Article Type : Research Article
Authors : Janev I
Keywords : Kosovo; Vienna Convention
This article examines the Kumanovo
Agreement as a major obstacle to possible or potential Serbian military
intervention in Kosovo and Metohija (hereinafter shortly: Kosovo) in case of
uncontrolled Albanian invasion against the Serb population in Kosovo. The
Military Technical Agreement, reached under coercion in Kumanovo (in 1999),
between the International Security Force (‘KFOR’) and the Governments of the
Federal Republic of Yugoslavia and the Republic of Serbia, often known as
simply as the Kumanovo Agreement, represents a legal limitation to any
involvement of the Serbian military force(s). With respect to the Kumanovo
Agreement, the consensual element required for such peacekeeping agreement
appears to be missing. The absence of a consensual element undermines the legal
basis and the legal validity of the treaty that was reached under an apparent
coercion in Kumanovo (in 1999), as well as the legality of the authority of
NATO over Kosovo. It appears that, in absence of proper consensual
requirements, the Kumanovo Agreement may be interpreted as a dubious act under
the Vienna Convention on the Law of Treaties (hereinafter VCLT), particularly
Article 52 (related to the Coercion of a State by the threat or use of force).
Therefore, the Kumanovo Agreement, as an Annex to the Security resolution 1244
(1999), can be considered as an invalid act according to the VLCT. As a
consequence of its invalidity, in case of warlike situations and in case of
massive human rights violations by provisional authorities in Kosovo against
Serbian population, the Serbian government may resort to termination of the
Kumanovo Agreement (under Article 52 and even under Article 53 (jus cogens) of
the VLCT) in order to protect the Serbian population against ethnic cleansing,
oppression and other human rights violations of International Law.
Historical Background of the Yugoslav Crisis and Justifiability of Nato Intervention 1999
SFRY was established in 1945 as successor of the
Kingdom of Yugoslavia (after World War II under the name Federal People’s
Republic of Yugoslavia, which was changed to SFRY in 1963), constituted of six
republics (Serbia, Croatia, Slovenia, Bosnia and Hercegovina, Macedonia and
Montenegro) with different historical, cultural, religious backgrounds and
ethnic compositions. Before the establishment of the Kingdom of Yugoslavia,
Croatia, Slovenia and Bosnia and Hercegovina were under the rule of
Austro-Hungary, while Serbia, Montenegro and Macedonia have for centuries been
parts of Ottoman Empire (with Montenegro having almost always an independence
status, the independence of Serbia being recognized in 1878 at the Berlin
Congress and present Macedonia becoming part of Serbia after the Balkan wars,
1912-13). The ethnic structure of the population on the territory of SFRY at
the time of its formation was predominantly Slavic, with some Albanian
admixtures in the south of Serbia (the Kosovo and Metohija province) and in the
north-west Macedonia. The religious affiliation of the inhabitants of Croatia
and Slovenia was predominantly Roman Catholic; population of Serbia, Montenegro
and Macedonia was predominantly Orthodox Christian, while the dominant religion
in Bosnia and Hercegovina, Kosovo and Metohija, and north-western part of
Macedonia was the Islam. Due to their geographical position and religious
affiliation, the cultural ties of Slovenia and Croatia with the neighbouring
European countries, such as Italy, Austria and Hungary, were profound. On the
other hand, due to the help of Russian Empire in their struggle for
independence from the Ottoman Empire, as well as sharing the same religious
beliefs, the cultural ties of Serbia, Montenegro and Macedonia with Russia were
traditionally strong. While this ethnic,
religious and cultural diversity can be perceived as an asset (cultural enrichment
of the society, complementarity), coupled with the significant differences in
their economic development (caused partially by differences in the national
resources and production efficiency), it can be also a basis and potential for
creation of conflicting relations between (and within) the constitutive federal
units and groups of them. The conflict of geostrategic interests of the Western
Powers (USA and West Europe) and the Soviet Union for dominance over Yugoslavia
was wrapped in an ideological dress (“democracy” vs. power centralism, multi-party
vs. one-party system, ideological pluralism vs. “communism”). The ideological
form of western interests has found a resonance with the latent nationalist and
separatist tendencies in some of the republics (Croatia and Slovenia) and in
the autonomous province Kosovo and Metohija of Serbia (or for practical
purposes hereinafter so-called “Kosovo”). At the student demonstrations in
Pristina (capital of the province) on November 27, 1968, the requirement for
granting a status of republic to Kosovo within SFRY was articulated for the
first time, but was immediately suppressed. The nationalist tendencies in
Slovenia and Croatia were to a significant extent stimulated by their higher
level of economic development with respect to other parts of the federation and
the perception that the jointly produced wealth is distributed among the
republics disproportionately to their contribution to the common wealth.
Publicly these tendencies were expressed through requirements for greater
cultural autonomy, but were basically motivated by aspirations for more
economic and political rights and for strengthening their national identity
sentiment. The “Croatian Spring” mass-movement 1967-1971 for “cultural reforms”
and “rights” in the federation provides a primary example of such aspirations.
Furthermore, the requests for more profound political and liberal reforms were
present in other Yugoslav republics; in Serbia the need for liberal reforms was
articulated by the communist party leadership at the beginning of 1970s. As a
result of the public demands for greater political, economic and cultural
autonomy, in 1974, the Constitution of SFRY was amended, providing the
republics with a greater degree of autonomy in the economic, political and
cultural areas. The individual republics amended their own constitutions
accordingly, whereby the autonomous provinces of Serbia, Kosovo and Metohija
and Vojvodina, obtained a significantly greater autonomy, essentially equal to
that of the republics. The autonomous provinces (including the Kosovo and
Metohija and Vojvodina) didn’t obtained the right to secession from the SFRY.
The Federation maintained prerogatives only over the national defence and
international relations. The federal units had a full autonomy over their
economic and cultural relations with the external world. Within such a
decentralized federal structure the nationalist and separatist tendencies could
grow at will, the only controlling and cohesive political force being the
League of communists of Yugoslavia and the Collective Presidency of the
Federation, (constituted by representatives of the six republics and two
autonomous provinces), with Tito acting as its permanent President until his
death. After Tito’s death in 1980, the nationalist and separatist tendencies within
some of the federal units began to grow rapidly. These tendencies were strongly
supported by foreign countries with which they had a common history or long
cultural relations (e.g. Slovenia and Croatia with Austria, Germany, Italy and
Hungary, Kosovo and Metohija with Albania). The visible form of this support in
the case of Slovenia and Croatia was manifested in development of strong
economic and trade relations with the European countries, reviving their
cultural interactions and establishing cooperation in other fields. This
resulted in a noticeable increase of already significant economic strength of
these two republics within the federation relative to that of other republics.
This is an example of how selective relations of the external environment with
the units of a system can change the balance of power between the units. The
historic cultural and religious connections of Croatia and Slovenia with the
neighbouring catholic countries, fueling their cultural identification with the
European community of states, have also played a significant role in the rise
of nationalist and separatist sentiments in these republics. Apparently, the
psychological affiliation of these two republics to the Yugoslav project, first
as Kingdom of Serbs, Croats and Slovenes (1918-1929), then as Kingdom of
Yugoslavia (1929-1941) (a parliamentary monarchy with a Serbian monarch), has
never been strong due to the perception of dominance of the more numerous
Serbian nation in the federation.
Nationalist ideas started to grow also within the Muslim population in
Bosnia and Hercegovina (“Bosniaks”), supported ideologically and financially by
the Arabic countries (primarily Saudi Arabia and Turkey). In the federal units
in Yugoslavia based on multiple ethnic structures, the growth of nationalist
ideas stemmed from the ethnic identity, creating inter-ethnic tensions within
the units. Such tensions intensified during 1980s: between Serbs and Croats in
Croatia, Bosniaks and Croats and Bosniaks and Serbs in Bosnia and Hercegovina, Albanians
and Serbs in Kosovo and Metohija and to a lesser extent between Serbs and
Hungarian minority in Vojvodina. The strong nationalist sentiment of Albanians
in Kosovo and Metohija was expressed in the March-April, 1981, massive student
demonstrations in Pristina that spread out to other locations (towns Kosovska
Mitrovica, Uroševac, Vu?itrn). The primary demand of protesters was the demand
for granting the province (Kosovo and Metohija) a status of Republic within the
Federation (SFRY). The protests were suppressed by the Presidency of
Yugoslavia, declaring on April 2 a state of emergency in Pristina and the city
of Kosovska Mitrovica. In the years that followed, the political aspirations of
Kosovo Albanians for obtaining a status of Republic within the Federation were
only increasing and found support by Croatia and Slovenia. For Serbia the
administrative separation of Kosovo and Metohija from Serbia was unacceptable
and, in order to prevent the possibility of such an undesirable event, the
Serbian Parliament in 1989 amended its Constitution of 1974 to significantly
reduce the autonomy of Kosovo and Metohija (the amendments were confirmed in
the new Constitution of Serbia adopted in September 1990). The reaction of
Kosovo Albanians to the abolishment of their autonomy was organization of mass
protests, the general strike of town of Trep?a miners in March 1989 (publicly
supported by the Slovenian leadership), the referendum for independence from
Serbia and SFRY (in September 1991) and the unilateral declaration by the
Provincial Assembly of the “Republic of Kosovo” (which was one month later
recognized by Albania). The self-proclaimed independence did not have any legal
effect, but has enormously increased the inter-ethnic tensions within the
province and between Central Serbia and the separatist province. These tensions
started to obtain violent character and resulted in a massive expulsion of Serb
population from the province and a significant presence of Serbian police in
Kosovo and Metohija to protect the Serbs there. It should be mention that
Slovenia and Croatia were actively supporting the separatist aspirations of
Kosovo Albanians for independence from Serbia. The separatist aspirations of
these two republics started openly to be expressed and openly supported by
Germany and some other EU countries. Croatia was secretly planning a forceful
separation from Yugoslavia and buying arms from Hungary and other countries. As
a reaction to the separatist tendencies in Croatia and Kosovo and Metohija, the
nationalist sentiment in Serbia also started to grow. It was motivated
primarily by the concern for the destiny of Serbian population in these two
federal units with strong inter-ethnic tensions (already violently manifested
in Kosovo and Metohija and having historical roots in the World War II in
Croatia). The growth of nationalist sentiment of the Bosniaks in Bosnia and
Hercegovina, where the population of Serbs was also large, significantly
increased the potential for severe inter-ethnic conflicts. The national rights
of the Serbs in Bosnia and Hercegovina became an additional concern for Serbia.
The divisions over the national and economic issues, threatening the stability
and unity of Yugoslavia, were reflected further in the Yugoslav Presidency, as
well as in the League of Communists of Yugoslavia. On January 20-22, 1990, the
Extraordinary 14th Congress of the League of Communists of Yugoslavia was
convened in Belgrade to deal with these issues. The Congress was dominated by
clashes between the Serbian and Slovenian delegations, headed by Miloševi? and
Ku?an, respectively, over the power enshrined to the federal units and the
decision making process in the League. Slovenian delegation suggested a
confederative model for the League and the future State, empowering the
constituent units. Serbian delegation advocated introduction of a “one man-one
vote” policy for decision making in the League and a more centralized
Yugoslavia. All proposals of Slovenia were rejected, while those of Serbia were
accepted on a majority vote, helped by Vojvodina, Montenegro and Kosovo and
Metohija (represented by a pro-Serbian politician). The Slovenian delegation at
that point left the Congress. Miloševi? proposed to continue the work of the
Congress without Slovenia, but Croatia considered that as unconstitutional and
threatened to leave. When attempts were made to recommence the meeting, the
Croatian delegation departed the meeting, followed by the delegations of Bosnia
and Hercegovina and Macedonia. Subsequently, the League of Communists of
Yugoslavia was dissolved, opening the door of creation of multi-party systems
in the federal units. Thus, the last congress of the League of Communists of
Yugoslavia played the key role in the disintegration of the Yugoslavian
federation. The internal dissolution of Yugoslavia essentially started when the
federal republics organized their first multi-party parliamentary elections in
1990, when (except in Serbia and Montenegro) the ex-communists failed to win
the elections. Most of the elected governments were formed on nationalist
platforms, promising better “protection” (or advancement) of national interests
than the ex-communists. The success of the ex-communists in the elections in
Serbia and Montenegro was due to their proven strong nationalist stands in the
struggles for protecting the Serb interests in Croatia, Bosnia and Hercegovina
and Kosovo and Metohija (KiM). Following the results of multi-party elections,
Slovenia, Croatia and Macedonia proposed in autumn of 1990 to transform
Yugoslavia into a loose federation of six republics. The Serbian leadership,
however, rejected the proposal. The rationale was based on the premise that the
large Serbian populations in Croatia and Bosnia and Hercegovina should also
have rights to self-determination, similarly to Croats and Slovenians. In
addition, the Serbian leadership was alarmed by the change of the status of
Serbian population in the new Croatian Constitution, adopted on December 22,
1990, from a constitutive nation to a minority. Because of the major
disagreements between the republics about the reorganization of the federation,
and because of already openly expressed preferences of some Western countries
(especially Germany) in this regard, on December 23, 1990, Slovenia held a
referendum for independence from Yugoslavia. The turnout was 88.5% and 94.8% of
the voters voted for independence. The independence was declared on June 25,
1991. The Croatian referendum for independence from Yugoslavia was held on May
2, 1991, with 93.24% of the voters voting in favour. A second referendum was
held in Croatia on May 19, 1991, regarding the question of whether the
independent Croatia should form an alliance of sovereign states with the other
Yugoslav republics (in accordance with the proposal of Slovenia, Croatia and
Macedonia for solving the state crisis of SFRY). With the 83.6% turnout, since
the Croatian Serbs boycotted the referendum, 94.2% voted in favor. On June 25,
1991, Croatia declared its independence from Yugoslavia. Macedonia held its
referendum for independence on September 8, 1991, with 95.3% of voters voting
in favour. The Macedonian independence from Yugoslavia was declared on
September 25, 1991 (as Republic of Macedonia). The parliament of Bosnia and
Hercegovina was ethnically divided on the question of independence from SFRY.
Reacting to the Bosniaks majority stand for independence, Bosnian Serbs held an
own referendum in November 1991, with an overwhelming vote to stay in a common
state with Serbia and Montenegro. On January 9, 1882, they proclaimed a
separate Republic of the Serbian people (as “Republika Srpska”), which included
all regions within Bosnia and Hercegovina consisting of predominantly Serbian
population. The Bosniaks dominated Bosnian government called for an
independence referendum on February 29 and March 1, 1992, which was boycotted
by the Serbs. The turnout was 63.4% of which 99.7% voted in favour. The
independence of Bosnia and Hercegovina from Yugoslavia was declared on March 3,
1992. On April 6, 1992, the Bosnian Serbs declared their independence from
Bosnia and Hercegovina. It should be noted that the processes leading to the
establishment of Croatian independence from Yugoslavia were paralleled by
similar processes of the Croat ethnic Serbs: on April 1, 1991, the leaders of
the Serbian Autonomous Region (“Krajina” SAR (or republican Srpska Krajina))
declared that this region would separate from Croatia if it proclaims
independence. And indeed, after Croatia declared its independence, the three
Serbian regions of Krajina, Western Slavonia and Eastern Slavonia, Baranja and
Western Srem declared the Republic of Serbian Krajina (RSK) on December 19,
1991. The next day after the simultaneous declaration of independence by
Slovenia and Croatia on June 25, 1991, the federal Yugoslav People’s Army
(YPA), which was by the federal constitution the official guardian of the
territorial integrity of the state (FRY), moved towards the northern border of
Slovenia, where the Yugoslav border insignia, such as the flag and country
name, were already replaced by the Slovenian ones. Local armed Slovenians (the
paramilitary) prevented the move of YPA towards the border, and the threat of
an armed conflict became a real possibility. The European Community (EC)
exerted pressure on Slovenia and Croatia to place a three month moratorium on
their independence and organized the Brioni Conference on July 7, 1991,
involving an EC delegation, Slovenia, Croatia, and representatives of the
Yugoslav Presidency and Government. The
only results of this conference were the withdrawal of YPA from Slovenia, and
the agreement by both Croatia and Slovenia to suspend their (armed) activities
around/and their declared independence for three months. However, during its
withdrawal from Slovenia through Croatia, fierce clashes between the YPA and
Croatian armed forces took place (the most bloody being those in the city of
Vukovar), marking the beginning of a full-fledged war. On September 7, 1991,
the EC organized the Conference on Yugoslavia in Hague in an attempt to cease
the battles in former Yugoslavia, find a political solution for the
inter-republic conflicts and restore the Federation. Lord Peter Carrington
chaired the Conference. In the framework of the Conference an Arbitration
Commission was formed, led by Robert Badinter, the president of the
Constitutional Council of France. The Commission included presidents of
Constitutional Courts of Germany, Italy, Spain and Belgium as members. The
mandate of the Commission was to provide the Conference with its opinions about
major legal matters which have arisen from the declarations of independence of
Slovenia, Croatia and Macedonia, and the potential for defragmentation of
Croatia and Bosnia and Hercegovina by the ongoing armed conflicts. The opinions of the Commission were the
following: 1) SFRY was in the process of dissolution, 2) the Serbian population
in Croatia and Bosnia and Hercegovina is entitled to all rights of minorities
and ethnic groups and the republics must afford to them all the human rights
and fundamental freedoms recognized in the international law, 3) the boundaries
between Serbia and Croatia and Serbia and Bosnia and Hercegovina and other
adjacent states may not be altered, except by mutual agreements, 4) the
independence of Croatia should not be recognized by the EC countries because of
the inadequate protection of minorities in the new Croatian Constitution. (In
reaction to this opinion Croatian president wrote a letter to Badinter giving
assurances that this concern would be remedied.) Commission recommended
recognition of Slovenia and Macedonia, but because of the Greek opposition EC
was subsequently reluctant to recognize Macedonia. In arriving at the opinion
3), the Commission was guided by the legal principle uti possidetis (juris),
i.e. recognized as inter-republican administrative borders as determined in the
Federal Constitution of 1974, as future state borders. The Commission did not
recommend recognition of Bosnia and Hercegovina, since at the time of delivery
of its opinions (November 29, 1991, January 11, 1992) the referendum for
independence in this republic had still not been held. The Commission expressed
opinion that the succession of SFRY should be resolved by mutual agreement
between the successor states with an equitable division of international assets
and obligations of the former state. It also ruled that the membership of SFRY
in international organizations could not be continued by the successor state,
but each that emerged from the former SFRY should individually apply for membership
anew. This principle would also be
applicable for the applications of the states emerging from the SFRY
dissolution for membership to the EC. What could be relevant for Serbia was
derivation that apparently succession from FRY (or Serbia) with respect to
provinces (such as Kosovo and Metohija) may not take place in and arbitrary
manner, since uti possidetis was applicable only to Republic borders. However,
the leadership of Serbia and Montenegro was in strong opposition to the opinion
2) of the Commission, denying the right to self-determination of the Serbs in
Croatia and Bosnia and Hercegovina. On the basis of the opinions of Badinter
Commission, Slovenia and Croatia were recognized by the EC on January 15, 1992.
Even before this date they were unilaterally recognized by Germany on December
27, 1991, (despite the opposition of France, UK and the Netherlands) and by
Ukraine, Island, the Holly See and the Baltic countries. Their recognition by
other countries rapidly grew thereafter. As mentioned above, the recognition of
Macedonia by EC was not granted due to the Greek opposition, and ratio that
seems to be legally groundless. Meanwhile, the armed conflicts in Croatia
between the Croatian forces, on one side, and the YPA and the forces of
Republic of Serbian Krajina (RSK), on the other, were intensifying. The United
Nations Security Council on November 27, 1991, adopted the Resolution 721,
which paved the way to the establishment of peacekeeping operations in Former
Yugoslavia. The special envoy of the UN Secretary-General, Cyrus Vance, on
November 23, 1991, met in Geneva with the presidents of Serbia and Croatia, and
with the Yugoslav Minister of defence, where a ceasefire agreement was
negotiated (the Geneva Accord). The ceasefire, however, did not last very long
and the war conflicts spilled over into Bosnia and Hercegovina, involving all
three ethnic groups (Bosniaks, Serbs and Croats). Within the Vance’s efforts
regarding the implementation of ceasefire and demilitarization of the parts of
Croatia, under control of Croat Serbs and YPA, on January 2, 1992, another
meeting was convened in Sarajevo, where an Implementation Agreement was signed
by military representatives of Croatian Ministry of defence and YPA. The
Agreement entailed deployment of 10,000-strong UN Protection Force (UNPROFOR)
to the major conflict areas, with the task to create buffer zones between the
fighting troops, to disarm the arm forces od RSK, to ensure the YPA withdrawal
from the UN protected areas and the return of refugees to these areas. The RSK
president refused to endorse the Agreement, but Serbian President Miloševi?
persuaded the RSK parliament to replace him and accept the Agreement. The
acceptance of the Agreement by Serbia was motivated by its primary purpose to
create favorable conditions for negotiations of the permanent solution to the
conflict. The Agreement produced a longer-lasting ceasefire, but failed to
completely implement the other of its objectives. After September 1992, the EC
took a proactive role in the UN peace efforts in Yugoslavia and its
representative Lord Peter Owen joined Vance in the peace negotiations. After
Vance resigned his post in April 1993, the Norwegian Foreign Minister Jens
Stoltenberg was appointed as the main UN peace negotiator. At the initiatives
of Lord Owen and Stoltenberg, the UNPROFOR’s mandate was extended to include
the territory of Bosnia and Hercegovina. The UNPROFOR mission was terminated in
March 1995. In August of the same year
the Croatian army undertook the military initiative “Operation Storm” against
the RSK, resulting in massive destruction and a flux of 250,000 refugees into
Serbia. With respect to this operation we could only derive the obvious
conclusion that UN acted in a way that actually helped Western and Croatian policy
planers aimed for creating conditions for forceful expulsion of these people
from Croatian territory. In the period of November 1-21, 1995, the “General
Framework Agreement for peace in Bosnia and Hercegovina” (Dayton Agreement) was
negotiated in Dayton military base, Ohio, between the presidents of Serbia
(Slobodan Miloševi?, representing the Bosnian Serb interests), Croatia (Franjo
Tudjman) and Bosnia and Hercegovina (Alija Izetbegovi?), with the mediation of
the US Secretary of State Warren Christopher, EU Special Representative Carl
Bildt, First Deputy Foreign Minister of Russia Igor Ivanov and the US
negotiator Richard Holbrooke. The Dayton Agreement was officially signed on
December 14, 1995, in Paris, France, witnessed by the presidents of the US and
France, as well as the prime minister of the UK. That treaty was reached under
the some extent undignified pressure and coercive conditions (in lack of Bona
fides) that could raise a question of legal validity of that act, since a
treaty creation should be based on a free will, good faith and the necessary
element of consent in contracting process, that is a basic prerequisite for
valid conclusion on any treaty. The main purpose of the Dayton agreement was to
bring an end to the inter-ethnic conflicts and prevent them from resuming, to
delineate the inter-ethnic boundaries, and to endorse a regional balance of
power. The territory of Yugoslav Republic Bosnia and Hercegovina was divided
into two political entities: 1) Federation of Bosnia and Hercegovina, involving
the Bosniaks and Bosnian Croats and occupying 51% of the territory, and 2)
Republican Srpska on the remaining 49% of the territory with predominant Serb
population. Each of these two entities would have its own governing
institutions, but the government of the new state Bosnia and Hercegovina would
consist of representatives of the three ethnic groups (empowered with a veto
voting right in the decision making process). The implementation of the
agreement was mandated to the NATO-led Implementation Force (IFOR) -
responsible for keeping the peace, the Office of High Representative -
responsible for civic and legal matters, and the Organization for Security and
Co-operation in Europe (OSCE) - responsible for organizing the first free
elections in 1996. The IFOR multilateral military force consisted of 63,000
soldiers and in November 1996 was replaced by the Stabilization Force (SFOR)
under the US command (the latter renewed again in 1998). After Bosnia and
Hercegovina declared its independence from Yugoslavia on March 3, 1992, the
remaining two SFRY republics constituted the Federal Republic of Yugoslavia
(FRY) on April 27, 1992. Although on the federal level the governance of the
new state was equitably shared between the constitutive entities, there was a
sentiment in Montenegro that Serbia had the larger share in the state power
(especially expressed in the common parliament, the composition of which
reflected the population difference between the two constitutive entities).
This sentiment of unequal share of the power resulted in a reconstitution of
the state to a State Union of the “Serbia and Montenegro” on February 4, 2003.
In the Montenegrin society there has historically been a divide regarding their
ethnic affiliation. Approximately half of the Slavic population identifies
itself as Serbs, while the other half perceives itself as a separate nation.
Coupled with other political and economic discontents, this national divide led
to the referendum for independence of Montenegro on June 3, 2006. Given that
55.5% of the 86.3% voter turnout voted for separation, Montenegro declared its
independence. Serbia formally declared its statehood on June 5, 2006, and
became a legal successor of the State Union (“Serbia and Montenegro”), while
Montenegro had to apply for membership in all international organizations. This
was the end of the dissolution of the ex-SFRY.
In addition, after dissolution of the ex-SFRY,
provisional authorities in Kosovo and Metohija in an unconstitutional manner
self-proclaimed an “independence of Kosovo” on 17. Feb. 2008 to break away from
the Serbia. That unilateral (self-) declaration by Kosovo Albanians actually
revealed the true intention of military engagement of NATO forces in 1999 as
their ally in the process of illegal secession and apparently main goal of
creation of the new state. For our study in present article related to UN
Security Council Resolution 1244 (1999) and particularly its Annex II we should
emphasize that the 1999 NATO invasion of the Federal Republic of Yugoslavia
wouldn’t end until agreement between FRY and NATO (the Military Technical
Agreement between the International Security Force ("KFOR") and the
Governments of the Federal Republic of Yugoslavia and the Republic of Serbia)
was signed on 9-th of June 1999 (a day later on 10-th of June to become an
Annex to SC Resolution 1244). FRY and Serbia have never accepted justifiability
and legitimacy of brutal NATO intervention and the outcome of war in 1999,
including its contractual consequences. Many countries and prominent scholars
and intellectuals rise their voice and condemned NATO incursion and
intervention, particularly a bombing campaign of FRY and Serbia. For instance,
Noam Chomsky argued that the main objective of the NATO intervention was to
integrate FR Yugoslavia into the Western neo-liberal social and economic
system, since it was the only country in the region which still defied the
Western hegemony prior to 1999. War with
NATO (or rather an aggressive invasion) actually started after refusal of Serbia/FRY
to sign the Rambouillet Agreement under apparent extortion or blackmail, i.e.
FRY and Serbia was threatened by NATO with armed attack if FRY/Serbia refused
to conclude that treaty. Yugoslavia's
rejection conclude that unacceptable and undignified accord was used by NATO
and its member countries to justify the 1999 bombing, aggression and
essentially destruction of Yugoslavia.
Despite the explicit rejection of Rambouillet Agreement by FRY, this
document was incorporated into Security Council Resolution 1244 that limits FRY
army and police forces to return to the Kosovo, providing for an authority of
KFOR to prevent and control withdrawal or presence of FRY armed forces. That
part of SC resolution apparently defies basic norms of jus cogens related to
the juridical equality of states and discrimination under International Law,
particularly prohibition of discrimination of UN members provided by the UN
Charter and the Vienna Convention on the Representation of States in their
Relations with International Organizations of a Universal Character (1975). FRY
was invaded, with no backing of UN decision, in violation of the norms of UN
Charter in a similar way as Russia invaded the Ukraine (2022), with visible
distinction that aggression against the FRY was never condemned by UN and the
Western allies.
In order to comprehensively examine the legal aspects
surrounding the UN Resolution 1244 (1999) it appeared to be important for our
research to understand an unusual legal status of the Federal Republic of
Yugoslavia (Serbia and Montenegro) in the United Nations in 1992. Unlike
Yugoslavia (or Serbia and Montenegro), after the recognition by EC of the
independence of Slovenia and Croatia and the Declaration of Independence of
Bosnia and Hercegovina on March 3, 1992, these three countries were admitted to
UN membership on May 22, 1992, by the UN resolutions A/RES/46/237, A/RES/46/238
and A/RES/46/236, respectively. The Federal Republic of Yugoslavia (Serbia and
Montenegro) claimed itself as a legal successor state of the SFRY. However,
following the recommendations of UN Security Council resolutions SC/RES/757
(May 30, 1992) and SC/RES/777 (September 19, 1992), the UN General Assembly
adopted the resolution A/RES/47/1 on September 22 of the same year, determining
that “the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot
continue the membership of the former Socialist Federal Republic of Yugoslavia”
in the United Nations. Therefore, it was decided that “the Federal Republic of
Yugoslavia (Serbia and Montenegro) should apply for membership to the United
Nations and that it shall not participate in the work of General Assembly”. The
denial of automatic membership of FRY in the UN was in stark contrast to the
previous decision of the General Assembly that the Russian Federation could
automatically continue the UN membership of the Soviet Union after its
dissolution in December 1991. Despite of the fact that a continuous UN
membership of Russia is necessary for the smooth UN operation (due to its
permanent seat in the Security Council), the dissimilar treatment of the two
legally identical cases is in contradiction with the UN Charter basic principle
of “sovereign equality of its members” (Article 2(1)). It should be noted that
the primary purpose of the previously mentioned Security Council Resolution
757, in which the successor status of Federal Republic of Yugoslavia was
denied, was to impose international sanctions on the country given its role in
the Yugoslav wars (as seen by the Security Council members). During that period
Gorbachev’s Russia was trying to demonstrate its acceptance of the “western
values” and its “openness for co-operation”. The negative image created by
massive propaganda portraying FRY as an aggressor in Yugoslavia’s dissolution
process might have led to the biased legal reasoning in the Security Council
and in the General Assembly. Irrespective of these considerations, the legal
fact remains that through the continuation of the membership of the former
Soviet Union (USSR) by the Russian Federation and the denial of continuation of
former Yugoslavia (SFRY) by Federal Republic of Yugoslavia, an unequal
treatment was applied, that violates Article 2(1) of the United Nations Charter.
This example demonstrates how the positions of state entities in the world
political system are determined by the relations between the states, especially
by the relations between the most influential states, and how these relations
may affect the legal actions of international institutions. The recommendation
of the UN Security Council in its Resolution SC/RES/777, incorporated later in
the General Assembly Resolution A/RES/47/1, that FRY “should not participate in
the work of General Assembly”, was a political compromise between the US and
some western SC members, on one side, and the Russian Federation, People’s
Republic of China and some other non-allied SC members, on the other. The
original draft of the SC Resolution 777, prepared by the United States, stated
that the UN General Assembly should make the decision that the
"Yugoslavia's membership in the United Nations be extinguished". This
Draft SC Resolution was reformulated in order to obtain Russian support and the
resolution remained open to different interpretations. Russian Federation and
the Republic of China rejected the initial idea that the FRY be excluded from
all UN organs, stating that its work in “the other organs should be
unaffected”. Meanwhile, India and Zimbabwe (traditional allies of Yugoslavia)
observed and stated that SC Resolution 777 violates Article 5 of the United
Nations Charter. Since the membership of the former SFRY to the UN had not yet
been extinguished, the SFRY diplomatic mission to the United Nations continued
its work in the other UN organs, while FRY continued to pay the due yearly
membership contribution to the UN budget. This irregular membership status was
acceptable to the FRY leadership, and only after Milo?evi? was ousted from
power on October 5, 2000, the Federal Republic of Yugoslavia applied for UN
membership; it was admitted on November 1, 2000, by the General Assembly
resolution A/RES/55/12. Let us briefly analyse the legal soundness of SC
Resolution 777, regarding which India and Zimbabwe voiced their concerns. The
suspension of the right of a UN member from participation in the work of the
General Assembly, or the suspension of any membership right, is regulated by
Article 5 of the UN Charter that reads: “A Member of the United Nations against
which preventive or enforcement action has been taken by the Security Council
may be suspended from the exercise of the rights and privileges of membership
by the General Assembly upon the recommendation of the Security Council. The
exercise of these rights and privileges may be restored by the Security
Council”. It should be noted that the
conditions under which the prior preventive or enforcement action had been
taken by the Security Council, necessary for suspending a membership right by
the Council or the General Assembly, are not explicitly specified in the
resolution(s), and neither is their character. This ambiguity dilutes Article 5
as a legal norm and opens the door for political considerations in its
interpretation. Although the legal basis for imposing the suspension of the
right of SFRY/FRY to participate in the work of General Assembly could only be
Article 5 of the Charter, no specific preventive or enforcement action(s) taken
by the Security Council were explicitly mentioned in the SC/RES 777 and
A/RES/47/1 to justify the imposed suspension. In the absence of an explicit
delineation of the specific preventive or enforcement action measures taken by
Security Council (and supporting rationale), the recommendation and decision in
the above mentioned resolutions for suspension of the SFRY/FRY right to
participate in the work of General Assembly are lacking the legal basis. As
accurately observed by India’s and Zimbabwe’s SC members, these resolutions are
in violation with Article 5 of the Charter. Thus, it can be concluded that the
suspension of the right to participation in the work of the General Assembly by
the above UN organs was imposed on the basis of political considerations alone,
i.e. disregarding the UN Charter’s legal framework. Therefore Resolutions SC/RES 777 and
A/RES/47/1 derogating legal membership status of the FRY essentially
demonstrate(s) an ultra vires act committed by the UN in its decision making
against member state. It should also be noted that unusual membership status of
the FRY in the UN limits obligations (and rights) of FRY Vis a Vis the UN, as
UN consequently diminish its legal capacity to impose its decision on such
member, still a sovereign state.
The alleged right of “humanitarian military
intervention” as a pretext or reason for an assault in 1999 apparently did not
provide the convincing justifications by NATO countries for their aggressive
action, particularly taking into consideration that there were no any backing
UN SC resolution for endorsement external military involvement, incursion or
intervention against a sovereign state. Even if we put aside that aspect
(measure not backed by Security Council resolution), and accept the
“significance of the Kosovo Agreement” with respect to “security provisions”
for a region, it remains questionable in the Resolution 1244 (1999) legality of
deployment of the UN civil administration in Kosovo and Metohija and KFOR’s
powers and its entitlements or jurisdiction in the Serbian province. As we
noted that in the previous UNSC Resolutions 1160, 1198 and 1203 no explicit
authorization was given in their wording for any such violations of national
sovereignty. In Resolutions 1160, for instance the SC only recalled the
possibility of taking further action, if the SC’s requests were not met by the
FRY. That formulation was legally dubious, as well since territorial
sovereignty is a basic principle embedded in the UN Charter. As for SC
Resolution 1244, Western authors (USA, UK, etc.) of that resolution have argued
that this act did provide for an ex post facto endorsement of the NATO action.
However, nowhere does the resolution afford for any endorsement of the coercive
military invasion or UN civilian action or deployment replacing Constitutional
organs of Serbia in its province. The
incursion action of NATO was not backed by Security Council resolution, neither
in the case of military intervention, nor in the process of a
treaty-precondition for ending of the brutal intervention. Therefore, procurement of the
"Military-Technical Agreement between the International Security
Assistance Force ("KFOR") and the Government of the FRY" (or
“Kosovo Agreement”) appears to be in violation of principles of international
law. It is apparently incorrect to argue
that the existence of such reference as (or to the) “Kosovo Agreement”
(hereinafter “KA”) that a day later became Annex II can be seen as an implied
endorsement for aggressive action, particularly taking into considerations
general provisions of Resolution 1244 guarantying territorial integrity and
sovereignty of existing state (FRY) and especially bearing in mind an Article
2(1) of the UN Charter, as a pillar of international law. Obviously, a
reference to the agreement (placed in the Annex II of resolution) does not
provide any clear evidence of such intention, particularly not consent by other
party (Serbia/FRY) in KA, since no state aim at self-derogation of (own)
sovereignty or could provide in good faith any endorsement of such
self-inflicting damages with external or UN involvement actions in that
(damaging) direction. In our view, a previous military intervention by NATO in
Kosovo and Metohija couldn’t legally be
treated as a legitimate/legal or legally endorsed action bearing in mind that
brutal bombing of FRY was provoked by refusal of FRY government to conclude
another treaty in an attempt of obvious extortion (the Rambouillet Agreement).
Act ending the war or rather illegal aggression on the FRY certainly do not
represent an international occupation (occupatio bellica) act, because
intervention and agreement between Belgrade and NATO was subject of the
subsequent (i.e. conditional/potential) approval by the UN Security Council as
occupational treaty, and FRY was apparently extorted to sign it. In addition,
with respect to Kosovo as its region, Serbia (and FRY) was acting in
self-defense against foreign invasion provoked by the rejection of the
Rambouillet accords ultimatum. It should also be noted that the territory of
Kosovo and Metohija (Serbian province)
was placed under the sort of an illegal UN protection despite a fact that it
was not and could not be under “protectorate status”, since there was no any
such treaty between UN and any state (or UN member) on such protective
arrangement. Status of the “protectorate” (that is by definition regulated by
agreement (and in the jurisdiction of the UN Trusteeship Council)) at the time
of the adoption of the SC Resolution 1244 Kosovo and Metohija could not have
obtained considering that Kosovo was not a state (or any such entity that meets
the conditions to be a “protectorate”), and hence „protector“(state or
Organization) couldn’t exist in this case. It should be noted that the full
name of the "Kosovo agreement" is a "Military-Technical
Agreement between the International Security Assistance Force
("KFOR") and the Government of the Federal Republic of Yugoslavia and
the Republic of Serbia", suggests its technical nature (or
"assistance purpose"), not occupational intention (occupatio bellica)
or occupational act (or treaty of surrender). This agreement delivered under
the threat of armed attack and bombing (i.e. aggression) was concluded between
Yugoslav Army Major General (i.e. divisional general) Svetozar Marjanovi? (a
regional FRY commander in Kosovo), FRY Police Major General Obrad Stevanovi? on
the Yugoslav side, and British Brigadier General Michael Jackson, on behalf of
NATO, on the other side (commander on the ground, representing NATO party to
the agreement).That was an act concluded under conditions of coercion by the
threat of force and the abuse of force. This extorted circumstances speak
themselves on the legal validity of the treaty (i.e. conclusion under
coercion). It should also be noted that a relatively low military rank of these
state officers negotiating already prepared agreement and signing it (below the
level of lieutenant general or full general), in comparison to normal
diplomatic officials with proper capacity for state contracting, indicates that
treaty was in fact an imposed "ceasefire agreement" or as many
described a "peace-keeping treaty", and not an act of surrender or
occupation (agreement) as was interpreted for instance by Brig. General Michael
Jackson, nor an act for the change in the political status of the state
(FRY/Serbia) or loss of its territory. Furthermore, with respect to domestic
Constitutional aspects, it should also be noted that military officials
representing FRY and signing the KA (representing the Yugoslav Army and the
police) apparently did not have any Constitutional power or jurisdiction
necessary to place signature or conclude any valid document that would limit
Serbian sovereignty over its province Kosovo and Metohija on behalf of the
Serbian government. That fact was known
to the NATO and UN officials at the moment of conclusion of KA. As pointed
above, a day after the conclusion of the coercive KA, SC Resolution 124 was
adopted and KA was annexed to it and endorsed in an attempt to legitimize that
act. Nevertheless, this Annex II could be interpreted as separable part of the
Resolution 1244, since wording of the resolution suggests conditionally for
creation of that agreement (in future/conditional tense). Remarkably, KFOR
(leaded by NATO force) was not defined anywhere as occupying force (in accordance
of UN mandate and UN nature or Charter), but rather as a “peacekeeping force”,
and therefore agreement annexed (KA) could not also be interpreted as
occupational (surrendering) agreement placing state under foreign/external or
military rule and occupation. Otherwise, the KA (as Annex to the UN resolution)
would be entirely inconsistent with the purposes and principles of the UN
Charter. Bearing in mind that KFOR under the international mandate of the
United Nations (as non-supranational and deliberative organization) may not be
an occupying (or classical coercive occupational) force under any
circumstances, due to the peaceful goals of the UN that entail purposes and
role of UN peacekeeping forces in accordance to the nature of the Charter,
treaty concluded by the NATO on June of 9-th, could not meet any occupational
criteria (i.e. standards for military take over the territory or surrender),
but rather usual norms for treaty conclusion should be applicable. It is clear
from the discussion preceding and following the adoption of the Resolution 1244
in 1999 that its aim with respect to UN presence was only “to restore the
authority of the UNSC” starting from “the de facto situation” created by the
NATO (assault) intervention, and not in any way to legalize and legitimize that
military action. However, Members of the
UNSC took as granted “legality” of the “Kosovo Agreement” and even tried to and
legitimize its dubious effects despite the controversies related to sovereignty
for FRY and territorial integrity guaranteed to FRY in the SC Resolution 1244
in accordance with the UN Charter. The bias arguments employed by NATO
countries to justify their action, and other possible arguments such as “the ex
post facto endorsement” and the “enforcement of a right of self-determination”,
reveal to us that NATO intervention was indeed in violation of the basic
principles of international law and purposes of UN embedded in its Charter.
Conducted NATO military action in FRY prior to Resolution 1244 could, for
instances, be burdened by possible NATO atrocities (as was actually case to
some degree with air campaign), that could not subsequently be legitimized or
endorsed by the UN resolution(s) under any pretext or circumstances. In some of
advisory opinions of the ICJ and for example in the very first case dealt with
by the ICTY, we have observed very broadly defined the competence of the UNSC
to act within the powers provided by Chapter VII. On some other situations, ICJ took different
stand that power of the Security Council should be limited and in accordance
with the UN Charter. Due to the lack of
an institutionalized system of judicial review of the acts of the political
organs of the UN, the SC in its business presumed an unlimited authority to
decide its own competence practically on any matter by declaring that such
„conflicting” or controversial “matter” allegedly represent a threat to
international security (de facto „being judge in its own case”). Remarkably,
UNSC also assumed an unlimited power to decide which kind of coercive or
non-coercive measures to adopt, with no limitation embodied in UN Charter. As a
consequence, a state addressed by such arbitrary SC measures could not seek a
judicial review of the decision(s) per se. In previous chapter in our article
here (above), in the case of illegal derogation of the legal membership status
of FRY in the UN, it was clearly demonstrated that in spirit of international
law and normative nature of the UN Charter (as contract) that UNSC shouldn’t
possess unlimited powers, and when presumed arbitrary and therefore wrongfully
such actions constitute an ultra vires act(s), by its nature, since powers of
any UN organ legally should always be limited.
Another question is how to deal with such illegal acts or how to cure
their illegal consequences or effects.
Some possibilities were suggested in the jurisprudence of ICJ related to
the advisory jurisdiction of the Court. Arbitrary behaviour of the UN Security
Council (SC) with respect to Kosovo and Metohija (KiM) was demonstrated before
the adoption of the SC Resolution 1244. In the UNSC Resolution 1203 for
instance, the SC endorsed the agreements of October 15 and 16 (1998) between
the FRY and OSCE, and the FRY and NATO respectively, which were concluded after
the issuance of an activation order by the NATO Secretary General. Such „threat of the use of force” without
proper UNSC authorization was clearly in defiance of international law and UN
Charter. In the lack of reference to international law and legal grounds, the
ad hoc solution provided (described as “uniqueness of the precedent”) by SC
hardly speak in favor of the development of “new” normative standards “relaxing
the obligation” of the Security Council to abide by the UN Charter. It is also
apparently not permissible Security Council decision to supersede the
underlying agreement as a normative source.
In UNSC Resolution 1203, it effected a “novation” of the (in) valid or
dubious agreement between OSCE and FRY by creating a new so-called “legal
basis” for the OSCE verification mission. In addition, such novation apparently
did not occur with respect to the NATO “air verification” mission (in view of
SC), who’s normative content was still dependent on the Belgrade consent. The Kosovo Agreement (KA), which is supposed
to “provide the legal basis” for NATO’s authority over security matters in FRY,
apparently does not appear to have been superseded by Resolution 1244, neither
appears to legalize aggression subsequently. Likewise, without Kosovo
Agreement, Security Council Resolution 1244 have essentially different
character and limits; hence standalone (striped from annexes) it provides for
territorial integrity of FRY and Serbia. It should be reiterated that Kosovo
Agreement was subsequently added as an Annex to the Resolution 1244 subject to
the consent of FRY (under abuse of force) and that in the case of potential
termination of the treaty (KA), Resolution 1244 would still be in force with
original legal effects (in absence of Annex provisions). Even with demand
enshrined in Resolution 1244 for the “complete verifiable phased withdrawal
from Kosovo of all military, police and paramilitary forces according to a
rapid timetable, with which the deployment of the international security
presence in Kosovo”, that resolution determination of 1999 couldn’t prevent
possible present day action of Serbia for self-defence or defence of its
population in Kim, as the peremptory right stemming from the norm of jus
cogens. As to the compliance of UN (SC, UNGA and other organs) decisions or
resolutions with mandatory norms of jus cogens that by peremptory nature limits
powers of UN and/or UNSC decisions the conclusion related to such limitation of
powers of the UN organ is self-evident. Given that the prohibition of the use
of force outside the UN Charter framework has been considered by the ICJ and
the International Law Commission (ILC) as the norm of jus cogens, it may well
be asserted that general customary principles, such as norm in Article 52 of
the Vienna Convention on the Law of Treaties of 1969 (VCLT) related to
invalidity of treaties concluded under coercion also represents as supreme jus
cogens norm (and should be respected as such). The Article 52 of the Vienna
Convention on the Law of Treaties (VLCT) provides jus cogens limitation related
to the Law of contracting treaties that reads:
”A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations”. In our case with Kosovo Agreement, this dubious contractual act apparently represent an example of an invalid agreement under Article 52 of the VCLT in violation of a basic norm of jus cogens. That act is beyond the limits of UN legality and jus cogens prerequisites for contracting, since treaty was concluded in the absence of the essential element of the consent and a free will, with respect to Serbian and Yugoslavian party-contractor that was evidently coerced and extorted under threat of the use of force. The KA was not concluded under presumption of Good Faith (Bona Fides). One may argue whether Article 52 of the Vienna Convention on the Law of Treaties (1969) provides for a ground of “absolute” or alternatively “relative” invalidity in case of Kosovo Agreement (namely, posing a dilemma whether that treaty that ought to be considered as null and void ab initio, or whether it can still produce some legal effects and be „cured” by the (coerced) party’s subsequent acceptance or acquiescence of that act). The wording and character of Article 52 within the Vienna Convention on the Law of Treaties clearly support the view that Article 52 describes a ground of absolute nullity of act(s) created under coercion (or threat or use of force). Also the ILC Commentary on Vienna Convention on the Law of Treaties leans on towards this original interpretation of Article 52 (as null and void ab initio). The prevailing ratio of this ILC findings is that the protection against the threat of use of force is of such “fundamental importance for the international community that any juridical act concluded against such principle ought to be fully invalidated”. When discussing the loss of a right to invoke a ground of treaty invalidity by way of acquiescence (Article 45 of the VLCT), the ILC is unambiguous in stating that: „the effects and implications of coercion in international relations are of such gravity . . . that a consent so obtained must be treated as absolutely void in order to ensure that the victim of the coercion should afterwards be in a position freely to determine its future relations with the State which coerced it”. For instance to change the original interpretation, a Swiss delegation to the 1969 Vienna Diplomatic Conference proposed an amendment to the draft article to the effect that the coerced state would be entitled to “waive the invalidity of the treaty”. The proposal was defeated 63-12, thereby supporting the idea that only a subsequent agreement would be able to confirm the validity. We may now briefly remind us to the content of the basic provisions of this imposed “peace agreement”, which was concluded outside the valid domestic constitutional requirements of Serbia/FRY (for contracting) and in absence of free will of contracting parties (i.e. Serbian free consent and Bona Fides). From the Article I of the KA we found harsh compulsory limitations contrary to the general provisions of the SC Resolution 1244 related to the sovereign status of the FRY:
„a. To establish a durable cessation of hostilities,
under no circumstances shall any Forces of the FRY and the Republic of Serbia
enter into, re-enter, or remain within the territory of Kosovo or the Ground
Safety Zone (GSZ) and the Air Safety Zone (ASZ) described in paragraph 3.
Article I without the prior express consent of the international security force
("KFOR") commander. Local police will be allowed to remain in the
GSZ. The above paragraph is without prejudice to the agreed return of FRY and
Serbian personnel which will be the subject of a subsequent separate agreement
as provided for in paragraph 6 of the document mentioned in paragraph 1 of this
Article. b. To provide for the support and authorization of the international
security force ("KFOR") and in particular to authorize the
international security force ("KFOR") to take such actions as are
required, including the use of necessary force, to ensure compliance with this
Agreement and protection of the international security force ("KFOR"),
and to contribute to a secure environment for the international civil
implementation presence, and other international organizations, agencies, and
non-governmental organizations (details in Appendix B)."
These cited provisions of KA clearly demonstrate
extorted impositions of politically self-inflicting damaging obligations
otherwise normally unacceptable in the absence of the imminent threat of war
(i.e. abuse of power). That KA imposed obligations, as a sort of sanctions,
apparently substantially undermine unacceptably derogate state sovereignty in
the part of the territory of FR Yugoslavia and particularly territorial
sovereignty of Serbia. It follows self-evidently that the KFOR - FRY/Serbia
agreement (KA) was created under war-like threats and fundamental coercive
pressure to surrender part of Serbian territory to assault victorious forces
(NATO) where the formal FRY consent was extorted under condition of
continuation of bombing aggression against Serbia and FRY. Therefore the only possible conclusion is
that this unwanted agreement was not concluded in accordance with the general
rules of contracting law, i.e. free will and bona fides. Under no circumstances, other than military
coercion and extortion FRY (and self-evident abuse of power) would Serbia or
FRY agree to surrender part of its territory to the foreign occupational forces
that took side with Kosovo’s Albanians. With respect to its legal validity or
entering into force, subparagraph f provides that: "Entry into Force Day
(EIF Day) is defined as the day this Agreement is signed."(i.e.
"Entry into Force Day" hereinafter EIF Day), i.e. KA entered into
force on 9 June 1999 where NATO designation was replaced with KFOR. It should
be noted that in moment of signing of KA, UN still didn’t instituted KFOR as
its peacekeeping force. Next day, UN Security Council incorporated dubious
agreement as its Annex II to the Resolution 1244 and endorsed KFOR as UN force
(ex post facto). It should be emphasized with respect to general customary law,
that contracts concluded under pressure (abuse of power), threat, fraud,
deception, delusion/misperception, blackmail or violation of basic jus cogens
norms, as well as the principles of bona fides (as emerging jus cogens), have
no legal effect by definition (they are null and void). All enumerated reasons
for termination of agreement or contract (under threat, pressure, fraud,
delusion/ misperception, blackmail, extortion) constitute also jus cogens norms
of peremptory customary law that may invalidate any agreement or a treaty.
Obviously, act or statement to inflict damage or other hostile action, as in
case of Serbia (party to the KA), constitute a threat that could invalidate a
contract. Furthermore, in modern international law, some basic rules of Article
2 of the UN Charter that regulate interstate relations, in addition to
mentioned customary norms, including genocide (or other blatant human rights
violations), are also considered to be jus conges norms for state’s behaviour.
These basic peremptory norms include: 1. sovereign equality (paragraph 1 of
Article 2) that enshrines a basic juridical equality, than as an extension to
that norm principle of political independence and territorial integrity
(paragraph 4 of Article 2) and particularly a basic principle-pillar of
non-interference in the internal affairs (and hence internal jurisdiction) of
other states (paragraph 7 of Article 2).
These principles are basic paramount customary pillars of International
public law. At this point we must derive a conclusion, that all these
enumerated basic principles of law have been violated by the imposition of
Kumanovo Agreement under the threat of armed attack that clearly as the
consequence derogates national sovereignty and provides for the transfer of
authority to UN, nullifying Serbian presence in Kosovo and Metohija. In
paragraph 3 of Article I, subparagraphs d and e, impose apparent occupational
restrictions that blatantly derogate Serbian statehood, punishing FRY and awarding Albanian insurgency, supported
by NATO invasion forces (or as renamed by UN “KFOR”):
„d. The Air Safety Zone (ASZ) is defined as a
25-kilometre zone that extends beyond the Kosovo province border into the rest
of FRY territory. It includes the airspace above that 25-kilometre zone.
e. The Ground Safety Zone (GSZ) is defined as a
5-kilometre zone that extends beyond the Kosovo province border into the rest
of FRY territory. It includes the terrain within that 5-kilometre zone.”
Undeniably these stark “commanding style” restrictions that could by typical only for act of capitulation clearly represent a dictation of legally dubious obligations and coercive measures under the lack of any basic consent and free will in the process of treaty conclusion. Article II provides orders and commands aimed at complete and unconditional limitation of Serbian or FRY presence in Kosovo and assumption of the transfer of power under compulsory UN mandate demonstrating enforcing humiliating submission of FRY authority:
In the light of these compulsory obligations, imposed under threat, that blatantly affect a dignity of the State (FRY and Serbia) and particularly a character of blackmails associated with this unjust agreement that are fundamental to the revision of the statehood of Serbia and FRY with respect to province of Kosovo, KA needs to be qualified as an illegal act. Bearing in mind that NATO incursion on FRY clearly constitute the crime of aggression, as many time repeated by FRY officials, including fact that NATO was pursuing Kosovo’s Albanian agenda, its undeniably evident unwillingness to conclude Kosovo Agreement from the Serbians and FRY. It is blatantly clear that KA represent an example of contract unwillingly and forcefully imposed under severe pressure, threat by armed force and coercion (or against the free will and consent) of the signatory party-state to the agreement. This kind of act obviously do not abide to the imperative of Bona fides criteria, nor to the jus cogens norm of juridical equality. Undignified circumstances, from the Rambouillet Accords blackmail, followed by the crime of aggression and finally after-war the KA bring us to the self-evident conclusion that the aggressive attacks, including aerial bombardment on FR Yugoslavia would not have been ended or stopped unless such an act of extortion has been signed. The condition for peace was signing of the KA. Therefore, a signing (and thereby concluding) the KA could not satisfied “good fate” (Bona Fides) requirement, imperative norm of sovereign (juridical) equality and territorial integrity, that was undeniably violated. As mentioned above, the bona fides principle is a key component of modern legal orders and it appears to be a general principle of international law for contracting or at least emerging jus cogens norm. That fundamental legal principle requires parties to deal honestly and fairly with each other and to refrain from taking unfair advantage. By misrepresenting of NATO forces that actually committed crimes of aggression as “peacekeepers” i.e. KFOR (replacing name of the invasion force) appears to be a deception and misconception. With respect to KA we may argue that this act contain Mala Fides, since one party apparently abuse the power without any good intention to achieve common aims. Therefore, starting from the indisputable and undeniable fact that the contract was coerce-fully imposed under the threat of advancing brutal aggression with disrespect of bona fides, it should be considered that this type of contract in absence of genuine element of consent was created under illegal pressure and involving abuse of power and Mala Fides (“Bad Faith”), and hence without necessary element of validity. In that light, if we take into consideration that the military intervention (as a crime of aggression) was not previously endorsed or approved by the UN Security Council and that the war ended with an imposed “peace treaty” with KFOR as essentially disguised NATO occupational forces, under harsh pressure on state to surrender and transfer the power, we may derive self-evident conclusion that such an agreement is null and void ab initio. In the judgment of validity of the KA we should also bearing in mind that FRY Constitutional provisions with respect to sovereignty and contracting of treaties prohibits creation and conclusion of such agreements or treaties revising statehood and in that light do not confer entitlement to any official person such contracting power. Furthermore, an absence of such constitutional authority was clearly known to other contracting party (UN and NATO/KFOR). In Article 46 of the VCLT it is provided as following:
“1. A State may not invoke the fact that its consent
to be bound by a treaty has been expressed in violation of a provision of its
internal law regarding competence to conclude treaties as invalidating its
consent unless that violation was manifest and concerned a rule of its internal
law of fundamental importance. 2. A violation is manifest if it would be
objectively evident to any State conducting itself in the matter in accordance
with normal practice and in good faith.” Therefore, having in mind that
territorial sovereignty was blatantly and visibly violated, against FRY
Constitution (including obvious lack of competence for conclusion) and
principle of bona fide acts as a guiding tool/requirement to the interpretation
of the standard for conclusion of treaties, the Kumanovo Agreement (KA)
violated Article 52 of the 1969 Convention on the Law of Treaties, with illegal
coercion and abuse of power against territorial sovereignty and dignity of the
other party, disrespecting its genuine consent i.e. under Mala Fides. Furthermore,
with respect to described violations of pillars of statehood and principles on
non-intervention in domestic affairs (matters that are stricto sensu in
internal jurisdiction embedded in the UN Charter Article 2(7)), we may recall
the UN Charter Article 2 (1) bearing in mind that it protects not only the
right to "sovereign equality" of all states, but also based on the
paramount fundamental norm enshrined in it the juridical equality for all
states (persons under legal order and applicable even out of scope of the UN
system). The norm of juridical equality is therefore another general jus cogens
rule that as a basic principle originate even from the Roman law (a customary
principle "subjects are equal under the law"). Having said that, we
may consider Kumanovo Agreement (KA) as subject to a unilateral termination
under Article 53 of the 1969 Vienna Convention on the Law of Treaties (1969).
Article 53 of the VCLT provides:
“A treaty is void if, at the time of its conclusion,
it conflicts with a peremptory norm of general international law. For the
purposes of the present Convention, a peremptory norm of general international
law is a norm accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same
character.”
From that angle with respect to peremptory norms that
condemns and prohibits crimes of aggression and thereby protect territorial
integrity (as sovereign territorial right) , limitations for Serbian
self-defence (as just another jus cogens) are questionable in the Annex I of
the SC Resolution 1244 that encompasses by Serbia (and FRY) rejected
“Rambouillet Accords”. The Annex I contains “general principles” copied from
the “Rambouillet Accords”on Kosovo agreed at the G-8 Foreign Ministers meeting
held on 6 May 1999 reads:
“- Immediate and verifiable end of violence and
repression in Kosovo;
- Withdrawal from Kosovo of military, police and
paramilitary forces;
- Deployment in Kosovo of effective international
civil and security presences, endorsed and adopted by the United Nations, capable
of guaranteeing the achievement of the common objectives;
- Establishment of an interim administration for
Kosovo to be decided by the Security Council of the United Nations to ensure
conditions for a peaceful and normal life for all inhabitants in Kosovo;
- The safe and free return of all refugees and
displaced persons and unimpeded access to Kosovo by humanitarian aid
organizations;
- A political process towards the establishment of an
interim political framework agreement providing for a substantial
self-government for Kosovo, taking full account of the Rambouillet accords and
the principles of sovereignty and territorial integrity of the Federal Republic
of Yugoslavia and the other countries of the region, and the demilitarization
of the KLA; /... S/RES/1244 (1999);
- Comprehensive approach to the economic development
and stabilization of the crisis region.”
As we may derive from presented Annex I and subsequent
SC endorsement of by Serbia rejected “Rambouillet Accords”, in exact wording of
the Annex I (copy-paste ultimatum) fundamentally contradicts basic provisions
in the main part of the Resolution 1244 guaranteeing sovereignty and
territorial integrity of Serbia and FRY. In addition, it appears that KFOR
failed in its authorized task related to the impartial “safe and free return of
all refugees and displaced persons and unimpeded access to Kosovo by
humanitarian aid organizations”. Particularly, KFOR have failed in
“demilitarizing the Kosovo Liberation Army (KLA) and other armed Kosovo Albanian
groups” as required by Resolution 1244. Kosovo authorities had a duty with KFOR
related to “demands that the KLA and other armed Kosovo Albanian groups end
immediately all offensive actions and comply with the requirements for
demilitarization as laid down by the head of the international security
presence…” Contrary to that explicit
obligation, authorities in Kosovo actually created armed forces from the KLA
with a view to become a regular army, and that happened under the watch of
KFOR. Apparently, the KFOR’s action have not been impartial, as was supposed to
be. Furthermore, Security Council of the United Nations completely failed in
its commitment to “ensure conditions for a peaceful and normal life for all
inhabitants in Kosovo” and fundamentally ignored their obligations failing in
“establishment of an interim administration for Kosovo” on independent and
impartial way that could provide peaceful and normal life for all inhabitants,
irrespective of ethnicity. As for mentioned jus cogens limitation (i.e. norm of
sovereign equality of states) applicable to UN decisions, we me argue today
that FRY obligation as “withdrawal from Kosovo of military, police and
paramilitary forces” could be ignored by Serbia under blatant humanitarian
conditions of Serb population in Kosovo and Metohija or any attempt by Kosovo
Albanians to generate genocide-like conditions for exodus of Serbians. The jus
cogens norms are therefore applicable to the legality of KFOR and UN presence
or entitlement for „maintenance of peace “that appears presently to defy the
basic norms of International Law (i.e. norm of sovereign equality of states and
prohibition of exodus of people and crimes of aggression). Same conclusion goes
for an Advisory opinion of the ICJ delivered in 2010 regarding Kosovo
Declaration on Independence (2008) that was proclaimed not to be in
contradiction with sources of International Law. Even if a document of Declaration on
Independence didn’t challenge any existing rule of International Law or FRY
„Constitutional Framework”, it appears that Kosovo Albanians didn’t have legal
power for secession from the existing sovereign state (having in mind
territorial sovereignty and sovereign equality of states), at least not in
absence of proper international authorization (i.e. UNSC resolution or at least
an UNGA resolution). Without any doubt “Constitutional Framework” of both FRY
and Serbia was harshly violated and International Court didn’t understood that
simple fact in their deliberation and conclusion that were delivered in its
Advisory Opinion. In addition, International Court seems to fail to realize
that secession per se constitute an illegal act in flagrant violation of jus
cogens norm of sovereign equality of states that enshrines in itself sovereign
(territorial) integrity. If we summarize generally situation with respect to
Kosovo Agreement and Resolution 1244, it appears that legal grounds of the NATO
security presence in Kosovo in the form of KFOR and UNMIK are at least shaky,
making the territorial undefined status of “Kosovo” clearly unlawful and
therefore subject to endless negotiation between Belgrade and Pristina, that
seems to be futile. The legal limitation of NATO/KFOR presence and its role in
Kosovo and Metohija is also entirely dubious and undefined despite the clear
obligation of KFOR to protect human rights and dignity for all inhabitants of
that region regardless of ethnicity and not to allow other armed forces on this
territory to exist or emerge. It should be noted that KA and UN Security
Council Resolution 1244 (1999) does not endorse or allow any (other) military
forces on the territory of Kosovo and Metohija, while Kosovo and Metohija (in
general provisions formally) continues to be part of the territory of
Yugoslavia and Serbia. Nevertheless, Pristina created paramilitary forces and
de facto declared existence of its national army and sovereignty, preventing
any negotiation about it, with no reaction from the international community or
KFOR. Western powers and leading UN members that are also members of the NATO
strongly and visibly supported international recognition of Kosovo as a “state”
in all international organization. These actions were in direct defiance of
Resolution 1244 and KA. In addition, crucial contracting obligation of the NATO
forces (or KFOR) for demilitarization as laid down in the Resolution 1244 and
both Annexes were not honored and ignored. An attempt by international
community to resolve the issue of the status and normalization by proposing
Brussels agreement concluded by Belgrade and Pristina (2013) have failed due to
noncompliance by Pristina (Kosovo). That peacekeeping effort and compromise
accepted by Serbia (initiated by international community and EU) failed when
Pristina, with an unofficial Western support, unilaterally decided not to honor
its contractual obligation regarding creation of the Community of Serb
(majority) Municipalities in Kosovo (CSM or “ZSO”).By stark noncompliance
Kosovo’s government de facto terminated Brussels agreement and even started
with violent behavior against the Serb population and Serbian property in ZSO,
with basically no reaction of international community, UN or KFOR. Recent
attacks on Serb population in September 2021 (with respect to usage of
registration license plates) by special police of Pristina (“ROSU police”) as
paramilitary heavily armed formation clearly demonstrated that KFOR in Kosovo
and Metohija appears is not impartial peacemaker, but rather facilitator in
line with creation of the statehood for so-called “Republic of Kosovo”. As was
firmly confirmed in the General Assembly Resolution 12407 delivered on 2 March
2022 any violation of the territorial integrity or territorial sovereignty
constitute the flagrant and fundamental breach of International law and UN
Charter (case of aggression against Ukraine) equal to the violation of
peremptory norms of International Public Law.
In that light, particularly if provisional government in Kosovo and
Metohija firmly insist to become a NATO member in future, as was recently
requested the President of the Kosovo (KiM), or to intimidate Serbs or generate
an ethnic cleansing campaign against the Serb population, it is our opinion
that Serbia needs to consider adequate response to the any possible such
scenario, including own noncompliance with Annex II of the SC Resolution 1244
or even termination of the KA as an illegal act, generated after an aggression
on the FRY similar in nature as 2022 invasion on Ukraine. UNGA on 2 March 2022
in its resolution strongly denounced Russian invasion over Ukraine.
On 10 June 1999, the UN Security Council (SC), by
adopting its Resolution 1244 (1999) placed Kosovo and Metohija , a province
within the Federal Republic of Yugoslavia (FRY) and Serbia, under joint
administration of the NATO and UN KFOR (identical to NATO) as an UN
“peacekeeping force”. The resolution was passed one day after the end of NATO
military intervention against the FRY and extorted conclusion of the “Kumanovo
Agreement” (KA) on 9.June (1999). Military intervention started after FRY
rejected Rambouillet accords (as attempt for extortion and blackmail) that was
delivered in the form of ultimatum to avoid military aggression. That aspects
raised considerable controversies over the legality of subsequent NATO
aggression, including annexes to the Resolution 1244, as military intervention
was crime of aggression, i.e. compliance with basic norms of jus ad bellum and
jus cogens particularly with respect to sovereign equality of states (or
juridical equality under legal order). NATO intervention was not endorsed by UN
organs and signing of the Rambouillet agreement (accords) was precondition of
NATO not to intervene against FRY/Serbia. After resolute refusal to accept and
sign (conclude) Rambouillet accords, NATO started its incursion operation. At
this point, with no authorization of UN SC aggression by NATO can be
characterized only as an abuse of power and crime of aggression. Likewise,
conclusion of Kumanovo Agreement was an ultimatum (or condition) delivered to
FRY for ending the NATO intervention in 1999. Unless FRY and Serbia concluded
the KA, bombing and intervention wouldn’t ceased. In the process of conclusion
the KA and in the Resolution 1244 (day later), the NATO forces was merely
renamed by the UN as KFOR i.e. peacekeeping force. Therefore, conclusion of the
Kumanovo Agreement was just another example of a treaty conditioned and
extorted by the threat of armed attack, thus without legally valid consent by
parties (e.g. from FRY/Serbia). Namely, NATO blatantly abuse the power to
coerce Serbia and FRY to sign the treaty (Kumanovo Agreement) under imminent
assault threat. UN Security Council acted under Chapter VII of the UN Charter
endorsed KA as a legitimate treaty, disregarding imposed character of this act.
The Council didn’t took into consideration that external NATO military
intervention (aerial bombardment) was not authorized by UN Security Council,
neither the conditioning of the Kumanovo Agreement (KA) and blackmail
circumstances with respect to Rambouillet accords/agreement i.e.
pre-conditioning. It should be noted that Kumanovo Agreement signed on 9 June
1999 was understood by NATO officials (including M. Jackson, NATO general who
placed its signature) as agreement for military capitulation of the FRY and
Serbian armed forces. On the other side, UN implicitly defined KA as a
peacekeeping treaty in the spirit of the UN Resolution 1244 and in accordance with
the purposes of UN Charter. Many states at that time openly doubted legitimacy
of such an SC Resolution that endorsed rejected Rambouillet accords
disrespecting illegal conditioning of FRY and its provisions in harsh
inconsistency with Art. 2(7) of the UN Charter (i.e. noninterference in
domestic jurisdiction). For instance the abstention of China in the UNSC, organ
by which the resolution was approved, was clearly provoked under strong
presumption that legality for Resolution 1244 was questionable and dubious.
Kumanovo Agreement was subsequently attached to the Resolution 1244 on 10 of
June 1999, for endorsement ex post facto as its Annex II, with the view to
legalize intervention and provide a legitimate control territory of Kosovo by
NATO (essentially disguised as KFOR), despite contradicting general provisions
in Resolution claiming guaranties for sovereignty and territorial integrity of
FRY and Serbia. Wording of the Resolution 1244 conditionally provides for
conclusion of the KA as its Annex, and it appears that in the moment of its
conclusion KFOR as a party to the agreement even didn’t formally exist. Only
Security Council of the UN have authority to create or rename peacekeeping
forces under UN mandate. Therefore, Annex II is basically separable attachment
to the SC resolution. Thus in the case of an amendment or termination of the KA
provisions, the SC Resolution 1244 would still remain in force. Conditionality
of the creation of the treaty (KA) in wording of the Resolution 1244 suggests
that Annex II (KA) was legally not inseparable part of the UNSC resolution.
Likewise, in the absence of SC resolution, Kumanovo Agreement would
independently produce legal effects (rights and obligations) with respect to
the parties. As for the legal quality of the treaty, Serbian’s valid consent is
still missing, and the signatures placed on KA were legally unconstitutional
(according to the Serbian Constitution). In conclusion, Kosovo Agreement, per
se, has demonstrated its unlawfulness as far as the KFOR security presence is
concerned and to the extent of the abuse of power by NATO it is in violation of
jus cogens norms of International law. The Resolution 1244 itself goes beyond
the limits of UN legality, by endorsing and recalling the mandate provided by
the dubious Kumanovo Agreement. From practical point of view, if the KA was
potentially terminated, Serbia wouldn’t be obliged not to intervene by its
forces in Kosovo and Metohija. As for the jus cogens norms we pointed in our
research that absence of the genuine consent and disrespect for bona fides (by
the abuse of power) in treaty conclusion represent clear violation of
peremptory customary principle. Neither “effectiveness of international action”
nor general “legitimacy” under “humanitarian concerns” could justify and cure
by themselves or the legality of Kosovo Agreement. That conclusion became
self-evident after the adoption of UNGA Res. 12407/2022 condemning Russian
invasion over Ukraine. Therefore in the case of Kumanovo Agreement application
of Article 52 of the Vienna Convention on the Law of Treaties of 1969 (VLCT) is
not only possible, but also recommendable in cases of humanitarian disaster.
This Article of the VLCT provides that: “A treaty is void if its conclusion has
been procured by the threat or use of force in violation of the principles of
international law embodied in the Charter of the United Nations”. Furthermore,
in our research we found yet another source for nullification of that dubious
treaty using applicability of Article 53 of the VLCT. Article of the VLCT
provides jus cogens termination: “A treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international law.
For the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international
law having the same character.” It goes without saying that measure of
termination of the international treaty shouldn’t apply easily or with no good
reason. On the other hand in case of complete neglect and noncompliance for
duties of presumed by Kosovo’s government with respect to Brussel’s agreement
and their de facto termination of this agreement, it seems legitimate for
Serbia, in cases of humanitarian crisis sparked by Kosovo’s forces, to
terminate the Kosovo Agreement (Annex II of the SC Resolution 1244) on the
grounds provided by Articles 52 and 53 of the Vienna Convention on the Law of
Treaties (1969). Different treatment of invasion of FRY (1999) and Ukraine in
2022 clearly demonstrate double standards of international situations with
similar nature.