The Case of the Kosovo Liberation Army
In the summer of 1942, more than a quarter of a million Jews were deported from the Warsaw Ghetto to “resettle to the East”. Under the code name “Grossaktion Warschau”, the Nazis terrorized people in daily roundups, and forced them to march through the ghetto and assemble at the “Umschlagplatz” holding area. From there, they were sent aboard overcrowded trains, carrying up to 7,000 people, to the extermination camp in Treblinka. Life in the extremely crowded ghetto was miserable as it was, with people barely surviving on meager food rations; but when the people understood that the thousands of men, women, and children who were “resettled” daily were, in fact, deported to their deaths, life in the Ghetto reached a turning point.
When the Nazis temporarily stopped the deportations in September 1942, only 60,000 people remained in the Ghetto. Those who remained, however, had little doubt that the Nazis would resume their attacks and began to build bunkers and smuggle weapons and explosives into the ghetto. Two organizations formed and began to train members—the Jewish Combat Organization and the Jewish Military Union. When the Nazis resumed their attack on the Ghetto on April 19, 1943, the people in the Ghetto fought back, to the Nazis’ surprise, and forced them to withdraw. Over the next three weeks, the Nazis and the people in the Ghetto engaged in intense fighting leaving most people dead or wounded, and the Ghetto ultimately burning.
No one would look at the instance of active Jewish resistance during the Warsaw Uprising in the face of the horrors perpetrated by the Nazis and argue that the resisting fighters were rebels; that they should have accepted their inevitable deaths and not defended themselves. Since the beginning of the Twentieth Century, humanity has witnessed one genocide after another—in Armenia, Germany, Bosnia and Herzegovina, Rwanda, Cambodia, Myanmar, China, just to name a few—and the leaders of the free world were unable or unwilling to prevent any of them. More often than not, the world has stood by, sometimes in ineffective condemnation and sometimes is silence, as millions have died. When a war ends, we commemorate the victims, maybe build a memorial, and see trending hashtags like “#NeverForgetSrebrenica” on social media platforms, but the millions of victims are no longer here and any survivors are left deeply scarred. This cannot be the outcome legal scholars, such as Hugo Grotius, Samuel Pufendorf, and Emmerich de Vattel, envisioned when they sought to establish an international application of the personal right of self-defense as a fundamental general principle of international law.
The nuances of the instinct of self-preservation have provoked discussions amongst thought leaders since the Fourteenth century. Today, every contemporary legal system in the world agrees that the right of self-defense should be protected. As such, the right of self-defense forms one of the most fundamental principles of international human rights law; it is directly or implicitly part of the African Charter on Human and People’s Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Right, and the Universal Declaration of Human Rights. The Universal Declaration’s Preamble clearly recognizes the right of people to defend themselves against tyranny, with force if necessary: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law . . . .”. The principle of the Preamble is congruent with Vattel’s statement that armed resistance to an absolute ruler “ought to be attempted only in cases of extremity, when the public miseries are raised to such a height that the people may say with Tacitus … that it is better to expose themselves to a civil war than to endure them.” Similarly, the Preamble parallels William Blackstone’s statement that the primary purpose of the right to arms was “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”
Article 51 of the United Nations Charter affirms the inherent right of self-defense. The French text of the UN Charter, in particular, is instructive as it translates an “inherent” right to “droit naturel”, which means natural right or natural law. Given this choice of language, it is unsurprising that the International Court of Justice stated in the Nicaragua Case that “Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right of self-defense…”. Furthermore, the Rome Statute of the International Criminal Court instructs judges to look at the general principles of law of civilized nations. As discussed previously, the principle of the right to self-defense has been prevalent since the 14th century and is now enshrined in every contemporary legal system; it is a universal right. As such, the Rome Statute makes self-defense an exemption from criminal responsibility.
Turning then to the case of Kosovo and its history vis-à-vis Serbia, it is clear that Kosovo’s resistance to Serbia in the late 1990s was a direct result of decades of oppression and violence against its people. During World War II, Italy controlled most of Kosovo. In an attempt to recruit Kosovo Albanian soldiers for the Yugoslav army, the Yugoslav Partisan, Josip Broz Tito, promised Kosovo Albanians the right to unite with Albania after the war. In 1945, Tito’s promise was revealed as a lie, and Kosovo Albanians rose up in protest against his deception. In order to quiet the uprising, Tito declared Kosovo an autonomous province of Serbia within Yugoslavia. In reality, however, the policy-making capabilities of the province remained very limited. Kosovo Albanians suffered acts of violence, terror, and harassment at the hands of the Yugoslav Secret Police. As the Yugoslav government implemented a policy to change the cultural demographics of Kosovo, many Kosovo Albanians left the region; that trend continued until the 1960s.
In 1974, Yugoslavia adopted a new constitution, which included an equal constitutional element, meaning that Kosovo became one of eight federal units. Although not a republic, Kosovo’s authority within the Federation was now equal to that of Serbia. Following the change in Kosovo’s status there was a high Albanian birth rate within the province while Serbs migrated out due to lack of economic opportunities. As a result, the Serbs became a clear minority within Kosovo. Today, the majority of Kosovars are ethnic Albanians.
During the 1970s and 1980s, Kosovo enjoyed a high degree of autonomy within Yugoslavia. However, in 1988, a mass Kosovo Albanian uprising was triggered after Serbian nationalist leader, Slobodan Milosevic, proposed constitutional amendments limiting autonomy for Kosovo and promised to strengthen Serbia’s grip over the territory. In response, thousands of Kosovo Albanian miners marched from the Trepca mines to Pristina in defense of autonomy. The miners’ march, followed by a hunger strike, led to a general strike in Kosovo that brought the province to a standstill. Serbia responded by imposing martial law and jailing hundreds of Kosovo Albanian activists and intellectuals.
Between 1990 and 1991, the Serbian parliament passed a series of laws designed to reshape the demographic, economic, and political balance of power in Kosovo. Tens of thousands of Kosovo Albanian doctors, municipal officials, teachers, and industrial workers were dismissed from their jobs, while ethnic Serbs were given economic incentives to live in Kosovo. In response, a group of Kosovo Albanian parliamentarians secretly drafted a new constitution for the “Republic of Kosovo,” which included provisions for a new assembly and elected presidency. In September 1991, the Coordinating Council of Political Parties organized a popular referendum on whether Kosovo should be independent. During the referendum, 99% of those participating–which did not include Kosovo Serbs–voted in favor of independence.
The organizational force behind the nonviolent movement for Kosovo’s independence that followed was the League of Democratic Kosovo (“LDK”). Formed in 1989, in the wake of nonviolent revolutions in Eastern Europe, the LDK quickly grew to over 700,000 members, including ex-communists, clan leaders, and nationalist activists. The chosen leader of the LDK was Ibrahim Rugova, a philosopher, while another leader, Bujar Bukoshi, a practicing surgeon, headed a government-in-exile in Bonn, Germany. Though at first, the ethnic Albanian majority resisted non-violently, by the mid-1990s Kosovo Albanian resistance came in the form of violent retaliatory attacks conducted by several underground groups against ethnic Serbs living in Kosovo.
In response to Serbian oppression, open conflict erupted between Kosovo Albanians and the Serb military as the Kosovo Liberation Army (“KLA”) began attacks on Serbian police and Yugoslav army troops. The conflict resulted in the deaths of over 1500 Kosovo Albanians and forced 400,000 people from their homes. Following a financial meltdown in neighboring Albania, guns, sold cheaply on the black market, began to flood into Kosovo, and funding and support from the Albanian diaspora shifted from the LDK to the KLA with volunteers joining from Sweden, Belgium, the UK, Germany and the U.S. The KLA’s activity consequently led to Serbian retaliation and accompanying reports of massacres and mass graves. Kosovo Albanian villages were attacked indiscriminately and men, women and children were slaughtered, women were raped, and mosques, monuments and other Kosovo Albanian traditional architecture were damaged or destroyed, including archives belonging to the Islamic Community of Kosovo which included records spanning 500 years. Alongside the indiscriminate killings and torture Serbs committed against Kosovo Albanians, they also made every effort to strip them of their identity, history and culture.
In 1998, the U.S. State Department listed the KLA as a terrorist organization, based upon an incomplete understanding of Kosovo Albanian history, culture and heritage. In arriving at this “political” conclusion in an apparent effort to condemn attacks on “non-combatants”, the State Department failed to take Serb human rights abuses and attempts to ethnically cleanse Kosovo of Albanians. Placed in its correct historical perspective, the KLA was an ad hoc entity formed to protect a powerless ethnic group. Although imperfect in its actions, the KLA should be viewed as a group formed for the purposes of collective self-defense. Its actions should be viewed as legal under longstanding principles of international law.