A Troubled Peace/Interview

Professor Alfred P. Rubin

The Legal Realities of Keeping the Peace

Alfred P. Rubin, distinguished professor of international law at the Fletcher School of Law and Diplomacy, is the author of Ethics and Authority in International Law. An attorney, he is also chairman of the executive committee of the American Branch of the International Law Association. Editor Michele Gouveia spoke with Professor Rubin about Kosovo and the legal realities of keeping the peace in that region.

Q: In June 1999, an agreement was reached between NATO and the former Republic of Yugoslavia upon which an international civilian administration was set up in Kosovo, under the auspices of the Secretary General's office of the UN. Subsequently, NATO forces known as KFOR, which includes troops from the United States, the United Kingdom, France and Russia, are involved in peacekeeping efforts in Kosovo. This was an unprecedented operation for the UN. What authority do they have in setting up an acting government in a country?

A: I don't know what authority the UN has for doing this. In order to pass a vote through the Security Council you need not only the votes or abstentions of the five permanent members-and, of course, China is a permanent member with a veto-but you also need the affirmative votes of at least four of the ten elected members; a total of nine votes is needed to pass any resolution. I don't know what problems might be there.

The situation in Kosovo is a most peculiar one. The UN General Assembly has passed a resolution that indicates that Kosovo is still part of the former Yugoslavia. This raises all sorts of legal questions like, Who makes the law in Kosovo? Who runs the courts? What laws do the courts apply? Let's suppose you're dealing with a simple matter. If somebody dies, and people do, who inherits the estate? Does it go to the eldest son or does it go to the whole family in equal shares, or how much of the share goes to the wife or the husband? Suppose the law's found to be inadequate. Who changes the law? As far as I know, nobody has focused on these issues. I do wish that they had consulted with lawyers beforehand. They are taking the view that the law doesn't matter, but they'll find out that they're wrong.

Q: Decisions are being made in Kosovo by both the UN and NATO. If there were a conflict over a certain issue, who would have the ultimate decision?

A: Nobody. Under the UN charter, which is a treaty, the commitments to the UN trump anyone else's commitments. But, under Articles 52 and 53 of the UN Charter, regional organizations may exist but they may not participate in so-called peacekeeping operations. Those are reserved for the Security Council of the UN. As far as I know, the Security Council has never called upon NATO to bomb Kosovo or anywhere else, which means that the powers involved in NATO are probably engaged in illegal activities. The government of the former Yugoslavia, headed by President Vojislav Kostunica, has in fact sued all of the NATO members before the International Court of Justice claiming that they're exceeding their authority and violating the UN Charter by bombing the former Yugoslavia. The court has refused to issue the interim decrees that the former Yugoslavia wanted, which would have required NATO to simply withdraw and stop whatever it's doing at once. The reasoning was that the incidents began before the former Yugoslav government submitted itself to the court, and that the current incidents are simply continuations of the earlier ones, therefore everything dates back to an earlier time. I find that logic extremely difficult to follow. I think it looks much more like evasiveness by the court. Moreover, some of the NATO partners, like the U.S., have withdrawn from the jurisdiction of the court, and without jurisdiction the court has no authority over us. I think there's a major crisis going on. What it looks like to me is the U.S. and its more powerful allies reforming what in the nineteenth century was called the "Concert of Europe," under which we make law applicable to them, but heaven forbid that they should ever appeal to the agreed bodies to apply the same laws to us. It didn't work in the nineteenth century, and I'm not at all convinced that it will work today. But many people are deeply convinced that we are right about everything.

Q: So we are looking at a case of history repeating itself?

A: I think so. Not as farce, but as tragedy.

Q: In May 1999, Mary Robinson, the UN High Commissioner for Human Rights, filed a report blaming the former Republic of Yugoslavia for "gross violations" of human rights in Kosovo. Subsequently, Slobodan Milosevic and others were indicted by the International Criminal Tribunal, which was set up in The Hague specifically for the former Yugoslavia, for crimes against humanity. How does one go about charging a former president of a country with these types of crimes and whose responsibility is it to arrest him?

A: The responsibility for charging him with the crimes belongs to the Prosecutor and that's all settled in the treaty that was negotiated and agreed upon at Dayton, which raises all sorts of problems that nobody seems to want to focus on as well. For example, it's frequently forgotten that the U.S. is not a party to the Dayton Accords, nor are we a party to the part of the agreement under which Milosevic could speak on some matters for Karadzic. We're not parties to any of those; therefore, I don't see where we get off interpreting those treaties or saying what they really mean. Nonetheless, we do, and that's a fact of life. Under those arrangements the Prosecutor can propose the indictments and they go through a technical procedure and Milosevic in fact has been indicted.

Now, there are all sorts of problems with that delegation of authority. There is a serious question of the objectivity of the Tribunal, despite the fact that a number of people in the Tribunal-judges and others-are of undoubted probity. But no tribunal exists independently of politics, not even the U.S. Supreme Court.

Under the Dayton Accords and the other provisions that set up the Tribunal, every country is supposed to cooperate with the Tribunal. I presume that means that the former Yugoslavia is supposed to arrest Milosevic. But Kostunica has already said he's not going to do it; he doesn't recognize the authority of the Tribunal and never has. So what country is prepared to have its young people die and upset a political balance in the former Yugoslavia? To perform arrests that a large part of the local population is going to deeply resent? It doesn't matter that Milosevic is a villain; he might well be a villain for all I know but this begs the question, Who's going to succeed him? People tend to forget that Kostunica is not a liberal democrat. One of the problems that is always confronting people in these situations, which they always ignore, is that if you get rid of the villain, who succeeds him?

There are other questions that must be asked. If Milosevic should be arrested as an accused war criminal, does the Tribunal's authority only extend to the former Yugoslavia? Suppose we have an international criminal court that applies worldwide, who's going to arrest the Russians who are responsible for atrocities in Chechnya? Who is going to arrest the Chechens who are responsible for atrocities against the Russians? How is this supposed to work?

A: Is there an alternative, better way to handle people who are accused of human rights violations?

Q: Yes. It seems to me that human rights are not rights in the legal order, they're rights in the moral order, and it seems to me the best answer for people who violate morality is publicity. I would focus on getting the maximum publicity, not to get Milosevic, but to make sure that he can't get out of the former Yugoslavia because nobody will give him the visa; nobody will have him.

It reminds me of the situation of the former president of Austria, Kurt Waldheim, who has never been convicted of anything. He is spending his old age presumably skiing in Innsbruck; there are worse places to spend your old age. But he can't get out of Austria because nobody will have him. And if he goes out it's only on the invitation of people with whom he doesn't wish to be identified. That is, it seems to me, the best the world can probably do.

If the general constituency is willing to go behind a villain, then we can isolate the villain. We can make sure the villain doesn't extend beyond those bounds. The situation is rather like child abuse in the U.S.: the neighbor cannot go in and arrest the abusive parent. But the neighbor can open his/her doors to the abused child. We can allow ethnic Albanians coming out of Kosovo to go to Italy or Albania or Greece or wherever, and be relatively safe there if that's the choice they wish to make. The truth and reconciliation commissions, free movement for newspaper reporters, worldwide free speech, these are things that I think should be done.

There are also national things that you can do. If you don't like to deal with a country, you don't have to. You can establish things like the Sullivan Rules that the U.S. had in regard to South Africa, where American firms could operate in South Africa but only on condition that they did not comport with the South African apartheid rules in some ways. Countries can make these decisions. No single country can stop another villainous country that has the support of a large number of their people from turning their country into a bloodbath. What you can do is accept the refugees, publicize the event, make sure that you don't cooperate with it, stop your arms sellers from selling arms to these people. It seems to me that effort into those useful things would be much better spent than effort establishing an inter- national criminal court.







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