Day: April 17, 2024
Kosovo is more qualified than Serbia
Serbia is currently engaged in a ferocious campaign to block Kosovo membership in the Council of Europe (CoE). This is despite an explicit commitment in the February agreement the Americans and Europeans claim is legally binding not to do that for any international organizations:
Serbia will not object to Kosovo’s membership in any international organisation.
https://www.eeas.europa.eu/eeas/belgrade-pristina-dialogue-agreement-path-normalisation-between-kosovo-and-serbia_en
The merits of the case
I don’t know if the CoE will admit Kosovo later this spring. It certainly should. The main CoE qualification is rule of law:
Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms.
https://rm.coe.int/1680306052#:~:text=Every%20member%20of%20the%20Council,as%20specified%20in%20Chapter%20I.
Kosovo has been steadily improving and ranks above the median regional average on eight dimensions of rule of law. It is third in the region, slightly behind Montenegro and more behind Georgia, but well ahead of Serbia’s declining scores. Pristina recently resolved a major complaint. It recognized the Decan/i monastery’s property rights, an issue outstanding for more than 20 years. Corruption, regulatory enforcement, and criminal justice are its weakest dimensions. All of these are symptoms of a new and relatively weak state.
Benefits for Serbs
The main purpose of the CoE is
To promote democracy, human rights and the rule of law across Europe and beyond
In principle, you would think that people who really are discriminated against would welcome their country’s membership in such an organization. Instead, Belgrade is dead set against it.
The issue is not only one of ideals. There are practical consequences of CoE membership. It opens to citizens access to the European Court of Human Rights (ECHR). That is a serious privilege. If a national justice system fails in the eyes of a citizen of a member state of the CoE, that citizen can appeal to the ECHR, which has a strong tradition of ruling in favor of equality and non-discrimination, including the Balkans. That doesn’t mean its decisions are always implemented, as Bosnians will be anxious to tell you, but it does strengthen those who suffer discrimination. Member states can also file complaints against other member states, another privilege that Belgrade should welcome.
Why not?
Belgrade opposes Kosovo CoE membership for several reasons. First, Belgrade doesn’t want to acknowledge that Kosovo is a state. Second, it fears that Kosovo will file complaints against Serbia. There is ample reason for such complaints stemming from discrimination and other human rights violations against the Albanian majority inside Serbia, the treatment of Kosovo citizens in Serbia, and the failure of Serbia to account properly for its wartime malfeasance in Kosovo.
Third, Belgrade is also trying to pressure Kosovo into creating an Association of Serb-majority Municipalities, which it sees as important to formalizing its relationship with the Serb population inside Kosovo. The CoE Parliamentary Assembly regards this as an issue Kosovo should resolve after membership. Such minority associations are common among CoE member states and Kosovo has promised to create one. But it quite reasonably doesn’t want to do so until Serbia acknowledges its sovereignty and territorial integrity.
Bottom line
The sad fact is that non-member Kosovo today is more qualified for CoE membership than current member Serbia. It is high time to fix that.
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Proactive would be better
Tehran is justifying its barrage of more than 300 drones, cruise and ballistic missiles fired at Israel last weekend as “proportional” to the provocation. That provocation was an Israeli attack on an Iranian consular facility in Damascus that killed high-ranking officers of the Islamic Revolutionary Guard Corps (IRGC). Israel is justifying its 6-month attack on Gaza that has killed more than 30,000 Palestinians as proportional to its military objective. That is to destroy Hamas. Proportionality is obviously in the eye of the beholder
It shouldn’t be so
This is a serious limitation of the international regime. It sets up norms like proportionality but then leaves compliance to interested belligerents. Some Israelis will no doubt argue that proportionality requires a further response to the Iranian attack with more than 300 flying weapons. Assuming the Israelis are technically better and luckier in their targeting than the Iranians, an Israeli attack with even fewer could kill a lot of Iranians. Then the Iranians would want to kill just as many Israelis. The escalation ladder has no obvious limit.
The international system needs a better way of dealing with proportionality. It should not be left to belligerents to decide. Nor should a decision on proportionality come during court proceedings likely many years after the military action. We need norms, along with a way of convening a discussion of how to apply them to particular circumstances during a crisis.
It’s not only proportionality
Proportionality is today’s issue, but there are many others when it comes to military action and mass violence more generally. The UN has defined aggression, but like proportionality “aggression” may also be in the eye of the beholder. The Russian attack on Ukraine is aggression from President Zelensky’s perspective, but not from President Putin’s.
“Genocide” is likewise well-defined, but application of that definition to particular cases arouses a good deal of debate.
Ditto “responsibility to protect,” a UN General Assembly-endorsed doctrine. It requires states to protect their own civilian populations or risk international intervention that the Security Council authorizes.
The lawyerly approach to such issues is to rely on case law. Decisions in particular cases become precedents for future cases. But that process leaves a great deal of uncertainty and delay. What we need is a much more timely, even anticipatory process.
Proactive would be better
That is not impossible. The legal profession could provide mechanisms that provide guidelines and press belligerents to follow them even during a conflict. The International Court of Justice (ICJ) is trying something of this sort with the Gaza conflict. It has responded with unusual speed to the South African complaint against Israel for violation of the genocide convention.
A less formal process might also work. The ICJ of necessity requires elaborate judicial proceedings. The Elders, a group of former world leaders already engaged on conflict issues, could become less reactive and more proactive. The UN’s International Law Commission could likewise take on this responsibility. The legal profession could also constitute an international nongovernmental group to advise on conflict issues before the shooting starts. Proactive would be better.
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