Is Serbia incapable of conducting a responsible political and expert debate? In order to answer this question, let us take three examples.
First: the Serbian government has concluded that the International Court of Justice did not pronounce on the essential question of the legality of Kosovo’s independence.
Why was it not asked ‘the essential question’? According toPolitika: ‘When reporters asked whether Serbia would not have done better at the ICJ had it asked a more precise question, the Serbian foreign minister Vuk Jeremic replied that the Serbian legal team had discussed what question to pose, but had decided that any other question carried the danger of eliciting a reply that would have been highly adverse for Serbia. If, for example, the question had been: “Have the Albanians the right of secession?”, there would have been a great danger that the court’s reply might have been sui generis: i.e. that it might have dealt with the uniqueness of the [Kosovo] case, said Jeremic.’
Secondly, and once again: why was ‘the essential question’ not asked? Serbia’s main representative at The Hague, Saša Obradovic, told B92: ‘I think that we should not be naive. Had the question been a different one, the procedure would have taken a different course. The court’s formulation would have certainly been different, but given this verdict by the ICJ and considering all circumstances I think we should not be naive and believe that the outcome would have been different.’ And he went on: ‘The political moment will be in fact more important at the [UN] General Assembly, so we must find a formulation that could win majority support, in a situation that is of great importance. As for the ICJ, I really don’t think that a different question would have led to a different outcome.’
Thirdly, Tomislav Nikolic’s statement: ‘I think that the northern part of Kosovo is today also in crisis, and I think that separatist movements will bourgeon everywhere. I think that Milorad Dodik’s statement [that RS too should declare independence] is a form of advertising, and I would very much like RS to draw a lesson from this and follow suit. I would like to see what they would tell us, if a group of RS citizens were to say that they wanted independence. Not [RS] formally, but a group of citizens, with Milorad Dodik being the first to sign up. He has been telling us for the past five years that this is his goal and desire.’
The foreign minister counts on our not seeing the contradiction: the court is charged with not answering the essential question, which was not put to it, because there was a ‘great danger’ – i.e. it was highly likely – that it would have declared Kosovo’s secession to be legal. His chief legal adviser too does not fail to fall into another logical error (we know what would have happened if it had happened, because it did happen), which he supports with the incomprehensible rhetorical phrase: ‘we shouldn’t be naive’. You who represented us, we who agreed you should represent us, or all of us together who asked for the court’s opinion – what here shows naivete? The leader of the strongest opposition party, on the other hand, did not read the explanation with which the court accompanied its verdict, because he is unable to foresee the legal consequences of the act that he advocates.
Someone should be able to explain properly, politically and analytically, that the court not only replied to the essential question, but also that the question posed and the whole approach of the Serbian legal team were inadequate, and that any eventual declaration of independence on the part of northern Kosovo or RS would be illegal.
That this is so was well known in Serbia already some twenty years ago, at the time when Kosovo held its referendum on independence and proceeded to elect its president and other governmental bodies. No one then recognised the new Republic of Kosovo? Why? Because it ran counter to the Serbian legal framework. The same would be true of northern Kosovo and RS in relation to the internal rights pertaining to them. The declarations themselves would not be in contradiction with international law, because this is the sphere of common right.
The essential question is whether Kosovo’s proclamation of independence was in contradiction with UN Security Council Resolution 1244. The court decided that it was not. In the view of the court, in this specific case, where the international community had assumed sovereign authority in Kosovo, the legal system it established there is not contrary to Kosovo’s proclamation of independence of to its actual independence, whether in terms of the letter of law (Resolution 1244 and the current Kosovo constitution) or in terms of the reactions of the international authorities (the statements of the UN General Secretary, the Security Council or their representatives). This is the essence of the question, and of the court’s response. Experts can and will debate this decision, but the court’s response cannot be seen as a green light to secessionism and separatism anywhere in the world.
It is now being said that it is of no importance which question Serbia had put to the court, because the answer would have been the same – because there was and there remains ‘a great danger’ that Kosovo’s independence is in accordance with international law, which is what Jeremic seems to be saying in the statement quoted above. What then was gained by approaching the ICJ? The current answer is: political advantage. The argument runs as follows: the legal dispute is lost for political reasons, but the political dispute will be won for legal reasons. This is not convincing, to put it mildly, and does not sound promising.
Is the Serbian parliament capable of holding a political debate? It is not. Will the experts conduct a serious debate? They will not. This does not augur well.
Translated by Bosnian Institute, 30.07.2010.
Peščanik.net, 24.07.2010.
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