The Role of International Institutions in Determining the Outcome of the Events of the Kosovo War, Leading up to, and Including, the Kosovo Declaration of Independence from Serbia

Kosovo became the seventh state to declare independence from Serbia (which was a part of former Yugoslavia) on February 17th, 2008, after a war riddled with human rights violations and controversy regarding the role that international institutions such as the UN and NATO played in attempting to resolve the conflict. It had been a part of Serbia within the former Yugoslavia Confederation since 1946, but there had been tensions between the Serbian majority and Albanian minority (in Yugoslavia) for years, since Yugoslav president Slobodan Milosevic came into power (as president of Serbia from 1989-1997 and as president of Yugoslavia from 1997-2000) and had started oppressing Albanians through his nationalist policies. In July 1990, ethnic Albanians declared independence, which ultimately failed and led to Milosevic stripping the right of Kosovar autonomy laid out in the 1974 constitution and the dissolution of the government of Kosovo. In March-September 1998, after nearly five years of tensions, the Albanian Kosovo Liberation Army (KLA) and Serbian police began to engage in violent clashes which led to NATO giving president Milosevic an ultimatum to stop the brutal Serbian crackdown on Kosovar Albanians. When that didn’t happen, NATO commenced airstrikes against the Serbs and the Kosovo War continued, eventually ending in failed peace talks and a Kosovar declaration of independence from Serbia, nearly ten years later.

International institutions played a large role in the events leading up to and including Kosovo’s 2008 declaration of independence from the state of Albania. Without their involvement, Kosovo wouldn’t have been successful in stopping Serb aggression and seceding from Serbia. However, the international institutions involved, namely the UN, the EU, and NATO, all played roles that led to claims of Charter violations, excessive involvement, and competition for power in the embattled Balkans region, among other things. This paper will analyze the role of international institutions in the Kosovo War, the role of international institutions in maintaining the peace following the war, and the role of international institutions in determining the legality of the Kosovo declaration of independence.

Between 1995 and 1997, the Kosovo Liberation Army (KLA) began a campaign against the majority Serb police force in in Kosovo, and claimed responsibility for several instances of sabotage against Serbian law enforcement, which saw many weapons and pieces of equipment looted from Serbian police stations over the course of a few months. In 1998, paramilitary and military fighters, acting on behalf of Yugoslavia, began to enact retribution against KLA supporters, Albanian lawmakers, and other members of the Albanian majority of Kosovo. This brutal Serbian crackdown on Albanians in Kosovo, which included crimes described by the UN Supreme Court as "a systematic campaign of terror, including murders, rapes, arsons and severe maltreatments,” led to the North Atlantic Treaty Organization (NATO) becoming involved, and the Kosovo War started in late February 1999. NATO lended support to the KLA by attacking the Serbian military from the air while the Albanian army fought on the ground alongside the KLA.

There was, and still is, much controversy regarding NATO involvement in the Kosovo War. NATO’s justification for becoming involved in the Kosovo War was that the conflict was a humanitarian necessity, but in deciding to become involved, it effectively sidestepped the UN Security Council. It also justified its actions by declaring that the conflict was disrupting the surrounding Balkan region, and the UN Charter allowed interference in such a case. Article 41 of section VII prohibits the use of force by UN member states in resolving a conflict, instead providing UN members with other ways to disable warring countries, such as “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” However, Article 42 of the UN Charter essentially provides a way to bypass the preceding clause, saying, “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.” NATO could have theoretically been completely justified if bound only under Article 41, but it failed to recognize Section VIII, Article 53 of the UN Charter, which states that “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.” Since NATO’s justification for getting involved in the Kosovo War was that the conflict was disrupting the region, it therefore should have been bound under Article 53 of the UN Charter and received approval from the UN Security Council beforehand. However, NATO sidestepped the Security Council and got involved anyways. And since the UN operates under “soft law,” it could not impel or compel NATO to stay out of the conflict. Therefore, NATO’s actions essentially rendered the Security Council to be extraneous and irrelevant on the international front. If institutions such as NATO could sidestep the UN so easily, would that render the UN as obsolete?

NATO’s decision to sidestep the UN Security Council essentially did render the Security Council as outmoded, at least in those unique situations that are similar or pertain to the handling of a conflict such as the Kosovo War. The Security Council naïvely—perhaps quixotically—hoped that it would be able to bind NATO under its Charter, but since the UN doesn’t carry force of law like a domestic government would, and since the UN and NATO are both independent world institutions that both operate under soft law, it did not have the ability to bind NATO, or vice versa. The anarchy of the global political system essentially makes it so that international institutions can sidestep each other, and NATO recognized that and was able to transcend the Security Council to become involved in the Kosovo War.

In June 1999, at the end of the Kosovo War, the UN implemented the neutral United Nations Interim Administration Mission in Kosovo (UNMIK) to administer to the Serbian province following the replacement of Yugoslavian soldiers with NATO troops, and to maintain the peace between the Serb and Albanian populations in Kosovo. The UNMIK placed Kosovo under its administration under Security Council Resolution 1244, which condemned all acts of violence against the Albanian population in Kosovo and set up an interim administration there until further action could be taken regarding the future status of Kosovo. This proved largely effective until the Mitrovica clashes, in which 19 people were killed in the worst violence between Albanians and Serbs since 1999. There has been debate over whether the UNMIK actually achieved the purposes for which it was created. While it did maintain the peace for the most part—which could be a success for UNMIK—it did not ultimately achieve its end goal of reaching a settlement with Serbia. The reason for its failure to achieve its main goal was that the UN did not include local populations in its decision-making regarding the conflict with Serbia. By neglecting the general population of Albania and leaving them underrepresented in the UN decision-making, the UNMIK eventually started to lose support and gradually became ineffective.

Starting in February 2006, the UN commenced talks on the future status of Kosovo. Later, in July of that year, the first direct talks between ethnic Serb and Albanian leaders commenced regarding the issue of Albanian independence. In October of 2006, voters in a Serbian referendum approved a new constitution which declared that Kosovo was an integral part of Serbia. This was met with a boycott from Albanians in the country, and disputes continued simultaneously with the UN peace talks. In July 2007, the pro-Albanian United States and European Union redrafted a UN resolution to drop a promise of Kosovar independence at the insistence of Russia, which was pro-Serb. The redrafted resolution contained a pledge to review the situation if, after four months of talks with Serbia, there were no breakthroughs. However, Albania grew tired of waiting for a resolution to be reached and sprung into action. On February 17th, 2008, after prolonged peace talks and rising tensions between Albanians and Serbs, Kosovo declared independence from the state of Serbia. This became the subject of much controversy (but nothing new, as this was not Kosovo’s first attempt to gain independence). Serbia once again refused to recognize Albanian independence and declared that Kosovo’s actions were illegal. Russia once again backed Serbia, but the declaration of independence was recognized by the United States and every major European power. In March 2008, one month after the declaration of independence, clashes erupted in the still-embattled Mitrovica, with Serbs fighting against UN and NATO forces, which ended with the death of a UN peace officer and tensions between the UN and Serbia.

In June 2008, the new Kosovo constitution transferred power from the minority Serbians to the majority Kosovo Albanians. This was met with resistance from the Serbs, who established their own rival assembly in Mitrovica. In October 2008, the UN General Assembly voted to refer the case of the legality of the Kosovo declaration of independence to the International Court of Justice (ICJ). Two months later, Serbia accepted the European Union Rule of Law Mission in Kosovo (EULEX), an EU mission that took over police, justice, and customs services from the UN. The Serbian decision to accept an EU mission over the UN further led to growing fears of UN irrelevance

In July 2010, the ICJ ruled that the Kosovo Albanians did not transcend the boundaries of the law in declaring independence from Serbia, saying “the adoption of the declaration of independence of the 17 February 2008 did not violate general international law because international law contains no 'prohibition on declarations of independence.’” It also declared that Kosovo did not violate Security Council resolution 1244, since it did not describe Kosovo’s final status or reserve the right to the Security Council to come to the conclusion regarding that final status. This monumental decision was one that was not one that was lightly reached. It came after a civil war which killed nearly 10,000 people, then a decade of uncertainty as Kosovo remained a UN protectorate. Certainly the issue of the legitimacy and the legality of the declaration of independence of Kosovo divided many of the member-states of the UN, the EU, and NATO. Many states opted to take positions of neutrality in hopes to alleviate the risk that if many states either supported or opposed the Kosovar declaration of independence that it would set precedent in future similar situations. Pro-Serbia Russia refused then and still now refuses to recognize Kosovo as a sovereign state, with it’s foreign minister stating "Kosovo’s Provisional Institutions of Self-Government declared a unilateral proclamation of independence of the province, thus violating the sovereignty of the Republic of Serbia, the Charter of the United Nations, UNSCR 1244, the principles of the Helsinki Final Act, Kosovo’s Constitutional Framework and the high-level Contact Group accords.” Its Russian ambassador to Serbia, Aleksandr Konuzin, speaking to Serbia, said that Russia would help it "defend its sovereignty and territorial integrity.” He further stated "Kosovo echoes in the hearts of all Russians with the same pain as it does in your hearts.” Russia also exacerbated the fears of the issue of Kosovo setting precedent, using it as its justification for its highly controversial and not entirely legal annexation of Crimea. On the contrary, the United States, Great Britain, and France have long expressed their support of Kosovo and recognized it as a sovereign state shortly after it’s declaration of independence. This has understandably divided the Big Five Powers and influenced Security Council proceedings for several years.

In conclusion, the Kosovo declaration of independence was successful after considerable help from international institutions. NATO altered the course of the Kosovo War by lending support through air strikes on the oppressive Serbian regime, and by alleviating the ethnic tensions and stopping the violence that led to massive human rights violations. The UN, with Kosovo as it’s protectorate, also allocated substantial resources and aid to Kosovo. The UNMIK, acting under the authority of the UN, further halted flare-ups of ethnic tensions and violence, and stopped clashes and uprisings like the Mitrovica clashes. The ICJ’s ruling regarding the legality of the Kosovo declaration of independence also changed world politics (especially among the Big Five powers of the Security Council) and inadvertently set judicial precedent which Russia used as its justification for its annexation of Crimea.

The actions of some international institutions, such as NATO, also raised the question of how far can they go? NATO deliberately transcended the bounds of the UN’s and its own Charter by becoming involved in the Kosovo War. That raised questions regarding the relevance and efficacy of the UN in such conflicts. The UN, while it was able to regain control from NATO following the Kosovo War, ultimately had the UNMIK fail to achieve its end goal of sponsoring peace talks with Serbia. The UN was also forced to concede authority in Serbia over to the European Union-based EULEX, which further led to the irrelevancy that the UN experienced during the conflict.

Overall, international institutions played a large role in the events leading up to and including the Kosovo declaration of independence. Although power flip-flopped between the UN, the EU, and NATO, it is clear that they were vital actors in alleviating and determining the outcome of the Kosovo secession.