Dr. Anton G.O. Smitsendonk
On July 22, 2010, the International Court of Justice (ICJ) delievered its long-awated opinion on the proposition referred by the U.N. General Assembly: ". . . the declaration of [Kosovo's] independence of the 17th of February 2008 did not violate general international law." By a vote of 10 to 4, with ICJ President Hisashi Owada voting with the majority, the Court concluded that it did not. Four of the judges appended stinging dissenting opinions, describing how that Court had not only avoided the question put before it but had gone out its way to do so.
Predictably, the countries (led by the U.S.) favoring Kosovo's independence pounced on the ruling as a vindication of their position. On the other hand a flood of recognitions -- which many observers though would ensue in the wake of an opinion favorable to Kosovo's secession -- has yet to materialize.
An aspect that has received far less attention than it deserves is one ruse central to the Court's opinion (such as it is): that when the Albanian members of the Provisional Institutions of Self-Government (PISG) operating under, and subject to, United Nations authority issued their declaration, they somehow were not really the PISG, but a generic representative of the will of the non-existent nation of Kosovo. To anyone familiar with the specifics of legal authority in Kosovo (such as it is), the assertion is no less than surreal.
It is precisely in that spirit of surrealism that the ICJ opinion -- as personified by Judge Owada -- now receives its most penetrating analysis. Ambassador Anton Smitsendonk is former career diplomat of the Kingdom of the Netherlands, including among his postings Ambassador to China. Transcending usual legal analysis Ambassador Smitsendonk adds an artful approach in order to point out the legal weakness of the Court’s ruse in its Kosovo advisory opinion.
James George Jatras
Director, American Council for Kosovo
THE COURT PRESIDENT’S DREAMIt had been an unpleasant morning for His Excellency the President of the International Court of Justice: a staff conference about personnel problems followed by a discussion of the budget which would not increase in line with the expanded workload. Those topics had been followed by a short, now nearly daily, update on the Kosovo Unilateral Declaration of Independence. The International Court of Justice in The Hague at the request of the United Nations General Assembly was expected to issue an Advisory Opinion shortly.
It was a difficult matter. Judging by outward visible facts, the Kosovo Assembly when it voted on that Declaration had clearly acted against the legal settings which were binding it. The Assembly was one of the Provisional Authorities set up by the United Nations under Security Council Resolution 1244. That Resolution and all the rulings under it were made with the intent of giving the Kosovo people an opportunity to achieve a decent degree of self government, pending an ultimate peaceful negotiated solution to which both parties were asked to cooperate. Kosovo would in the meantime remain under Serbian sovereignty, but Serbia would not exercise such authority.
The negotiations however, both between the two contrasting parties involved and in the UN Security Council were experiencing a long stalemate. Could then the Court realistically now issue an advisory opinion along the classical lines of international and UN law?
Some judges thought they saw a better way to accommodate the aspirations of the Kosovo people. They had a “brainwave”: The UDI (Unilateral Declaration of Independence) might – in their line or arguing - look like voted upon by the Kosovo provisional Assembly. In reality, however, - those judges said - the makers of the Declaration acted in a very different capacity, one might say different personal identity. How can that be? At the hour of voting on the UDI – the judges continue - they acted in an entirely new capacity, as leading citizens, in full freedom, mandated in some way by their friends and local communities only bound by an implied mandate they felt they had from the population at large.
A daring invention. A brainwave. Could it pass criticisms in the world’s legal community? In academia? Would its implications not create havoc in the world? Scotland, Catalonia, the Hungarians in various countries, Tibet, Georgia, you name it . . . ?
The judges were by no means united behind the idea. Nearly all of them followed the position of their nation’s government. Such a line-up could well undercut the Court’s independence and global authority for a long time to come. The Court’s President felt he would have to operate with caution. But a decision could no longer be delayed.
After that wary early morning session the President felt the need for a break out and a quiet hour of reflection. With only two of the Kosovo case drafts he left his office and made his way to the “Japanese Room” in The Hague’s Peace Palace.
The room is spacious and in great style with tropical wood panelling on the walls and very fine Japanese silk mural embroideries. It was a gift from the Japanese Emperor, like other precious objects in the Palace had been sent by the Tsar of Russia, the German Emperor, the President of the United States.
The hall had the quietness appropriate for a moment of reflection.
On a day when no visitors were crowding the corridors only a few dependants of the Court greeted the President. The Japanese Room was empty, except for a cleaning woman, who, when she understood the intention of the Chief Judge, left the room quietly
The President sighed, looked a moment at the papers he had taken with him, But he did not feel an urge to delve again into the documents. He pretty well knew them by heart. He needed to reflect on the wider picture.
From his comfortable chair on the rostrum he looked into the dark corners at the far end of the hall and tried to guess what would be the impact under various directions which the court could take. On Kosovo, but also on the world at large.
The Kosovo case would also count as important in the Chief Justice’s biography, when he should have to leave at the end of his twelve years’ stint in the World Court. For His Excellency Owada not a matter of indifference.
Now was not the moment to focus on the more technical legal sides. Hisashi Owada had been always involved in the much bigger picture, as a young professor in Japan, and in the United States, as a high diplomat in various countries and in the OECD in Paris. Always close to the centres of power, and now also - by marriage - also to the Imperial House of his own country. This was not a moment to retreat to the technical corners of legal thinking. Core issues should be boldly addressed. Owada felt he needed to let his thoughts fly freely, soar wherever they would take him. The majestic silk embroidered butterfly on the wall would be his inspiration. He felt already the daily noises ebb away, and the broader waves of world history streaming in.
The two papers he shoved brusquely aside. He rested his head a moment on his arms. And now he noticed how the hall was becoming larger, and at the same time more spare and sober in construction, nearly like a railway station. The rows of seats in front of him were not any more the fine craftsman’s work of a century ago, the gift of an Emperor or a President, but more like sober, modern factory products. The chairs were also arranged in a different way, not in straight rows, but in semi circles, one behind the other until the far end of the hall. He noticed that many seats had been taken by boisterous men in dark suits, with only a few women present. From three sides more people were streaming in as for an urgent political session.
The rostrum where he was sitting now felt also different. It was at a higher level appropriate for a parliament. Clearly people awaited him to perform a function. He was to preside over a meeting of the Kosovo parliament.
Parliamentary assistants were looking towards him. He had to act. Trusting his good star, the President rang the bell. People were now looking up to him and he started as follows:
“Ladies and Gentlemen!
“We have one highly important task in front of us today. Yet I have to start with a few matters which seem only household matters. They may seem unimportant for a moment, but you will easily understand how they might deeply affect the outcome of today’s action.
“We cannot risk that our Declaration of Independence be found illegal and conflicting with the UN rulings and with SC 1244.
“Therefore I am with your permission to close this hall and withdraw this building for three days from its normal destination as the official seat of the Kosovo National Assembly. For these three days our building will bear another name: the ‘Kosovo Independence Memorial Hall.’
“Signing now with your permission that decision this will be the last act I shall perform for three days as Chairman of the Assembly. Our work as Assembly will resume on the fourth working day from today.”
Astonishment was visible on the faces turned to him, and some of the members were turning to each other with questions, but silence returned remarkably quickly, since nobody could find any explanation from colleagues for this unexpected presidential action.
The president proceeded by handing to an usher the signed decision to be copied and to be posted immediately on all outside doors of the building.
While taking the document in his hands the usher whispered a word in his ears.
The President nodded and continued:
“In order to make our convening today as the makers of Kosovo’s independence completely transparent and legal I request you not to sit at your usual places in this hall. Choose any other place. Do not to sit by your party affiliation. Sitting by region or at free choice is fine.
“We are today to operate outside any parliamentary proceedings.
“We today assume another identity, being nothing else than a group of concerned leading citizens who find thrust upon them, by popular mandate, an urgent task which does not brook any further delay.”
It was as if the crowd in front of the President was heaving a sigh of relief.
After the first moments of hesitation the parliamentarians realized that their chairman was still their true leader concerned to bring the declaration of independence into safe harbour.
In him, the major legal expert in their nation confidence among the group was fully intact. Sensing that even simple modalities were now important they even refrained from asking questions, since any show of difference might alter the way how the outside world was going to see their action of the day.
There were around the hall even moments of laughter, of people walking and getting to sit in unaccustomed seats sometimes next to a former party opponent. Some were even exploring whether they found some relinquished papers in the desk of their new seat, at the same time hoping they had not left any compromising paper or items in their own desks.
The president continued:
“As to the text which we have prepared, that can remain unaltered, but I must warn you that when the moment of signing comes in no circumstance you must sing as members of parliament. You may add to your name leader of a group of citizens from Prizren, Blace, Pec, Glogovac, Klina or whatever place you are comfortable with.
“In this way it will be clear to the world and for the future that today we act outside the present legal structures which had been imposed on us.
“You know full well that under those structures of the Provisional Authorities we can never get the independence which Ahtisaari promised us.
“As long as we are acting under the banner of Security Council Resolution 1244 of 1999 our declaration of independence would be killed in the bud or rejected by the Special Representative, to be further attacked as null and void in international legal courts.
“We must make history not by continuation but by irruption, like today we are assembled here by irruption, not as the Kosovo parliament but as citizens of Kosovo, irrupting into a building which was until yesterday our Parliament, and now is the Independence Memorial Hall.
“Think of yourselves more in the fashion of the nobles and merchants of Holland when irruption in a monastery of Utrecht to sign their declaration and make themselves free from Spanish domination, or like the American revolutionaries disconnecting their country from the British Crown, or if you just like Sukarno and Hatta who signed a paper in a simple suburban house. We make a rupture with history. Only then we can hope to rupture the bonds which otherwise might tie us to Security Council resolution 1244. We shall be free.”
After their earlier surprises the assembly quieted down. Some were already feeling for the various fountain pens or ballpoints brought from home in order to give later to their children as the “pens with which the Kosovo Unilateral Declaration of Independence was to be signed”.
The rays of sunshine in the smaller Session Room of the Peace Palace in the Hague had shifted, and were now directly on the white papers in front of the President.
He made deep sigh and lifted his head.
He felt no need anymore to take a look at those papers he had brought with him.
He stood up, walked down the two steps from the rostrum. With a brisk pace he left the audition hall, passed the cleaning woman who could now resume her work, and entered his modern office where people were waiting for him.
People were happy to see a smile on the face of the man who looked often stern and seemed so often abrasive.
It seemed the President now knew what to do . . .
Had the various prudent measures which appeared in the dream of Justice Owada been followed by the Kosovo Assembly as it prepared itself for its Unilateral Declaration of Independence, there might have been a chance that the world would see them in their new true “identity” as free national leaders mandated to call for independence. Free from all the links which bound them to the UN, its SC-1244 resolution which otherwise might put them on collision course with international law.
But were those measures taken? No. They were not:
- The Kosovo Assembly was NOT closed for the day. The parliament was really in full official session.
- The name of the building had not been changed from “Assembly” into “Independence Memorial Hall”. It was still the Assembly.
- The parliamentarians were sitting in their normal places by parties around the hemicycle and not broken up in any effort to show they were now assuming a totally new configuration.
- The Declaration of Independence was signed by the participants in their usual quality as members of the Assembly, not as members of a radically new group of leading citizens mandated by the Kosovo people for an entirely new enterprise, outside the existing legal framework of Serbia and of the United Nations.
The Kosovo parliament therefore did not succeed in breaking the links which tied it irrevocably to the SC 1244 resolution.
The ICJ’s “Advisory Opinion” contains only a very weak reflection of the strong dream of the Court’s President. The Court’s attempt to show the assembly members in totally new clothes as leaders of a brand new legal entity remains unintelligible. The court does not get beyond a weak attempt to assume an “intent” which remains without tangible proof.
None of the legal objections against the UDI of Kosovo is therefore put aside.
Nothing has changed in the status of Kosovo as a province of Serbia, and the Provisional Administration continues under the ruling of the Security Council.
The butterfly on the wall in the Japanese Room of the Peace Palace had indeed inspired President Owada mightily. But it had wilted on the wall.
The Court’s advisory opinion offers no guidance for those countries which feel they have to make decisions.
Beijing – Paris