WORLD COURT ON KOSOVO: LESSONS FOR LANKA

by Dr.Dayan Jayatilleka

(August 01, Singapore City, Sri Lanka Guardian) Students residing and schooling in Colombo had the bar to university entrance set higher in the mid 1970s, what with district and media wise standardisation the order of the day. For Arts students the Mt Olympus was the Faculty of Law, and those few who had done well enough were informed that they had qualified /been selected for the Law Fac. Getting their kids in over the high bar of standardisation was a dream for parents in Colombo. That year my name was on top of the list of Arts students eligible for the Law Faculty but as Prof Kamal Karunanayake, then registrar of the UGC would testify, I opted instead – over considerable parental pressure-- for Political Science at Peradeniya. The reason was a simple realisation that ‘law’ and ‘justice’ were two quite different things; that law was weighted in favour of the existing power structure and that politics, by contrast, would not veil reality so much as provide a key to the comprehension of the decision making core, which affected everything else including the law.


The recent verdict of the International Court of Justice on the declaration of independence of Kosovo, validated in my mind, that teenage realisation. The Court held, in a non-binding and non-unanimous judgement, that the declaration of independence was not contrary to international law. Kosovo independence was the product of NATO bombing of Serbian forces and a subsequent period of peace, under UN auspices. Bernard Kouchner was the UN High Commissioner for Kosovo- a point which I made in an article written while in Australia, when he was nominated by the EU to the Independent International Group of Eminent Persons (IIGEP). That nomination, as well as the fact that the EU had a draft resolution on Sri Lanka on the table in Geneva already in 2006 (a year before I got there and three years before the ‘last phase of the war’) told me clearly, who had what in store for our country.

The so –called peace agreement that was entered into by the West and Serbia, explicitly recognised Kosovo as part of Serbia. How then did Kosovo become independent? It was ‘shepherded’ towards independence by the powers, personalities and institutions on the ground in Kosovo. This is what would have taken place if the CFA or the ISGA or the PTOMS had remained in place. This is what would have happened had we heeded the call for ‘humanitarian international intervention’ at any stage of the war.

In the period that Kosovo was under international i.e. Western supervision and reconstruction, all under the peace agreement that recognised the sovereignty of Serbia over it, something happened. A new initiative was launched to provide a breakout from that agreement and constitute an exit ramp which would make for open secession of Kosovo. This was the plan authored by former President of Finland Martti Ahtisaari. That is the same gentleman who was brought in under President Chandrika Kumaratunga’s second (and mercifully final) term for the purpose of playing a role in Sri Lanka’s peace process, by CBK’s ‘senior advisor on ethnic relations’, a brother-in law of the author of the LTTE’s ISGA proposal, close political ally of Mangala Samaraweera, and co-negotiator for CBK on the PTOMS proposal. Sri Lanka thus avoided a Serbian –Kosovo outcome, thanks to the strenuous filibustering of Lakshman Kadirgamar, who enlisted the support of the JVP and its paper Lanka, for the purpose. For his patriotic pains, and his objections to the PTOMS talks, he was kept out of the policy loop in his final days, and unconfirmed reports have it that his security was reduced. When Mangala Samaraweera as foreign Minister proposed the name of CBK’s ‘ethnic advisor’ to the board of the newly re-titled Kadirgamar Center, a surviving member of the martyred politician objected on the grounds of the undesirability of a possible LTTE informant on the board of directors.

The Martti Ahtisaari plan on Kosovo, which clearly advocated independence for the province, ran counter to the letter of the peace agreement on Serbia’s borders and its sovereignty over the province. However, it was then adopted by the United States, and turned into official policy. Under the western umbrella, and going against Russia’s cautioning that this would violate international law, set precedents and affect the architecture of the world order, Kosovo declared independence. Now the World Court holds that it is not in violation of international law. Will the Kosovo script be next used in the Kurdish region, to further an independent Kurdistan out of Iraq, Iran or Turkey?

The lesson is very clear. Learn from the best of the West; maintain a permanent dialogue and the most cordial relations with, but do not trust the West to the point of giving it or the international institutions under its dominance, a foothold which may allow it to determine your country’s destiny -- because it will always shift the goalposts, as it did in colonial history and throughout the 20th century. If this is what it did to Christian Serbia which backed the Allies and fought bitterly against the Nazi invaders, what will it not do to us Asians?

The Kosovo model was very much in my mind during my two years, the years of our last, decisive phase, at the UN in Geneva. I wrote several articles referring to it and one was published on several Serbian websites. A point I made was that the Serbian troops should never have pulled back from their dug in positions in Kosovo despite persuasion from Yeltsin’s Russia, because, as later NATO surveys confirmed, NATO bombing had inflicted but minimal damage on the well camouflaged Serbian troops, and had NATO forces resorted to a ground campaign as was inevitable, they would have been caught in a meat grinder by the Serbian troops whose doctrine as the former Yugoslav army, was based on the great Marshal Tito’s ‘partisan warfare’.

More pertinently to us in Sri Lanka is the intensive human rights/humanitarian issues campaign waged by or through the western mass media that preceded the Kosovo war. Personalities as diverse as Fidel Castro and Justice Christie Weeramantry opposed the Kosovo bombing at the time. Respected intellectuals such as Noam Chomsky, Perry Anderson, and Tariq Ali have uncovered the lies behind the human rights campaign while Prof David Chandler traced the policy doctrine of humanitarian – actually hegemonistic—intervention, in a book From Kosovo to Kabul. The former Foreign Minister of Sandinista Nicaragua, and Catholic padre of the famous Maryknoll order, until recently the President of the UN General Assembly, Miguel D’Escoto, denounced the doctrine that ensued, the Responsibility to Protect (R2P), as the Right to Intervene (R2I)!

In a friendly, quasi-fraternal encounter at the Palais des Nations in Geneva, I suggested to Vuk Jeremic the articulate young Foreign Minister of Serbia that they should go for a UN General Assembly vote. He told me that they were first taking it to the World Court. That was a mistake, and the judgment may have a knock-on effect on the UNGA vote if taken now. Expert commentators say that Kosovo and its patrons are targeting the magic figure of one hundred.

During the last stages of the last war, Sri Lanka was to be the guinea pig of the Kosovo/R2P doctrine. This is why no compromise which made for international presence such as an office of the UN Human Rights High Commissioner or international inspection within a compressed time frame just after the war, could be the basis for any compromise in Geneva. That would have been the foothold, or the first step on the road to Kosovo.

That project, the Kosovo/R2P game-plan for Sri Lanka, is still ongoing, albeit by other means. In an article after our victory at the UN HRC Special Session, I wrote that this was either the last battle of the old war or the first one of the new war, and ventured to suggest that “a long Cold War may have just begun”.