has to achieve within the EU the sending of the ESDP in the shortest time.”
The decision to send the ESDP mission to Kosovo was of key importance for the United States, since it was replacing the UN mandate over Kosovo with the EU mandate. In pushing that decision through, Fried was clear: “one can ignore the critical positions and statements of the Russian Federation and Serbia.” Rosemary DiCarlo noted that it would make sense, if “the session of the Kosovo Parliament, in which they pass the declaration of independence, were to be on Sunday, since this way the Russian Federation would not have the time to call for the UN Security Council. In the meantime, the first recognitions would already have happened.”
Fried encouraged Slovenia to be the first to recognize Kosovo. The United States expected that although six EU member states would hold back recognition at least 15 out of the 27 member states would recognize Kosovo and that would be sufficient. He also noted that the United States would be among the first to recognize Kosovo. He told the Slovenes that “the US is drafting the constitution with the Kosovars” and that the situation on the ground was “promising.” Fried added, “The US hoped that the Kosovars would not lose confidence in themselves, because that would mean that the US will lose its influence.”
In Serbia, when notes of this meeting were published, the Minister for Kosovo, Slobodan Samardzic, denounced the American administration’s pressure on Slovenia. He regretted that the American superpower was attempting to force EU member states into violations of international law and that Slovenia and the EU were allowing themselves to become instruments for the realization of American interests. He was wrong about the U.S. pressure on Slovenia. The Slovenian Foreign Ministry under Rupel was all too willing to oblige. But the rest of Samardzic’s points seemed to hold currency within the EU. The Austrian Press Agency characterized Slovenia’s EU presidency as scandalous and Rupel’s views as dissonant even within his own government. Der Standard reported a “sharp conflict” in a meeting of EU foreign ministers, where the Slovenian Foreign Minister reportedly was criticized for putting American interests first.
This scenario for Kosovo’s independence bears the hallmarks of “New American Century” misadventures. In Kosovo, the United States has one of its largest military bases, Camp Bondsteel. The human rights envoy of the Council of Europe, Alvaro Gil-Robles, described it a few years ago as a “smaller version of Guantánamo.” Since Romania and Poland have now been censored by the EU for their role in the secret CIA prisons and rendition flights, a new destination might be necessary in the region. More importantly, Camp Bondsteel is set to become the new home for U.S. air operations, moving them from the Aviano base in Italy, where the recklessness and accidents caused by U.S. pilots have worn down the patience of the locals. Kosovo is closer to the Middle East, which has more than one advantage. And Camp Bondsteel also completes the encircling of the Russian western border.
If Kosovo were to remain an UN protectorate, the United States would have less of a free hand there. As an EU protectorate, however, Kosovo will offer the United States more room to operate freely. As an independent state dependent upon U.S. support, Kosovo will probably not refuse to sign bilateral agreements with the United States on the status of forces.
Kosovo’s declaration of independence is a declaration of independence from Serbia. But this alone does not make Kosovo an independent sovereign state. There is a strong whiff of parody in the coordinated action by which a state declares its independence and other states send in missions to create that state. The EU is sending in 1,800 lawyers, judges, police, and administrators, who are replacing the UN mission and whose task it is to set up Kosovo’s “institutions, legal authorities and agencies for law enforcement as well as other executive responsibilities.” The head of the operation, which is to “base Kosovo on the rule of law,” that is, to build a law-abiding and law-enforcing state there, will be French General Yves de Kermabon. Dutch diplomat Peter Feith, who will head up the International Civilian Office, will have the power to overturn legislation and sack Kosovo officials. KFOR, the NATO-led Kosovo force, will stay, which means that 16,000 foreign soldiers will be stationed in Kosovo. Annex 11 to the Ahtisaari plan, the implementation of which was zealously advocated by the United States, gives NATO military supremacy over Kosovo. (In the week following the declaration of independence, when tensions rose on the border with Serbia, U.S. and French troops restored order.) Economically, the EU plans to spend 330 million euros by 2010, in addition to the 2 billion euros it has already spent.
From 1999, following the NATO bombing of Yugoslavia, Kosovo was a UN protectorate. With the declaration of independence, it has become an EU protectorate that can be more easily shaped by U.S. policy. In real terms, not much has changed. As a commentator in Politika stated: “Neither did Albanians gain much more than they already had, nor did the Serbs lose much more than they had already lost.”
So, if not much was gained or lost, why does Kosovo’s declaration of independence matter?
It matters, first, because the declaration of Kosovo independence is a breach of international law. A unilateral change of borders – that is, a change that is not based on agreement of all concerned – violates one of the basic principles of the UN charter. Serbia is clearly opposed to this move. If the declaration of Kosovo independence is predicated on the limitation, or loss, of Serbian de facto sovereignty over the region following NATO’s 1999 military intervention, then the change of borders has been accomplished by military means. That runs against both the letter and the spirit of the post-World War Two international legal order. To argue that violations of human rights, such as those committed by Serbia in Kosovo in the 1980s and 1990s, can be the basis on which to erect a new state both lacks legal precedent and confuses law with morality. And when it comes to morality in this context, it is a morality of double standards and selective righteousness, in view both of global politics and of the human rights abuses visited on the Serbian minority in Kosovo.
One could quarrel over the interpretation of UN Security Council resolution 1244, as opponents and advocates of Kosovo independence do, but the unilateral nature of the declaration of independence effectively violates international law. That this argument has been raised by states that fear their own separatist movements does not detract from the argument itself. If the rule of law is considered supreme, it is irrelevant whether abiding or protecting the law is in a state’s own interest.
Historically, the closest parallel in the 20th-century Balkans to Kosovo’s unilateral declaration of independence was the declaration of the Independent State of Croatia, the notorious NDH, under the tutelage of Nazi Germany during World War Two. Then, as now, the military superpower of the day constructed a state to its own liking and in its own interest. It did so with the collaboration of local politicians, to the relief of parts of the population, and in the interest of the world war it was fighting. In regard of the more recent history, the declaration of the independence of Kosovo is the continuation of the same type of politics that characterized Serbian oppression, repression, and crimes in Kosovo — the continuation of the politics of might, illegality, and lawlessness.
U.S. arbitrariness rather than the will of the people was the constitutive force of the independent state of Kosovo. The UN was conspicuously pushed aside and ignored. Also ignored were the interests of the neighbors and the countries of the broader Balkan region, most of whom oppose the independence of Kosovo. Ignored as well, and in a rather insulting way, was Russia, which for better or worse has played a role in the region for a considerable time. Finally, ignored were the Serbs. The unilateral decision to declare the independence of Kosovo was carried through in a way to ensure that Serbia will for the time being experience no catharsis, no facing and overcoming of the legacy of the criminal wars of the 1990s. Instead, this decision does the opposite by inflaming the very same pathology that drove Serbia and Serbs into those wars in the first place. Has the United States engineered a new Versailles that will in turn generate future wars?
Tomaz Mastnak, a contributor to Foreign Policy In Focus (www.fpif.org), is is director of research in the Institute of Philosophy, Scientific Research Center of the Slovene Academy of Sciences, and a fellow of the Critical Theory Institute at the University of California at Irvine. He is the former director of the Office of the Alliance of Civilizations of the United Nations.