Kosovo: waiting for the ICJ

So Kosovo and Serbia are now waiting for the International Court of Justice to rule on whether Kosovo is independent or not.

Except, not really.

Back in October 2008, the new Government of Serbia asked the ICJ to rule on whether Kosovo’s unilateral declaration of independence (“UDI”) in March 2008 was legal. This was clever in several ways. Internally, the new, relatively liberal and pro-Western Serbian governmnent shored up its flank against certain sorts of nationalist attack. Externally, it showed Serbia being a good, reasonable international citizen by submitting its problem to the highest body of international justice. And tactically, it invited the Court to rule on a narrow issue — was the UDI, done in that way at that time, legal? — rather than the much broader and more fraught question of whether Kosovar independence itself could be legal.

The case went before the Court for several days in December of 2009, with 25 countries submitting oral or written testimony. A decision is expected in summer.

But here’s the thing:the ICJ is very unlikely to deliver a clear opinion.

Think about it. On the broad issue of independence… well, a strong decision either way would be very, very disruptive. And the ICJ historically has not shown itself an agent of disruption. (Yes, there are a couple of exceptions. But they’re just that: exceptions.) An opinion saying clearly that Kosovo could or could not secede would have immediate knock-on effects in a dozen places around the world: Somaliland, Abkhazia, South Ossetia, North Cyprus, Transnistria, Nagorno-Karabakh, you name it. There aren’t a lot of issues more potentially explosive than ethnic self-determination, and that’s what Kosovo is all about.

It is theoretically possible that the Court could come up with a clear and strong opinion while trying to restrict it to the unique facts of this particular case. I don’t think that’s likely, but I don’t think it’s quite impossible either. Let’s say there’s one chance in twenty for that.

So what to expect? Well, I’m not an expert on the ICJ. But my best guess would be

1) a long, rambling, weasel-worded decision that does not arrive at a clear conclusion;


2) a statement that the UDI of March 2008 was defective on procedural grounds, without stating whether a UDI could ever be effective or not.

— I’d actually be sympathetic to (1), because I think the Court is in a really tough situation here. (2) would be stupid and dangerous. It would be telling the Kosovar Albanians to go back and start over after two+ years of handling their own affairs, which is unlikely to go down well. Meanwhile it would invite the Serbs to bring the same issue back to the Court again after the inevitable second UDI. So, no more than a delaying tactic, and a costly one. I hope they don’t go there.

I note in passing that of the fifteen judges on the Court, seven are from countries that have recognized Kosovo and eight are from countries that have not.

— Speaking of which: the current recognition-count for Kosovo stands at 65. That’s a bit more than I thought they’d get (I predicted “between 50 and 60”). New recognitions have slowed down to around one every month or two. If the ICJ opinion is very mushy, Kosovo might pick up a handful of fence-sitters this summer. If it’s strong against them — unlikely but possible — they might lose a few. It’s hard and embarrassing to reverse a recognition, though, so even with a strong opinion that number is not likely to be large.

There are 192 members in the UN, so Kosovo is now just past the one-third mark. The next landmark would be 92 recognitions, a majority. But I think that’s very unlikely for a long time to come.

114 thoughts on “Kosovo: waiting for the ICJ

  1. Leave it to the self-labelled ‘international community’ to complicate things more than they already are in the balkans.

    I hope the icj realizes that the independence is irreversible. This is because the US, Germany, France and the UK have all stamped their name on it. And they will not all go back on their word. US definetely won’t and theyre the most important of the bunch. So the ruling, and taking the case to the icj was a just a way for the serbian gov’t to save face in the eyes of its people and its allies. That’s all, nothing more. I’m quite sure they realize they won’t ever get kosovo back, but now theyre trying to drag it out as long as possible, so that they keep getting some concessions in return for letting go of kosovo. And theyre well on their way with this. Somehow their EU bid is speeding past hurdles on its way, even though only 15 years ago the serbs committed the worst genocide since WWII. So this strategy of handling kosovo is working out well to the advantage of serbia. Respect for their cunning!

  2. Independence may be irreversible, but recognition is something else again.

    It’s not hard to imagine a situation where Kosovo gets “stuck” for many years — recognized by the US and much of Europe, but not by most of the world, and blackballed from joining the EU.

    Doug M.

  3. Meh, they way their economy is, and their lack of industrialization, I don’t think theyre EU material for another 25 years! The new state hasn’t even consolidated its powers yet, and it seems that the state will be cantonized, which is not too good for quick development.

  4. “Lack of industrialization” is not the major problem in Kosovo. (Bad, obsolete industrialization, sure.)

    Cantonisation does not seem to have harmed the Swiss. Again, this is an issue, but it’s not the major problem.

    Kosovo’s economy is definitely weak. It’s in competition with Moldova for the title of “poorest country in Europe”. Per capita income is about 2/3 that of Albania, or about 40% that of Serbia.

    On the other hand, that very weakness has helped protect it in the recent economic crisis. Kosovo is the only country in the region whose economy has continued growing steadily over the last three years. (See, for instance, http://www.balkaninsight.com/en/main/news/22618/). And Kosovo today is richer than EU members Romania or Bulgaria were in the early 1990s.

    They won’t be an EU member for a long time, no. But I’d guess candidacy within 10-12 years — neighboring Macedonia is a candidate already — if the political conflict with Serbia could be resolved.

    Doug M.

  5. True say. Bad industrialization.

    I think its wrong to try to compare kosovo to switzerland. Switzerland wasnt first formed then cantonized. Kosovo is formed, and now its heading to cantonization. Switzerland, didn’t exist at first, then cantons decided to join and make a union of cantons. So the order of things is totally different, and the development of history is different in each place. Also albanians arent germans, and serbs arent frenchmen, and turks arent italians. People can’t be compared like that, theyre not the same (i’m not saying better or worse, just different), so the results of such a cantonization won’t be the same. Bosnia has been proving that cantonization doesn’t work in the balkans for the past 15 years. But anyway, that’s a different topic.

    As for growing economy, its a well known fact that developing countries grow at a faster pace then developed countries. Its hard to go higher when you’re at the top, but when you’re at the bottom you have the whole climb to go. And its wrong that it’s the only country in the region to have grown the past 2 or 3 years. Albania is officially the country with the fastest growth in europe, at about 6% per year, and I may be wrong, but I recall reading that montenegro is right behind it. So kosovo ain’t pulling off any miracles just yet!

    The EU may give them candidacy in 12 years, but that doesn’t mean theyre read. It just continues to show the habit the EU has of accepting countries that are not worthy to be in there in the first place yet, and then dealing with the backlash after. They cut bulgaria’s funds as soon as it joined, due to corruption. Romania has major political problems. Greece has been a member for 25 years and it has crucial problems, and even lying on its economic reporting statements to the EU central institutions. So if the EU gives kosovo candidacy in 12 years, that just means they want them under their sphere of influence where they can control developments in the country as soon as possible, not that kosovo is ready after being independent for less than 15 years (at that point). This is the same reason (although wrong) that theyre speeding up the candidacy of serbia; they fear serbia falling in the russian sphere of influence. Membership in the EU almost means nothing nowadays because there is no focus on achieving the development that germany has for example and being equal to western europe. it’s just join, cuz there is nothing else you’d rather do. (Cyprus is another example, where half the country joined, which is wrong on so many levels).

    I don’t know how you’re measuring that kosovo is richer than bulgaria and romania. Thing is that statistics can be used in whichever way one wants. Kosovo has unemployment of over 40%, but I do believe you that you’ve found some other stats that shows that kosovo is richer than bulgaria! But let’s be realistic and use our own reason, and not just what gets served to us in propoganda.

    Thats just my 2 cents on the topic.

  6. Mirakulous @ Feb. 12, 7:17 P.M. said:

    ‘even though only 15 years ago the serbs committed the worst genocide since WWII.’ Greater than the genocides in Cambodia, East Timor, Rwanda, Sudan? This is dangerous hyperbole.

    The solution for Kosovo is to let Serbia keep Mitrovica in exchange for accepting Kosovo’s secession.

  7. @Richard : I’m sure “mirakulous” meant to say the worst genocide in -Europe-.

    “The solution for Kosovo is to let Serbia keep Mitrovica in exchange for accepting Kosovo’s secession.”

    I’m also sure Kosovars would gladly give N. Mitrovica away, but only in exchange for Presevo. If Serbia wants division along ethnic lines, then it will have to get it on its own skin too.

    Oh, and Kosovo is not asking Serbia to recognize it (or it’s “secession”).

  8. Richard, you’re getting picky for no reason. Yes, I meant the worst genocide in europe. Genocide is just bad, you get the point!!

    I agree with Ermir. They should just do an exchange of serb populated areas of kosovo, for albanian populated areas of serbia, because they won’t find peace otherwise. Serbia will keep trying to have parallel structures, kosovo(the EU really) will keep trying to consolidate the new state’s structures, and they’ll definetely have friction. The EU has to get realistic and realize that YES ethnicity is still a big deal in the Balkans, and the balkans arent swiss, so you cant just cantonize them and hope that it’ll be the next switzerland and an example for all. Joining the EU doesn’t solve the problem either, because its just an illusion that borders will be removed and all people who are the same will be able to live together. That’s a pile of crap.

  9. ‘if Serbia wants division along ethnic lines…’ Are you kidding? The entire breakup of Yugoslavia was based on ethnicity. Further border adjustments a la Mitrovica, Republika Srpska, why not the Albanian portions of Macedonia, would only be finishing the job.

  10. can someone remind me why we are so eager to transfer what was a Serbian internal problem to the EU, at the cost of our political credibility, billions of Euros, related immigration/criminality issues, and the prospect of 1-2m k albanians blaming the EU when they finally realise they are not living in a field of dreams?

  11. Turn the question around: other than being very poor, why is Kosovo a bigger “problem” than any of its neighbors?

    Doug M.

  12. @matey.

    Because the EU loves to stick its nose and “fix” every problem that exists. When they fuck up the accountability should be transferred to them. Since EULEX took over for UNMIK, it became an EU political problem, and if they don’t do it right of course 1-2 m kosovar albanians will be pissed at them, if not more albanians from all around!

  13. The legality issue applies equally to Kosovo and Serbia; until it’s resolved, neither can join the EU.

    Muslim: Bosnia and Albania are both majority-Muslim countries. Note that several current EU members have more Muslim citizens (in absolute terms) than Kosovo.

    Landlocked: Austria, Hungary, Slovakia, Czech Republic. Luxembourg, for goodness’ sake. Come now, that one is just silly.

    Doug M.

  14. @Doug M.

    In absolute terms, but that means nothing. Those muslims in france and germany and the rest of the EU members, are split amongst a much larger nonmuslim majority and have no powers. A majority muslim state in the EU would make decisions and have powers! The muslims in kosovo would make decicions in their state, while the 5 million muslims in france although they are more than kosovo’s 2 million, are a drop in the ocean that is france of 60 million people.Why isn’t Turkey in the EU yet after 40 years of starting accession talks?! But corrupt bulgaria and romania are in!! Let’s not be so idealistic. Practice differs from theory and the nice speeches that EU leaders give out.

  15. “A majority muslim state in the EU would make decisions and have powers!”

    Oh, the horror.

    — So you think Bosnia and Albania will be kept out indefinitely? Really?

    Doug M.

  16. No i don’t. But I do think they’ll never have the status of say Luxembourg, and they’ll always be second class citizens, when they do end up getting in! It’ll take a while, believe that! As I mentioned above, its no coincidence that christian serbia applied for candidacy only 15 years after the balkan wars and when it still poses a problem to stability in the region! Bosnia is just a mess!!

  17. The combination speaks against Kosovo. And yes, Albania will be kept out for a long time, as will be Turkey. And nobody knows the future of Bosnia. Like it or not, a muslim majority is a problem.

  18. Not really sure what the point of this post is – the OP is clearly not a legal expert. another excuse for a pointless polarising debate on Kosovo?

  19. “The entire breakup of Yugoslavia was based on ethnicity. ”

    I’m afraid this is not so, and in fact a big reason why the breakup descended into war is that the constituent republics of Yugoslavia did not correspond to ethnic divisions.

  20. “Muslim: Bosnia and Albania are both majority-Muslim countries”

    Incorrect, as regards to Bosnia. Although a census hasn’t been done since 1991, for various reasons, estimates for the current Bosniak population range from 45% to 48%.

  21. “Oh, and Kosovo is not asking Serbia to recognize it (or it’s “secession”).”

    I’m not sure what you meant by this – until it resolves certain issues with Serbia, Kosovo is going to remain excluded from most international institutions and is going to find progress exceedingly difficult. The same is true for Serbia of course but I daresay it’s in a slightly more advantageous position at the moment.

    As for the scare quotes around secession – what else would you call it?

  22. @ Sawyer: “Driven by” ethnicity might perhaps be better here.

    Bosnia: good point; it’s cavalier of me to just assert that Bosnia is majority Muslim when the fact is that nobody knows. On the other hand, estimates of 45% to 48% are dubious; the error bars are larger than that. The central Bosnian government has difficulty even collecting basic data on births and deaths, never mind on emigration. And censuses, even at a local level, are intensely political acts. So current estimates of population are pretty squishy.

    To give just one example, everyone agrees that the number of Bosnian Croats had decreased significantly since Dayton. But nobody really knows by how much. Estimates of the number of Herzegovci Croats in Split and Zagreb run as high as a couple of hundred thousand — which would be enough to reduce the Croat population in Bosnia to single digits. But nobody knows for sure, in part because most of these people have two passports, and many of them move freely back and forth across the border.

    Birthrates for all three groups are very low, so population shifts will happen by differential immigration. And, to simplify a complex situation, Bosnian Serbs and Croats have neighboring countries that will hand them a passport and take them in, no questions asked. Bosniaks, not. So if Bosnia isn’t majority-Bosniak already, it almost certainly will be by the time it joins the EU.

    — That said, “majority Muslim” will still be squishy, because there’s a significant minority of Bosniaks who identify as “Bosniak” but not “Muslim”. But now we’re getting deep into the weeds.

    Doug M.

  23. Albanians are not majority muslim. Put it in your brain, people. And even those who are would not like to be put in the same category as Bosnians. If you can’t understand this much you are just a poor troll with no clue about the Balkans.

    And yeah, Kosovo has never asked Serbia for any recognition, as it was Russia who blocked the Ahtisaari plan. Serbia is a just a pawn in PutinMan’s game.

    Sawyer, to get membership in international institutions Kosovo only needs the recognition of (at least the majority of) the members of that particular organisation. If you haven’t noticed that Kosovo has already become member of IMF and WB….well, keep trolling. Serbia isn’t blocking Kosovo into anywhere, Russia is.

    Oliver, Albania is well ahead of Serbia when it comes to EU integration…Serbia is dead last along with Bosnia and Kosovo, i.e where local Serbs are used to destabilize. I know it’s hard to swallow for you islamophobic fascists, but reality is not your wet dream. Btw, I am a Catholic turned into an atheist, so spare me your crap.

    As for the ICJ and and it’s ruling…it will hardly be anything clear and decivise. So, as long as it will NOT declare the UDI as illegal, it will work great for Kosovo.

    Btw, happy independence day to the Kosovars 😉

  24. “Albanians are not majority muslim.”

    Um… what the hell? Kosovar Albanians are about 90% formally Muslim, plus small minorities of Catholics and professed atheists.

    Now, you can argue that most Kosovar Muslims are not very devout, and I won’t think of disagreeing. Most Kosovars drink alcohol with enthusiasm, nobody wears the veil, very few people pray to Mecca five times per day (or once for that matter) and the mosques are not exactly packed every Friday.

    However, the majority of them at least self-identify as Muslim, even if all that means is that they don’t eat pork if their mother is watching. People who identify first as secular or atheist exist, but are rare.

    Albania proper is more like 60% Muslim, with the rest being a mix of Orthodox and Catholic. Again, few people are particularly devout — “the relgion of Albanians is Albanianism” — but the majority will at least say “sure, I’m Muslim”.

    Doug M.

  25. “to get membership in international institutions Kosovo only needs the recognition of (at least the majority of) the members of that particular organisation”

    That depends on the rules of the particular institution. You’ll notice that Kosovo is not yet a member of the United Nations, the OSCE, the Council of Europe, or NATO. (Or, much more seriously, of Eurovision. Heartbreaking.)

    “Albania is well ahead of Serbia when it comes to EU integration…”

    I’d be interested to see a cite for this.

    Doug M.

  26. I also disagree that albania is ahead of serbia on integration. Albania hasnt even gotten visa liberalization yet, and serbia got it late last year. For the most western country in the balkans that it is, albania hasnt gotten far at all in its integration.

  27. Until the ICJ decides, the rest is speculation. A decision against independence would surely piss off a number of countries, so if what is likely to happen is based on this fact, then the ICJ does not look like an impartial judge.
    IMHO, the 1974 Helsinki act is quite clear on borders. The original Ahtisaari plan to end the bombing also explicitly stated that Kossovo would remain in Yugoslavia. One might say it’s ok to fool Milosevic, but the point is that if the West does not keep its promises, this justifies people like Akhmadinezad’s distrust of any proposed deal.
    I really do not know how the ICJ will decide. I have to say though that Serbia is winning the PR war, because it has shown a very moderate, compromising face, while Kossovo’s position is:
    we are backed up by the US, so we don’t even talk to you.
    People also start to realize that the Serbs have been demonized well beyind what they deserved: General McCrystal apologized to the Afhgans over the death of 12 civilians in the ongoing operation against the Taliban, calling civilian losses “absolutely unacceptable” and calling for more caution in operations. I recall no similar statement during the 80-day bombing of Yugoslavia(which, unlike Afghanistan, was fighting, rather than aiding AlQueda), just that “bombing should intensify”.
    Apparently Serb civilian casulaties are ok; moslem civilian casualties are not.

  28. “I recall no similar statement during the 80-day bombing of Yugoslavia”

    Then you weren’t paying much attention. NATO forces apologized on multiple occasions. To give just one example, the Grdelica train bombing:

    ‘it was an unfortunate incident which [the pilot], and the crew, and all of us very much regret… it is one of those regrettable things that happen in a campaign like this and we are all very sorry for it… We never wanted to destroy that train or kill its occupants [and] we regret this accident.’

    This is not to say that everything about the 1999 war was hunky-dory. But apologies there were, in plenty.

    “Yugoslavia(which, unlike Afghanistan, was fighting, rather than aiding AlQueda)”

    LOL. Cite for this?

    (And no, “Wahabists in Bosnia” don’t count.)

    Doug M.

  29. “But now we’re getting deep into the weeds.”

    That’s where things get interesting.

    (Btw, bring out the disemvoweller for the comment from “pete” at 12:58, above?)

  30. Nope, just deleted him.

    Kids, freelancing — I’m maybe not as patient as I used to be.

    Doug M.

  31. Really? Is this what’s going to be allowed to happen here now? Doesn’t seem that professional.

    Hey Pete, if you have anger towards someone go hash it out. Yelling ignorant comments online doesnt do anything. If you have the balls go do something about it.
    Respect for Milosevic? Respect is earned, its not just given. So how are you just asking for respect?!! You must be dumb.

  32. P.S. I believe its “shqiptar” not “shiptar”. Ignorance is priceless…in a funny way. lol

  33. Hahaha. So Tirana, you’re a serb pretending to be an albanian and you took on a nickname with little creativity, and you’re trying to somehow link albanians with the middle east?? LOL

  34. Mirakulous, who is this “Pete” you speak of?

    Again, I’m less patient with this stuff than I used to be. Boom, gone.

    Doug M.

  35. So, just a gentle reminder. This is a moderated forum. Obnoxious behavior, including ethnic slurs, will get you deleted. Anonymous commenting is fine; trolling is not.

    Blah blah, you all know this stuff already. Boils down to “play nice, please”.

    Doug M.

  36. “we regret this accident.’”
    Yes, after every such “collateral damage” there was a statement of regret, but it was accompanied by “thus, the bombing campaign must intensify”(Translation : Yes, we did cause collateral damage and we will continue causing even more, especially since we ran out of military targets and bomb civilian targets exclusively). So this is hardly a sincere statement and just adds insult to injury. At no point was there a statement that “civilian casualties are unacceptable”, as in the current campaign in Afghanistan, since moslem civilian lives are important, Serb civilian lives are not.

    “Yugoslavia(which, unlike Afghanistan, was fighting, rather than aiding AlQueda)
    LOL. Cite for this?”
    See http://www.adnkronos.com/AKI/English/Security/?id=3.0.2928330465
    “Thousands of mujahadeen from Islamic countries came to Bosnia in the early 1990s to fight with local Muslims and many remained in the country after the war, acquiring Bosnian citizenship.”
    Also see:
    I could give you more, but you do not need much to figure out how people grabbed in Bosnia as part of the US rendition program ended up there, do you?

  37. just think the icj will find something on the historical handing over of kosovo to serbia after wwl and the illegality of that process. 2. 1244 states kosovo will stay apart of yugoslavia, “what yugoslavia”? serbia is not yugoslavia its serbia. yugoslavia is no more which means kosovo is its own country based on the fact that the other majorities in the balkans form there own countries. this is what leads me back to my first thought, wwl. if kosovo had not been split from its majority then there would have been no kosovo or kosovo war. but unfortunately then just like today we have these religious fantastics who group them selves in to the good vs evil nonsense. an again the muslims are the evil. so thank the turks and islam and the good europeans the christians for making a mess of the albanians and there lands. GOOD JOB‚ GGGOOOOOO! RELIGION!!!!!

  38. There are multiple unconfirmed reports that Khalid Sheikh Mohammed was in Bosnia under an assumed name. Maybe he was, maybe not, we may never know for sure — he moved around a lot, and had something like forty different aliases.

    From this we jump to Slobodan Milosevic, defender of Western Civilization, fighting the Muslim Hordes.

    Then there’s your other link. “Why is there a memorial in ARABIC!?! Nobody in Bosnia speaks ARAB!!!”

    It’s in Arabic because most of the dead were Muslim, and that’s the language of the Koran. It’s exactly as if the dead were Catholics, and the monument said “Requiescat in Pacem”. (“Why is it in LATIN!? NOBODY in Bosnia etc.”)

    To even ask the question shows deep, broad and willful ignorance. The stupid, it burns.

    Doug M.

  39. Nebojsa Malic! I didn’t realize he was still around.

    My, there’s some psychological projection going on there.

    Doug M.

  40. “That said, “majority Muslim” will still be squishy, because there’s a significant minority of Bosniaks who identify as “Bosniak” but not “Muslim”. But now we’re getting deep into the weeds.”

    Important to remember, as in your comment about the Kosovar Muslims, that we’re talking about possibly the least fundamentalist strain of Islam imaginable. Bosniaks, for the most part, are the Muslim equivalents of Christmas-and-Easter Catholics or secular Jews, with completely relaxed norms of behaviour and mostly cultural adherence to a few choice rules (such as the pork thing). And even though there’s been a long and concerted effort to make Bosniaks more traditionally Islamic, it’s not been especially successful – Sarajevo is full of mosques, newly built with Saudi money, that are gapingly empty even on Fridays.

    Balkan Islam is, then, really just like Balkan Christianity – a kind of very mellow and not especially aggressive religious tradition.

  41. @ haha: awesome. I remember when he cited the Lord of the Rings movies as proof for libertarianism…

    @ sawyer: yes and no.

    Yes, you’re right, Bosnian Islam is about the most easy-going, mild-mannered Islam in the world. (With Albanian Islam a close second.) Bosnians were always rakia-drinking, mosque-ignoring, bikini-wearing, mostly secular Europeans. This is why mouth-breathing attempts to paint the Bosnians as JIHADIS! are so damn stupid. They’re about as likely to embrace al Qaeda as the French are to become Seventh Day Adventists.

    (There’s also a class aspect to it all. During Turkish times, the Muslims were the landholders and urban elites, while Bosnian Serbs were peasants. Communism broke up the estates, but the class difference remained acute — Bosniaks tended to be professionals and businessmen, while Serbs were soldiers, cops, and farmers. Bosniaks were much more likely to have been educated abroad, or to have lived there. So they were in many respects more “European” than either the Bosnian Serbs or the Bosnian Croats.)

    Balkan Christianity is more of a mixed bag. The Orthodox Church in Serbia has a lot to answer for, as does the Catholic Church in Croatia. Both unquestioningly supported the aggressive nationalist enterprises of the 1990s, and both remain actively hostile to liberalism and reconciliation. I’m not sure you could characterize either Croat Catholicism or Serbian Orthodoxy as a “very mellow and not especially aggressive religious tradition”.

    Doug M.

  42. This a little soft on the Bosniaks. Alija Izetbegović could not be classified as an easy-going Muslim and had a definite plan for Bosnia.

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