KOSOVO & YUGOSLAVIA: LAW IN CRISIS

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"Kosovar Independence": Muenzel's Biased Pro-Greater Albania Approach

Prof. Dr. Oliver Antic
Dean, Faculty of Law, University of Belgrade
Director, Institute of Comparative Law, Belgrade

Prof. Dr. Frank Muenzel, the author of “What Does Public International Law Have to Say About Kosovar Independence?”, is a law faculty member (extraordinarius) of the highly respected Goettingen University and is also part of the renowned Max Plank Institute. Therefore it is reasonable to assume that an article by such an author would constitute an objective and profound academic contribution. The length of the article and a large number of footnotes also give a first-glance impression of a serious and authoritative text. To our astonishment, instead of at least an artful presentation, the author nonchalantly aligns himself with Greater Albanian lobbyists and propagandists, twisting both historical facts and principles of international law. Instead of a scientific argument, Dr. Muenzel clearly advocates a political goal: independence of Kosovo. It is especially shocking that he, as a scientist and a professor of international law, disregards an obvious question – what would the consequences be for international public law and order if a province of any contemporary state achieved independence?

Since a thorough analysis of a 34 page article would require at least the same length for a response, we will here consider only the most blatant absurdities contained therein.

  1. The very first word in the text is “Kosova” with a footnote explanation that this is the Albanian name for Kosovo. Throughout the article Dr. Muenzel uses exclusively Albanian names for places in Kosovo. This clearly reveals a pro-Albanian attitude from the very beginning. The constitutional name of the province is “Kosovo (and Metohija)” and since it is a part of Yugoslavia, one should use official (in this case even historically approved) toponyms, or at least denote them bilingually. Would it be proper to call ubiquitously the Polish city Gdansk as Danzig or Croatian city Rijeka as Fiume or French province of Lorraine as Lothringen, etc., unless there is some ulterior reason to do so?

  2. The last sentence, as a final conclusion of the paper, reads: “Measures should be taken to pursue the criminal and civil liability of the Yugoslav aggressor”. It is incredible that a professor of International Law could consider a sovereign state as an “aggressor” on its own territory! It is erroneous, or should we say – ludicrous, to equate the notion of ‘aggression’ with ‘forceful methods’, if this was the point the author was trying to make. Only a highly biased person (who overlooks the elementary terminology and legal principles of his own discipline) could make such a presentation.

  3. One of the most frequently quoted sources for statements and facts in the article is the Web site www.kosova.com (note: “Kosova”, not “Kosovo”) which is an extremely biased pro-Albanian site with no reliable information on it. It is always quoted without criticism, particularly when some doubtful factual information is to be proven (e.g. notes 5, 6, 9, 11, 17, 21, 23, 25, 32, 33). Also, a large majority of the quoted literature is Albanian (e.g. notes 5, 6, 8, 10, 13, 14, 17, 18, 19, 20, 23, 27, 28, 29, 30, 32, etc.). A university professor is not expected to quote second hand sources. Dr. Muenzel, however, bases his “findings” for the most part on various statements of Albanian authors instead on genuine and recognized texts (see for example note No. 8, where the Serbs are accused of carrying out massacres with 30 to 40 thousand victims in July 1919, allegedly reported by a French consul in Skopje – an accusation based on a quotation from an obscure writer from the communist era in Albania (Shaban Braha)). Proven Web sites are not used, such as http://www.strategicstudies.org/crisis/newrome.htm#-NATO. But, people at Internet usually do not have time to look at notes.

  4. The article quotes no source but takes as true that 92% (no more, no less) of Kosovo’s population is of Albanian ethnicity. The truth is that Albanians boycotted every census for the past twenty years so that it is impossible to make precise estimates. Although by no means a large majority, it should be noticed that they represent only about 15% of Serbia’s entire population. In addition, let’s not forget that the figure of approximately 90% non-Serbs living in Kosovo and Metohija includes a significant portion of non-Albanian ethnic groups – Turks, Slav Moslems, Gypsies, etc.

  5. Dr. Muenzel talks about the Kosovo “pacification” by Serbs after the First Balkan War in 1912 without ever mentioning the previous extermination of Serbs carried out by Turks and Moslem Albanians and the resulting migrations which eliminated at least 250.000 Serbs from the region after the Congress of Berlin (1878-1912). He also interprets in his article that the end of the First Balkan War “deprived” Albania of Kosovo by the London peace treaty and the Florence protocol of 1913. I wonder how the International Law and history would look like if one would so easily neglect solutions achieved at peace conferences? Accordingly, the author is unable to provide any evidence to substantiate the claims of the newly established Albanian state over Kosovo and Metohija. His claim that until 1912 “the Country” (sic!) – i.e. Kosovo, was part of one of the Albanian vilayets (provinces) within the Ottoman Empire not only proves that Dr. Muenzel knows nothing about the organization of the Ottoman Empire (where neither “Albanian” nor “Greek” or any other ethnic provinces existed), but throws an unpleasant light on him as an extremely biased (read: non-academic) author.

  6. This professor of International Law claims that “Yugoslavia occupied the area in 1919”, denying thus the role of the Versailles Peace Treaty which recognizes Yugoslav sovereignty over Kosovo and Metohija and other international documents and decisions such as the League of Nations’ Commission which defined the Yugoslav-Albanian border in 1921. In his article he simply proclaims that Kosovo is “occupied” even though even Albania itself recognized and still recognizes Yugoslav frontiers as legitimate. Dr. Muenzel’s invention – “Occupation of Kosova” – is a basis for most claims in his article.

  7. The article claims that in 1945, after World War II, about 50.000 Albanians were killed as “nationalist, separatists and other enemies”. Again, there is no source for this highly exaggerated estimate. It is indisputable that Tito’s communist regime exterminated all kinds of “state enemies”, especially Serbian “chetniks”, not only Albanian “balists”.

  8. The author’s statement that in 1974 “Kosova.... became a constituent part of the FRY (Federal Republic of Yugoslavia)” is both false and manipulative: six Socialist Republics were the only constituent parts of the SFRY (Socialist Federative Republic of Yugoslavia). Article 2 of the 1974 Constitution of SFRY reads: “SFRY consists of SR Bosnia and Herzegovina, SR Macedonia, SR Slovenia, SR Serbia – while the Socialist Autonomous Province of Vojvodina and the Socialist Autonomous Province of Kosovo are within SR Serbia, SR Croatia and SR Montenegro”. Kosovo was never regarded as a constituent part of Yugoslavia by any constitution, i.e. it never had the status of a Republic. Nevertheless, the article labels Kosovo as a Republic all the way in attempt to find (false) grounds for a claim for its independence.

  9. The article asserts that “Albanian deputies... on July 2, 1989 declared Kosova a separate republic of the Yugoslav federation, in 1990 passed a new Kosovar constitution and finally, on Sept. 22, 1991, declared Kosova independent... Today the country has a parliament, a president and councils...”. From this twisted perspective the learned professor sees “Kosova” as a “country” and bases his further conclusions on this premise. In fact, these acts were unconstitutional in Yugoslavia and illegal by international law standards, which is why they found absolutely no recognition in the entire international community.

  10. The rest of the first part in the article, named – “Facts”(!?), excuses the debut of the KLA and even glorifies it without a single mention of its terrorist character. That the KLA is a terrorist organization is claimed even by some US officials (see e.g. C. Hedge’s article in the New York Times, March 29, 1999). There is also a close connection between the KLA and organized crime which inevitably keeps popping up in the media every once in a while (for more details see the article by Prof. Michael Chossudovsky from the University of Ottawa, www.wsws.org/articles/1999/apr1999/kla-a10.shtml).

  11. The second part of the article, named – “Legal Evaluation”, contains an effort to show that Albanians from Kosovo have the right of self-determination which provides a basis for its independence. Instead of pointing out numerous specific inconsistencies in connection with this ridiculous attempt, one should simply recall Paragraph 7 of the Declaration on Principles of International Law, which deals with the question of external self-determination. It is stated clearly there that the right to self-determination shall not “be construed as authorizing or encouraging any action which could dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples”. As L. Henkin points out “it is accepted that self-determination... does not include a right of secession for a people from an existing State” (General Course of Public International Law, 1989, p. 143). Or, to put it in M. N. Shaw’s words: “whether the federation dissolves into two or more States also brings into focus the doctrine of self-determination in the form of secession. Such dissolution may be the result of an amicable and constitutional agreement or may occur pursuant to a forceful exercise of secession. In the latter case, international legal rule may be pleaded in aid, but the position would seem to be that (apart from recognized colonial situations) there is no right of self-determination applicable to independent states that would justify the resort to secession” (International Law, Cambridge 1991, p. 139).

  12. Dr. Muenzel frequently obscures “facts” and portrays a false picture of historical developments. The German-Austrian occupation of Serbia (including Kosovo and Metohija) during the 1915-1918 period “destroys” – in his words – everything that had been established in Albania and “Kosova” in 1913. The temporary occupation of Serbia by military forces of his native country (as well as by the Austro-Hungarian and Bulgarian troops) represents, according to him, an environment in which “Serbian and Montenegrin state authority … was driven out of Albania and Kosova and replaced first by a local Albanian administration under Austro-Hungarian military authorities … and later by Albanian partisans.” May I remind the Goettingen professor that any occupation must be treated only as a de facto possession of a territory and that no territorial claims based on such a factual situation can be risen subsequently. It could also be useful to remind him that the Serb Army defeated German, Austro-Hungarian and Bulgarian forces in the autumn of 1918 and liberated its entire country including Kosovo and Metohija. He calls that liberation an “occupation” (p.3), insinuating that “of the Serbian … rule of parts of Albania, including Kosova, in 1913, nothing was left in 1918. Therefore (he concludes), the 1913 situation is of no importance here.” On the contrary: the 1913 situation is the only relevant one, at least from the public international law point of view.

  13. To make the case for a forceful separation of Kosovo from Yugoslavia more convincing, Dr. Muenzel tries to equate the problem with de-colonization, claiming that Kosovo was a colony of Yugoslavia! His reasoning is: “Its rich mineral resources have been exploited without benefit to Kosova” (p.17). In reality, a huge national tax on capital to subsidize development of Kosovo was in effect for almost 25 years (1966-1990). He goes on to claim that “it (Kosovo) is subjected to an apartheid regime...” (p.17). In reality Albanians fully participated in state institutions, held important political and administrative functions including the position of the President of Yugoslavia after Tito’s death (Mr. Sinan Hasani, an ethnic Albanian, was president of Yugoslavia in the 1981/82 term). Furthermore, they enjoyed the highest international standards for ethnic minorities such as education in their native language up to the university level. A strange colonial status, isn’t it? It was only after the series of separatist steps, taken by certain Albanian political parties between 1989 and 1991 (mentioned above, under 9)), that the Kosovo Albanians on a wide scale decided to refrain from participation in the political life of Serbia and FR Yugoslavia.

  14. The article tries to argue that in given circumstances “War (is) a Duty under International Public Law”?! (p.19). It is more than strange that a professor of International Law advocates and excuses this war, labeling it as a duty. He concludes that this tragic war will end only “when Kosova is recognized as an independent state… (which would) also demonstrate the illegality of the Yugoslav occupation of that state”. We are speechless!

  15. Finally, the article is justifying military intervention in Yugoslavia (circumventing any decision of the UN Security Council) as a “Justifiable Defense Against Genocide and Violation of the Geneva Convention” and in “Duty to Support Justified Defense”. Instead of our comment, please see the article by J. Lobel and M. Ratner “Humanitarian Intervention in Kosovo: A Highly Suspect Pretext for War”, in the Academic Commentary of this Web site: http://jurist.law.pitt.edu/acad-op.htm#Jules.

  16. An invalid analysis inevitably leads to an invalid summary: that Kosovo was annexed by Yugoslavia in 1918 (although borders were internationally recognized by the League of Nations), that the right of the “Kosovars” to self-determination is not restricted to a right to internal autonomy (no matter what kind of precedent this would establish in International Law and the consequences it would have on all states with ethnic groups which are trying to secede), that “the Republic of Kosova” already exists (although it is more than evident that this notion is absent both in internal Yugoslav constitutional law and in international public order), etc. One can hardly find elsewhere such an example of biased presentation of views, disguised in the form of an academic paper. When a professor from such prominent university engages himself in praising, even glorifying German and Austro-Hungarian occupation of Serbia in the WW I as an act which derogated the pre-war international legal order, while labeling the 1918 liberation of Serbia and Montenegro, carried out by Serbian and other allied forces, as “occupation” (as far as it concerns Kosovo and Metohija), the issue of his motivation can not be disregarded. I would be less concerned if the cause for Dr. Muenzel’s biased approach is hidden in the traumas from the past (i. e., in the defeat of his country in both world wars).

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