TransConflict is pleased to present the ninth part of a chapter of “Confronting the Yugoslav controversies – a scholars’ initiative”, entitled “Independence and the Fate of Minorities (1991-1992).”
By Gale Stokes
Serbian rejection of this proposal shows how fundamental the issue of minority status was to the Serbs. For their part, the members of the EC felt that it would be possible to protect the rights of minorities, even substantial ones, if the new countries of Croatia and Bosnia accepted the European norms on minority rights. These norms began to emerge as aspects of international law after World War II. The Charter of the United Nations, for example, declared that its signatories were determined “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, [and] in the equal rights of men and women of nations large and small.” Members of the UN agreed to promote “respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Between 1948 and the collapse of communism at least seven international conventions prohibited a variety of violations of human rights, such as genocide, discrimination against women, torture, and other cruel, inhumane or degrading treatment, while at the same time protecting various civil, political, economic, social, and cultural rights. Two institutions in particular, the Council of Europe and the Conference on Security and Cooperation in Europe (later the Organization for Security and Cooperation in Europe—OSCE), were responsible for tending to these rights, although neither had the ability to intervene in a sovereign country to protect the rights of minorities. Thus, even though Europeans felt that the rights of Serbs in Croatia and Bosnia should be protected, no mechanisms were in place to insure that they would be.
If we discount the rhetoric and Milošević’s willingness to resort to ethnic cleansing to establish the hegemony of Serbs, did the Serbian position have a reasonable basis? To some extent it did. For some Serbs, a proposal that made Serbs a minority rather than sovereign in Croatia—and might do the same later in Bosnia—simply perpetuated what they considered the injustices of borders established after 1945 by the communists. Why, the Serbian historian Dušan Bataković asks, was Kosovo, whose Albanian population constituted only 8.5 percent of the total population of the Serbian republic, made an autonomous region in Serbia, while the Serbian population of the Krajina, even though Serbs constituted 14.5 percent of Croatian population, was not? And why was the Vojvodina given autonomous status in part for historical reasons, while the even better established historical identity of Dalmatia was not recognized? These were not entirely illegitimate questions. The thing that almost all outside observers found illegitimate, besides the unwillingness of Serbs to make the same concessions to Kosovar Albanians that they were asking for Serbs in Croatia and Bosnia, were the steps that Milošević took to respond to these grievances. Rather than insisting that the international community enforce minority rights in Croatia or Bosnia, he chose a war of ethnic cleansing to establish Serbian rights. The international community believed minority issues would be answered when Croatia and other recognized states adhered to human rights standards and when they provided special status for places like Krajina. The Serbs did not think this likely.
The European Community faced several issues of international law in working through their decision to move forward with recognition. The first was how to consider the breakup of Yugoslavia. Serbia claimed that Croatia and Slovenia had seceded, and therefore had no right to any assets formerly belonging to the SFRY. On the other hand, other republics argued that Yugoslavia had simply disintegrated, and therefore they were entitled to their fair share of those assets. To advise it on the legal issues involved, the Conference on Yugoslavia created an arbitration commission of five constitutional judges headed by the President of the French Constitutional Council, Robert Badinter. Near the end of November 1991, the commission reported and the Conference ruled that “the SFRY is in the process of dissolution.” The commission based its judgment on the observation that the central government of the SFRY did not effectively exercise control over parts of the country. This raised the intriguing question of whether it would be possible for any entity in a federal state to bring about the dissolution of that state by simply ceasing to participate in it, surely not a principle that other states with minority issues, such as Spain, would find acceptable. Indeed, the implication of this ruling was that unitary states, such as the Serbs were demanding, are more desirable than federations or confederations because they are less susceptible to secession, an interesting decision in the age of the European Union. The decision also deprived Serbia and Montenegro of their international legal standing. Since the SFRY had “dissolved” rather than suffered the secession of several republics, technically it no longer existed, and in fact Serbia and Montenegro had to regain diplomatic recognition in the year that followed.
‘Independence and the fate of minorities’ is a component of the larger Scholars’ Initiative ‘Confronting Yugoslav Controversies’ (Second Edition), extracts of which will be published on TransConflict.com every Friday.
65) Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen, 2nd ed. (Philadelphia: University of Pennsylvania Press, 2003), 188.
66) The percentages are as cited by Dušan Bataković, Yougoslavie: Nations, Religions, Idéologies (Lausanne, Switzerland: L’Age D’hommes, 1994), 242-43. According to the figures cited by Tim Judah, the percentage of the Albanian population of Serbia as a whole in 1991 was 16.6 percent, and of Serbs living in Croatia as a whole was 12.2 percent. Actually, of course, most Croatian Serbs did not live in Krajina, but in Zagreb and other urban areas. Tim Judah, The Serbs: History, Myth and the Destruction of Yugoslavia (New Haven: Yale University Press, 2000), 343-44.
67) James Gow argues, in fact, that “the committing of war crimes was the essence of Serbian strategy in the war” in The Serbian Project and Its Adversaries: A Strategy of War Crimes (London: Hurst, 2003), 2.
68) For thorough discussions of the legal issues surrounding recognition, see Marc Weller, “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia,” The American Journal of International Law 86, no. 3 (1992): 569-607; and Roland Rich, “Recognition of States: The Collapse of Yugoslavia and the Soviet Union,” European Journal of International Law 4 (1993): 36-65.
69) Daniele Conversi has argued that in fact it was not Croatia and Slovenia who were seceding, but instead Serbia. By setting such aggressively irredentist conditions for maintenance of Yugoslavia, Serbia purposely undermined the relatively balanced structure of the state and insured its breakup. See his “Central Secession: Towards a New Analytical Concept? The Case of Former Yugoslavia,” Journal of Ethnic and Migration Studies 26, no. 2 (2000): 333-56, and “The Dissolution of Yugoslavia: Secession by the Centre?” in The Territorial Management of Ethnic Conflicts, ed. John Coakley (London: Frank Cass, 2003), 264-92.
70) Comments by Zoran Oklapčić have informed the discussion of the Badinter Commission, as have the critical remarks of Josip Glaurdić, “Review Essay: Charles Ingrao and Thomas A. Emmert, eds., Confronting the Yugoslav Controversies: A Scholars’ Initiative,” East European Politics & Societies 24, no. 2 (2010): 294-309.
71) Opinion No. 1, 29 November 1991, in The International Conference on the Former Yugoslavia: Official Papers, ed. B. G. Ramcharan (The Hague: Kluwer Law International, 1997), 1259-61.
72) See Hurst Hannum, “Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?” Transnational Law and Contemporary Problems 3 (Spring 1993): 64.