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: 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
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
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.