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The truth about Kosovo: Arguments and fact for in support its independence

By: Esat Stavileci

The attention of world diplomacy is focusing on Kosovo ever more. We have now in the hands of UN Security Council a proposal addressed by former Finish President Martti Ahtisari which is attached to the document that sets the framework for a possible future status of Kosovo, has summarized the guarantees for the position of minorities, and in particular the Serbian minority has described the modalities for the relatively emphasized international presence in Kosovo, with executive authority as well as authority to interpret its mandate, even after the decision for the new status, which limits Kosovo’s eventual sovereignty. Now it is on the members of the Security Council to reach a decision on Kosovo’s future. We are aware that Serbia has undertaken a diplomatic offensive to influence the members of the Security Council of UN in order to unable the adoption of a new resolution, with the justification that Ahtisari’s proposal recommends “annexation of Serbia’s territory” and “removal of Serbia’s sovereignty over Kosovo” and that all of this, according to Belgrade officials, “is in contradiction with international law”. This is the reason why, in an effort to inform your readers and the members of the Security Council I, as a member of Kosovo Academy of Science and Arts and as a professor of law with an extensive political and legal bibliography, will highlight in broad lines a number of historic, political and legal arguments and facts that convincingly speak that Kosovo was occupied by Serbia in an unlawful manner, which is why Albanians, as a majority population in Kosovo, should enjoy the right to self-determination, whether that is as a majority population in an individualized territory or as their national right. By proving this truth, this article aims to, at the same time, prove that Serbia’s projects for the creation of two entities in Kosovo or its partition are unacceptable.

Firstly, given that Kosovo was annexed by Serbia in an unlawful manner Kosovo’s independence will in no way be in contradiction with international law. On the contrary, Kosovo independence even before being qualified as a “classic case of secession from a sovereign state”, as Serbs argue, should be considered as “annulment of an unlawful annexation. In fact it was Serbia that acted in contradiction with international law in 1912 when it annexed Kosovo through military occupation after its aggression against the Ottoman Empire, “even though Kosovo had its historic and ethnic identity, accompanied by its right to liberation, whether that was from the Ottoman occupation (1912) or Fascist occupation (1944), and in spite of its geographical demographic and cultural integrity”. Consequently, instead of admitting its unlawful act, which she committed while violating international law in a bold manner, Serbia is now using an argument which is scientifically and historically unsustainable, namely to “preserve its sovereignty over Kosovo”, which, as proved by facts, she held in an unlawful manner for a long period of time without ever asking the majority population of Kosovo or having their consent. Kosovo was occupied during Balkan wars (1912-1913) in contradiction with the aspiration of the Albanians, expressed during their national liberation movement 1878-1912. In this manner Serbia, in spite of getting the “international legitimacy” for the occupation of Kosovo, in no way was able to justify the legitimacy of its act. In addition to this, Serbian possessive attitudes towards Kosovo which refer to history are unfounded. Firstly they are unfounded in its methodological qualification of the national character of a territory because if history is to be taken as a criteria, in light of contemporary national-territorial realities, Hungary has the right to the Panonic part of Yugoslavia, Bulgaria and Hungary would argue about their rights over Belgrade, Greece would claim a right over Istanbul, Albania over Janina, Mexico over Florida and California, Sweden over Finland and Norway, Germany over Shlezi and Sudet regions, Denmark over Shlezivik, Iraq over Kuwait etc. Secondly, Serbia’s possessive attitudes towards Kosovo are unfounded in the aspect of material truth, since Kosovo, in spite of allegations of such nature “in neither a cradle of Serbian nation, nor of Serbian state”. Finally, imperialistic ambitions with “historic rights” could not be defended by England, France, Spain, Portugal, Netherlands, which, as it is known “with centuries held many nations under their occupation. Therefore “with the destruction of colonial empires over 120 new states were created”. Serbia was “under the occupation of Ottoman Empire for over five centuries (1389-1878). Spain “had conquered all Latin America in the beginning of XVI century. Neither do “Russians ever mention their historic rights over Ukraine”. Historic arguments speak very clearly that “Serbs were placed in Kosovo with their expansion under the rule of Nemanjics’”. As a result of occupations during the Ottoman Empire, many ethnic minorities, such as Serbs, Turks and Roma, were placed in the ethnic Albanian territories. The Serbian minority was greatly expanded with the violent colonization that occurred between two world wars; nevertheless their percentage never exceeded 10% of the overall population. On the basis of these facts the conclusion is very clear: it was in deed the Serbian aggression, occupation and annexation of Kosovo that violated the international law and not otherwise, namely that Kosovo independence would violate international law. History is a witness of denationalization policies; of gross crimes against Albanians during 1912-1918; for genocidal Serbian plans for the extermination of Albanians; for the deportation of Albanians in Turkey and for confiscation the lands of the population and its colonization with Serbs and Montenegrins. The time period between February 1998 and June 10, 1999 only exceeded these special cases and took the gravity of a general genocide of the Serbian regime against Albanians.
Secondly, the decision for Kosovo’s future cannot ignore the constitutional position of Kosovo in former Yugoslavia although Kosovo did not enjoy the status of a republic. However, most importantly, Kosovo was a constitute part of former Yugoslavia with a defined territory and borders, which could not be changed without its consent. Kosovo was directly represented in the former Yugoslav federation same as the other republics, not through Serbia because we would create a paradox as in that case Serbia would have three votes in the Federation, while the other units would have only one vote. With its political-territorial identities, its constitution, Kosovo was a federally constitute unit of the multinational federation of Yugoslavia. That Kosovo was not part of Serbia can be proven by the following historical and political facts: Kosovo was not part of the independent sovereign state of Serbia with its international personality recognized in the Berlin Congress (1878); Kosovo was not part of Serbia in the Second AVNOJ Congress (1943); Kosovo was not part of Serbia during its establishment as a federal unit in the Anti-Fascist Popular Liberation Council (1944); Kosovo was not part of Serbia in the structure of Constitutional Assembly of Yugoslavia when the Federal Republic of Yugoslavia was founded (1945). Kosovo was not included in the sovereign Serbia, except in federal Serbia within federal Yugoslavia, during the military occupation of Kosovo (1945). Finally it is worth mentioning that the abolishment of Kosovo’s autonomy with the amendments in the Constitution of Serbia, an act, which occurred on March 28 1989, was done in an unlawful manner. Even if we didn’t have the essential deficiencies regarding the declaration in the Kosovo Assembly, deficiencies that are proven, “lack of free will”, as a result of extraordinary political pressures, makes the declaration for constitutional amendments unconstitutional.
Thirdly, the future of Kosovo cannot be compared with secessions in some other parts of the world. The states that remain reserved towards Kosovo independence should be mindful of this fact. They should instead look and find the “common ground” between Kosovo and certain other countries of the world, which have agreed to the removal of sovereignty over other territories. In this regard, the relations between Kosovo and Serbia are comparable with the relations of Indonesia and East Timor. As it is well known, East Timor was occupied and annexed by Indonesia in 1975, contrary to the will of Portugal as the external sovereign, a fact which makes the annexation of Indonesia unlawful. In 1988 Indonesian government recognized the right to self-determination to the East Timor people. Singapore is another example that should be taken under consideration. This country was partitioned from Malaysia in 1965. The example of Eritrea is also meaningful for Kosovo. It was the Ethiopian government that recognized the right to self-determination to Eritrea in 1991. The case of Kosovo is also similar to the case of Namibia. Partition of Namibia from South Africa and its independence occurred in 1991. Therefore Kosovo’s independence should not be compared with secession of territories that were not annexed in a unilateral manner (against the will of the people of the original sovereigns), which joined existing states but that they are operating in territories that were part of these states at the time when they were established. In this way even the separatist movements in Transdnjestrovle (Moldavia), in Southern Osetia and Abkazia (Georgia) that do not have the ethnic basis that Kosovo has and which didn’t have an autonomous or federal status at the time of dissolution of former Soviet Union as Kosovo had at the time of dissolution of former Yugoslavia. Finally, Kosovo Albanians are not comparable with Catalonians, Scots, Wellsians, Basks or Corsicans… because they did not face a massive deportation from the states, which controlled them.
Fourthly, the existence of Albania as an Albanian state cannot hinder the independence and sovereignty for Kosovo, because as we can recall from history neither did the status of Romania hinder the independence of Moldavia nor did the existence of France hindered the establishment of the canton-state of Switzerland. Finally, even if Kosovo was constituted as an Albanian state in the Balkans, this would be a handicap rather than an advantage of Albanian population in the Balkans. Consequently Kosovo fulfills all the criteria for being an independent and sovereign state. If it is about the size of the territory, 34 states with smaller territory are members of the UN. If it is about the population, 58 states with a smaller number of population are members of the UN. If it is for the acceptance or not of new states in the UN, it should be noted that between 1990 and 2002, UN has accepted 34 new member states. The proverb that “wherever we have facts, words become unnecessary” is not meaningless.

On the basis of these arguments and facts emphasized, in broad lines, the new political legal and international status of Kosovo should be the equivalent, without any doubt, with independence and sovereignty with internationally recognized personality in all of its territory, in the manner to ensure the consistent enforcement of law, including the northern part of Kosovo and the so-called municipalities with Serbian majority, which in the proposal of Ambassador Martti Ahtisari have gained significant competencies in the name of an asymmetric territorial and ethnic based decentralization, which in spite of its well intentions threatens the future of Kosovo. Serbian claims for the creation of two entities or for partitioning of Kosovo are unacceptable for Kosovo. These claims ignore the fact of expressively different demographic and national quantum and proportions. In the end we would like to emphasize the fact that Kosovo is not an ethnically diversifiable territory of an enclave character. Therefore the violent surrounding of one part of Kosovo’s territory, in spite of painful compromises that Kosovo delegation agreed to with decentralization, protective zones around Serbian heritage sites and favorable legislative procedures for minorities would directly contradict the derivative political entity of that territory and would not be in accordance with it.
It is about time that Kosovo gets out from the “closed circle” in which it was for so many years. Kosovo is awaiting a new resolution from the Security Council of UN, which should be characterized from:
Firstly, political, legal and international clarity regarding the status of Kosovo, which would prevent ambiguity in regard to it.
Secondly, full international personality which would enable Kosovo to seek membership in international mechanisms, including UN.
Thirdly, territorial integrity, which would ensure the extension of Kosovo governing institutions and consistent enforcement of the law in its entire territory.
Fourthly, functional state of Kosovo, which would prevent its possible invalidation.

Prishtina
30.03.07



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