Human rights and the war in Kosovo

Human Rights and the War in Kosovo

Eric D. Gordy

This forum deals primarily with examining the rationale for and effects of the intervention by NATO in Kosovo. I would like to begin by making a dis- tinction between formal (legal and political) rationales and material (social and political) consequences. My contribution will make an effort to address formal issues, but my strong inclination is to emphasize the material effects of the intervention. While I do not strongly contest the position that international legal and political practices offer a pretext for humanitar ian intervention, I will argue here that many of the consequences of intervention in this case under- mined the humani tar ian motives which were used to justify intervention.

Legal and Political Rationales for Intervention

International law does not provide clear answers to the question of whether military intervention to defend h u m a n rights is generally justified, or in what cases it is justified. This is not surprising, since the treaties and UN resolutions which would be cited on either side of the debate have been authored and approved by representatives of countries which would either take on an obli- gation to intervene or be the object of intervention.

To the degree that there is an answer in international law, it is contained in the Genocide Convention, which was ratified by the General Assembly of the United Nations in 1948. Following are a few relevant passages from the Con- vention:

Article II. In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group.

Article Ill.The following acts shall be punished: a) Genocide; b) Conspiracy to commit genocide; c) Direct and public incitement to commit genocide; d) Attempt to commit genocide; e) Complicity in genocide.

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Article IV. Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

ArticleVIII. Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they con- sider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article 111.1

There are several problems with using the Convention as a source of legal authority.These problems may explain why the Genocide Convention has never been invoked as a pretext for military action.

In fact, none of the genocides which have been carried out since the adoption of the Genocide Convention in 1948 (with the exception of the events in Rwanda in 1994) has been defined as a genocide by the United Nations. Among the genocides thereby excluded from the definition are the earlier massacres of Tutsis in Rwanda (1962-1963) and of Hutus in Burundi (1972-1973), the mass killings by Indonesia in East Timor (1975), the genocide in Cambodia (1975-1979), the massive targeting of civilians by the United States in Viet- nam, Cambodia, and Laos, Iraq's attacks against Kurds (1987-1988) and "marsh Arabs'(1990), and the massive deportations and killings in Bosnia-Hercegovina (1992-1995) and Croatia (1995), to name several prominent examples. 2

In part, the immobilizing vagueness of the Genocide Convention has to do with its definition of genocide. The Convention was adopted in response to the Nazi Holocaust (1938-1945), and essentially adopted a characterization of the numerically largest groups of Holocaust victims as the definition--"a national, ethnical, racial or religious group." One group most obviously excluded from the definition is political groups, or groups identified as political opponents. From the genocide of Armenians by Turkey after 1915, to the artificially engineered famine in the Ukraine in the 1930s, to the destruction of the urban and professional classes in Cambodia, the "exculpatory" designation of political opponents has been used to remove cases from the category of genocide.

In addition to this, the Genocide Convention gives no clear statement as to what body has the authority to approve "prevention and suppression of acts of genocide," what body has the authority to carry them out, or what form these actions ought to take. A cynical observer might surmise that the Geno- cide Convention was designed so as to have little clear application and no chance of ever being invoked.

However, the principle of military intervention for humanitarian goals seems to be invoked more often, with a growing consensus that it has both moral legitimacy and political support. Since international law provides little useful guidance about humanitarian intervention, it is probably necessary to derive some principles on which it could be theoretically justified and evaluated. While this is neither exhaustive nor authoritative, I would suggest the following prin-

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ciples as a way of introducing discussion on means to prevent or halt war crimes.

The intervention should be designed to have a reasonable probability of achieving a halt to atrocities. This has clearly not been the case in the intervention against Yugoslavia. Air attacks against targets principally in Serbia did not hinder the ability of land-based police, military, and paramilitary forces to operate in Kosovo, while the political effects of the air attacks created conditions for a massive intensification of the repression being carried out by these ground units.

The intervention should not involve the commission of new war crimes. Again, this has not been the case in the intervention againstYugoslavia. An interest- ing contrast is offered here: one of the shortest indictments handed down by the International Criminal Tribunal for the Former Yugoslavia (IC-XT) is the one against Milan Marti4, the former leader of the Krajina, the region of Croatia occupied by Serb forces after the Serbian invasion of Croatia in 1991. It is based on only two incidents: the firing of rockets armed with "cluster bombs" into the city of Zagreb on May 2, 1995, and May 3, 1995. In both cases, the indictment reads, Martic"knowingly and willfully ordered an unlawful attack" and "failed to take the necessary and reasonable measures to prevent the attack and failed to punish the perpetrators of the attack. ''3 Similar attacks against civilian targets in Serbia and Kosovo (to name a few examples: the bombings of hospitals in Belgrade and Nis, the bombing of a public market in Nis, the bombings of trains and buses, the bombing of refugee convoys, the bombings of states which are not party to the conflict such as Albania, Bulgaria, and Hungary), if they are judged against the same standard, merit similar indictments. They do not prevent the occurrence of crimes against humanity, and instead constitute new ones.

If the goal of the intervention is punishment, the targets should be selected to punish people responsible for war crimes. Again, this has not been the case in the attacks against Yugoslavia. Paradoxically, by attacking civilians and undermin- ing the capability of civilians to travel and communicate, the bombings have deepened the dependence of these civilians on the authorities responsible for war crimes, while offering those responsible a pretext to justify both their continued rule and the continuation of war crimes.

It is obvious by now that the declared humanitarian goals of the intervention are not going to be achieved by the policy NATO countries have adopted so far. If anything worthwhile is to come out of the experience, it ought to be an open discussion of criteria for humanitarian intervention, so that this first effort does not discredit the cause of humanitarian intervention entirely.

Contradictory Consequence: Intervention Strengthened Media Control

If the attacks did not have the anticipated effect of halting the repression in Kosovo, they had other unanticipated effects. One of these was to offer a pre-


text and a strategy for the regime to enhance its control over public information, further weakening the already precarious position of independent media in Serbia and Kosovo.

Despite repeated attempts by the regime to silence independent media from 1989 onward, some of them successful (the takeover of Borba in 1994 and the strangulation of Nasa borba in 1998, the"redirection" of equipment and takeover of NTV Studio B) and some of them unsuccessful (the periodic efforts from 1991 onward to silence Radio B92), independent media not only maintained a presence in Serbia, but by early 1999 this presence was expanding. Opposition governments in several cities brought the first non-regime televi- sion news and information programs to places outside Belgrade, Radio B-92's web of independent radio stations (the Association of Independent Electronic Media--ANEM) gave independently produced radio news nearly national coverage throughout Serbia and Montenegro, and at least one independent daily newspaper (Dnevni telegrafi was widely available outside the city of Belgrade. While residents of Belgrade had more or less constant access to some sources of independent information from 1989 on, the information gap between Belgrade and the rest of the country was slowly beginning to close by 1998.

At the same time, independent media were beginning to operate as a forum for open discussion between Serb and Albanian political leaders and intellectuals, laying the ground for a more general discussion which might have led to the development of a peaceful approach to the conflict over Kosovo.The independent news agency Beta collaborated with the independent Pristina daily Koha ditore to produce a series of dialogues on issues related to Kosovo. The independent dailies Nasa borba and Koha ditore joined forces to report on developments in the province. Through the ANEM network, Radio B92 publi- cized dialogues between Serb and Albanian figures which were carried out on Omer Karabeg's"Most" program on Radio Free Europe. In Pristina, the independent Radio Kontakt set out to be the"radio of goodwill and reconciliation," offering independent news and broadcasting in both Serbo-Croatian and Al- banian (it survived a month before being closed down by the Ministry, of Infor- mation).

The role of independent media was seriously threatened in October 1998, when the regime took advantage of an earlier NATO bombing threat to ban three newspapers, take over an independent radio station, and force through a restrictive Law on Information which imposed draconian financial penalties for the publication of any material which regime prosecutors could persuade a low-level court to find objectionable. The independent media which survived this attack ground to an abrupt halt when bombing actually began on March 24 of this year. On the morning before bombing began, police closed down Radio B92 and arrested its director, Veran Matic. Independent newspapers ceased publication either because of the lack of resources or later, out of fear

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after the murder of Slavko (~uruvija, editor of Dnevni teleg, raf on April 11. As for the Albanian-language press, it ceased to exist as the intensified repression in Kosovo targeted its writers, editors, and readers.

Perhaps the most important relationship worth highlighting here is between the positions of international political actors and the orientation of the Serbian regime toward independent media. Over the course of less than a year, threats and actions by NATO have given the regime a pretext to intensify the repression of independent media on two separate occasions. The destruction of the access of people in Serbia to information not produced under the direct control of the Milosevic regime is now very nearly complete. Milosevic has NATO to thank for assistance in carrying out this destruction, in which he had never succeeded on his own despite repeated attempts.

Contradictory Consequence: Intervention Margina|ized Peace Movements

It is difficult to assess the degree of influence which social movements or movements of intellectuals have in Serbia. Certainly readers of this journal know about the regular declarations of support the regime receives from organizations of intellectuals such as SANU, the Serbian Academy of Sciences and Arts, and UKS, the Union of Writers of Serbia, whose positions are known in advance. The regime's attacks on autonomous intellectual activity are well known, and included in the last year a largely successful effort to destroy the autonomy of the la;elgrade University.

There is little doubt about one"incriminating" fact: for a portion of the regime-sponsored nationalist intelligentsia in Serbia, claims to the sacred value of Kosovo in Serbian culture took on an important role after 1987, when poets competed with one another to generate the most affecting revisions of the Kosovo epic cycle, and the dominant members of SANU generated the political manifesto which was in large part founded on grievances against the Alba- nian majority.There can be little doubt that this body of "simpleminded archaic kitsch and slimy pathetics "4 meshed with other types of r e , m e sponsored propaganda to build a relatively stable consensus in favor of the regime's continued militau and police occupation of Kosovo.

However, this was not the only kind of intellectual discourse available. Of- ficial versions of the distant and recent past of Kosovo were subjected to with- ering criticism. 5 Quasiregime institutions like SANU and quasiregime political parties like the Serbian Renewal Movement, or SPO, had begun, tentatively, to argue that the status quo in Kosovo could not be maintained and that some compromise was necessary. There is some weak indication that similar think- ing might have taken hold in parts of the regime itself, which could account for the agreement between Milosevic and Ibrahim Rugova to reopen public schools in Kosovo, mediated by the San Eugidio Foundation in 1996--although this agreement was not respected by the regime and never came into force.


For the most part, though, it is true that with the exception of the Civic Alli- ance of Serbia (GSS), major political parties in Serbia largely supported the regime's approach.

The wide consensus over Serbia's "spiral of intentional self-destruction ''~ was raised as a question several times by contributors to the liberal Belgrade magazine Republika. Writers like Mirko Tepavac warned that:

If there is no understanding and negotiation, there will be even more severe sanctions, deeper isolation, perhaps even bombing, but also ever more rebellion, strikes, hunger and freezing. By the time awareness about the inevitability of reform be- comes the dominant political will, maybe there will be nothing left to reform, r

This warning came with the awareness that "there can be no resolution, as long as Serbian radicalism and KLA fundamentalism continue to lead the way in interpreting the national interest. ''s Clearly there was a dilemma--not only was the regime not capable of achieving a compromise in Kosovo, but estab- lishing the rule of law there would require the regime to establish the rule of law in Serbia as well, a condition which threatened their continuation in power more than any other possible development. And with the KLA replacing Rugova's Democratic League of Kosovo as the principal political actor in the province, there was effectively no powerful party interested in anything like the rule of law.

In Kosovo itself, some efforts were being made by grassroots organizations to overcome the barriers of separation which political forces had been build- ing between the Serb and Albanian communities. The experience of one of these groups is illustrative: the "Post-pessimists" was a multiethnic group of high-school students in Pristina which gave an opportunity for young Serbs and Albanians to cooperate in conflict resolution workshops, sports competi- tions, art exhibits, and local research. Founded in 1995, the group eventually received funding from a Norwegian foundation and acquired a house in Pristina to function as the center for their activities. When the bombing began, the house was quickly destroyed, the co-founders of the group went into exile in separate directions, and the hope for peaceful cooperation which the group represented was destroyed entirely. ~

Even if sources of internal pressure had been stronger and had not been destroyed, however, the regime had little reason to respond to them. One il- lustration of the extent to which the regime depended on the rule of law not being established in Kosovo is an examination of the returns from parliamentary elections, which the overwhelming majority of Albanians in Kosovo boy- cotted. As a result, the portions of Serbia with large Albanian populations became the most reliable source of parliamentary seats for the ruling party. In the 1993 election, the two districts (jedinice) with the largest Albanian populations, then, were the only two of Serbia's nine electoral districts in which SPS received a majority of votes. These were also the districts with the lowest level

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of electoral participation: the turnout throughout Serbia in 1993 was 61.3 percent, and it was 53.0 percent in Leskovac and 15.6 percent in Pristina. SPS received twenty-one parliamentary seats for its 59,951 votes from the Pristina district, more than from any other district in the country. By comparison, it received 16 seats for 255,071 votes in the Belgrade district, making the"cost"of an SPS parliamentary seat 15,942 votes in Belgrade, and 2,855 votes in Pristina. Of course, SPS could only count on a steady supply of cheap parliamentary seats in Kosovo if it continued to maintain the conditions which provoked the electoral boycott.

So while some efforts at internal pressure for a peaceful resolution were taking place in Serbia, they can be reasonably described as weak. Sanctions, and later military intervention, were promoted as a form of external pressure. I would argue that they were the wrong kind of external pressure. At some point international political actors will have to answer the question of why they consistently failed to promote a peaceful solution to the conflict in Kosovo---and why they failed to support democratic movements or independent media and cultural movements in any part of the formerYugoslavia.These failures clearly run counter to the declared goals and intentions of the United States and NATO.

Autonomy and Human Rights

One of the goals of the intervention which was declared by some political actors (the Kosovo Liberation Army, or KLA, and the Democratic Union of Kosovo, or DSK) and undeclared by others (UN and NATO) was the estab- lishment of political autonomy or independence for Kosovo. The understanding behind this project is that the political rights of Kosovo's Albanian population could not be realized under the political control of Milosevic's regime (or in some versions, under any Serbian regime). This goal seems to have been realized, at least in practice in the short term. But the continued violence and expulsion, now practiced against ethnic Serbs by ethnic Albanians, raises the question of whether political autonomy creates conditions for the realiza- tion of human rights.

I am interested in another type of autonomy: the ability of people to live their individual lives autonomously, with cultural affiliations they choose, under a regime which makes such choices possible or at a minimum does not actively interfere with them. In contrast to the absolute value of group rights, which proposes that the freedom of individuals is guaranteed by living under a government which is comprised of people of the same ethnicity as its citi- zens, this position affirms the value of individual rights promised in the Uni- versal Declaration of Human Rights:

Article 18--Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either


alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19--Everyone has the fight to freedom of opinion and expression; this fight includes freedom to hold opimons without interference and to seek, recewe and impart information and ideas through any media and regardless of frontiers.

Article 20--(1) Everyone has the right to freedom of peaceful assembly and association; (2) No one may be compelled to belong to an association. 'r

I would argue that these rights can only be realized under a democratic government defined by law, in which rights are not conditioned on a concep- tion of group membership--and that people who are looking for guarantees of these rights in the principle of nationali~' are postulating a category which nationality does not include.

Political Responses to Intervention

The widespread protest against the bombings in Serbia and among Serbs in other countries cut across political divisions, and led many observers to con- sider that perhaps a new wave of nationalist sentiment was taking shape. It is not certain that by opposing the bombing of their families and hometowns people are engaging in nationalist politics. But it is certain that the bombing creates conditions in which it is easier for those who do engage in nationalist politics to mobilize.

This enhances the challenge for people like myself who are simultaneously 1) opposed to the bombing campaign, 2) anti-nationalist, 3) anti-Milosevic, and 4) for a peaceful and democratic solution to the conflicts in Kosovo, in Serbia, and throughout the Balkans. The challenge is deeper still for people in Serbia and from Serbia, who have more trouble referring to European and American models of human rights and democracy, after literally being bom- barded with what appears to be evidence that the paranoid nationalists of the regime were right all along in claiming that the world is against Serbia and its people.

There is no avoiding the culpability of the regime for crimes against humanity in Croatia, Bosnia-Hercegovina, and Kosovo, even if charges related to these crimes are extremely unlikely to receive a public trial. But there is a fine line to be trod in pursuing this responsibility, and in tying it directly to the people and institutions which organized, financed, and committed the crimes. An unfortunate consequence of the kind of publicity these conflicts have received and of the degree of support which nationalist politics have had in Serbia (though I would argue that this degree of support is far less than is often claimed) is that a perception has developed in the world that Serbs more or less deserve any suffering they get--including armed attacks on civilian life.

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If this perception is used as justification for the current attacks, it can function as a kind of self-fulfilling prophecy. People who are under attack are more likely to perceive the regime which is the putative object of the attack as legiti- mate, at least as long as they are subject to threat. Under conditions of crisis, they are also more likely to be concerned about their own suffering than the suffering of others. These are, obviously enough, not the conditions for the development of opposition or democracy.

Is there a way out of the false dilemma between supporting brutally point- less attacks and supporting a brutally repressive regime? It is hard to imagine any kind of confrontation in Serbia with the responsibility of its regime for crimes against humanity, and indeed any kind of peaceful resolution to the conflict between Serbs and Albanians in Kosovo, without a change of regime in Serbia. This was always just short of likely, and recent events seem to be making it less likely.

Notes

1. Convention on the Prevention and Punishment of the Crime of Genocide. Adopted bv the UN General Assembly, December 9, 1948. The full text of the Convention is avaiiab!e online at http:llwww.pactok.net.auldocsldccamlgenocide.htm

2 One listing of genocides carried out since the adoption of the Genocide Convention is provided by Helen Fein,"Accounting for GenocMe After 1945,"lnter~u2tional Journal of Group Rzghts 1 (1993): 87. Another is provided by Frank Chalk and Kurt Jonassohn, The Histo~ and Sociology of Genocide (New Haven: Yale University Press, 1990).

3. Richard J. Goldstone,"The Prosecutor of the'lribunai Against Milan Martic: Indictment," document of the International Criminal Tribunal for the Forrner Yugoslavia, July 25, 1995. The document is available online at http:/Iwww.un.org/ictylindictment/english125-OT- 95.htm.

4. Teofil Pan~;ic,"Slika Donjana Dzeja," Vreme zabave (February 1995): 56-57. 5. See, for example, Olga Zirojevic,"Kosovo u kolektivnom pamcenlu,"and Manna Blagojevic,

"Iseljavanje sa Kosova,'in Srpska strana rata, ed. Neboisa Popov (Beograd: Republika, 1996) 6. Dragos ivanovic,"Srpska kosovska doktrina," Republika 191 (June 16-30, 1998) 7. Mirko li2pavac,"Popravnl iz srpskog," Republika 198-199 (October 1998). 8. Tepavac, "Popravni tz. srpskog." 9. A narrative of the destruction of the group is offered in Paul Watson,"Bombs Close Door

on Teens' Peace Efforts," l.os Angeles Times, April 19, 1999. 10. Universal Declaration of I tuman Rights. Adopted and proclaimed by UN General Assem-

bly Resolution 217A (III), December 10, 1948.This is available online at: http:/Iwww.un.org/ Overview/nghts.html.

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Human rights and the war in Kosovo