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Analysis & Opinion
09.12.09 Witness For The Prosecution
By Roland Oliphant

On December 1 the International Court of Justice in the Hague began hearing a legal challenge brought by Serbia against Kosovo’s declaration of independence. The court’s finding will be non-binding, but the case has already brought out old divisions on the issue, with Russia backing up the plaintiff’s contention that the relevant UN resolution entitles Kosovo only to autonomy within Serbia, and the United States taking on the role of chief defender of Kosovo’s unilateral declaration of independence in February of 2008.

The International Court of Justice is not just any court. There are no less than 15 judges on the bench, and instead of private individuals or corporations, the plaintiffs and defendants are states – or, as in this case, entities which would like to be states. So are the witnesses. The greater the number of big countries a litigant can call to the witnesses stand, the better.

Serbia has managed to rally 14 countries to its banner in a bid to convince the court that Kosovo’s declaration of independence violated international law, and the stars of its lineup are Russia and China. Defending the Kosovan decision are some of the 63 countries who have recognized the breakaway state, led by the United States.
Serbia’s case is simple. Under UN Security Council Resolution 1244, a solution to the question of Kosovo’s sovereignty was to be hammered out between Belgrade and Pristina and then rubber-stamped by the UN Security Council. Those negotiations broke down repeatedly, but, argue the Serbs, that does not mean that there is an alternative. Resolution 1244 is still in effect, and that means that Kosovo is still, technically, an autonomous part of Serbia.

Kosovo’s supporters (Kosovo itself has not been recognized by the United Nations, and hence cannot be represented in person) argue to the contrary that general international law neither prohibits nor authorizes declarations of independence.

There is more, of course. Harold Hongju Koh, the head of the U.S. legal delegation, also argued that Serbian officials had made it clear that they had no intention of recognizing Kosovo’s independence regardless of the court’s decision, and repeated the main justification for unilateral independence: that the process outlined in 1244 had broken down irrevocably. “Responsible UN officials have concluded [the negotiations] are futile,” Reuters reported him telling the court.

The question of Kosovo’s independence was a sharp point of contention between Russia and the West, and especially Washington, in 2008. But although neither side has altered its position, the rhetoric has become noticeably less aggressive.

That may partly be explained by an acceptance of the status-quo and an understanding that the court’s finding will have little impact on the situation on the ground. The hearing is mostly a “formality,” according the Alexei Mukhin, the head of the Moscow Based Center for Political Information. “It is not going to change anything,” said Pavel Kandel, a senior research fellow at the Institute of Europe at the Russian Academy of Sciences. “Russia will continue to reiterate its position, but it understands that the reality is that Kosovo is de facto independent. That’s even understood in Serbia.”

But there are other reasons for the thaw over Kosovo. Russia had always argued that the recognition of secessionist Kosovo set a dangerous precedent that threatened the integrity of sovereign states with similar restive ethnic minorities. After last year’s war in Georgia, the Kremlin used exactly that precedent to justify its own recognition of the breakaway Georgian provinces of Abkhazia and South Ossetia. “The argument with the West about this now is only a formality,” said Mukhin. “Russia received a very serious preference as a result of the Kosovo precedent, and the Kremlin is pretty happy with the status quo.”

But even if Russia is only making a show of opposing Kosovo’s independence, it is a little counter intuitive - not to say hypocritical - to deny the legitimacy of Kosovo’s independence while happily embracing the precedent it set. Why not simply throw in the towel, recognize Kosovo and hope the West would be prepared to do the same to South Ossetia and Abkhazia?

Partly, of course, because public opinion in the West would never allow that quid pro quo, and partly because Russia has its own separatist insurgencies that could take advantage of it. “Russia wants only half a precedent,” explained Andrew Wilson of the European Council on Foreign Relations. “It wants it to apply in the South Caucasus, in Abkhazia and South Ossetia, but not in the Russian North Caucuses.” Hence the Kremlin’s attempt to steer a middle course.

Then there is Russia’s relationship with Serbia. The friendship is indeed based on historical tradition and pan-orthodox Slavic fraternity, rather than hard political interests. But that has its own importance, said Mukhin. “There are economic interests – Russia is very active in investing in Serbia – but it’s mostly about tradition, and a question of reputation. If Russia were to abandon Serbia now, it would be a blow to Russia’s reputation all over the world.”
And so the official Russian position remains, as Kirill Gevorgian, Russia’s ambassador to the Netherlands and the leader of the Russian delegation, told the court, that “resolution 1244 remains in force in its entirety. Therefore, no institution has a right to unilaterally declare the independence of Kosovo. Accordingly, the Russian Federation respectfully submits that the [unilateral declaration of independence] was not in accordance with Resolution 1244 of the Security Council.”

But Serbia has another big friend in this matter. China is neither orthodox nor Slavic, and has assumed no historical moral responsibility that obliges it to defend Serbia or look like a turn-coat. But it has an extremely strong interest in opposing the legitimization of separatist movements, and it has argued Serbia’s case at least as vigorously as Russia. Kosovo's declaration "is not in accordance with Resolution 1244 and contravenes the principle of state sovereignty and territorial integrity, therefore, there is no point in saying that international law is neutral in the present case,” Chinese Ambassador Xue Hanqin told the court on December 7, Reuters reported.

And that puts Russia in something of an awkward position with its Eastern neighbor. “According to my information, the Chinese leadership was extremely concerned about the Kosovo precedent, and even more worried about Russia’s recognition of Abkhazia and South Ossetia,” said Mukhin. “We had some problems over that, but managed to overcome them. But Russia still senses that it is a sensitive point in relations with China, and that’s why the Kremlin hasn’t raised the issue in the recent past.”
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