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American Diplomacy
Commentary and Analysis

September 1999

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“Waging the peace in Kosovo may prove to be much more difficult than waging the war.”

Waging Peace in Kosovo

By Barry Ryland-Holmes

Among issues raised by NATO’s intervention in Kosovo is the complex question of self-determination. Mr. Ryland-Holmes, an attorney, analyzes state sovereignty in the context of international law. Further, he asks if the search for reconciliation following intervention is realistic. Read on for his prescription on how the Global Democracy Project might play a useful role. ~ Ed.

In the decades following World War II, there has been continuing debate among scholars of international law as to whether the concept of the sovereign nation-state is sustainable in a modern world which places increasing emphasis on human rights and the right of peoples to collective self-determination. The conflict in Kosovo has intensified this debate.

It was the Treaty of Westphalia of 1648, bringing to an end the Thirty Years War in Europe, which laid the foundations of the nation state with its attendant supremacy over internal affairs. Prior to the Reformation, Europe had been regarded—and regarded itself—as a cultural whole, united in Christendom by its Holy Catholic faith. Whilst this did not stop rivalry between competing princes, it did weaken the concept of national identity. This was accentuated because the educated were united by the common language of Latin; national identity as defined by language therefore was almost irrelevant.

The Reformation permanently destroyed the cohesion of Europe. Competing communities, owing to a variety of religious allegiances, ultimately formed themselves into what we recognize as sovereign nation-states. The Treaty of Westphalia formalized the fragmentation of Europe into a multiplicity of petty states that conducted their internal affairs free from interference by other nation-states. This autonomy of action came to be enshrined in international law and applied to nation-states beyond the borders of Europe. Given this background, there can be no question that NATO’s intervention in Kosovo marks a defining moment in international law.

Kosovo could signal the beginning of a return to an almost pre-Westphalian world order where state sovereignty cedes authority to the will of an international community in which it is not religious belief that unites the countries of the developed West, but rather shared beliefs about the universal applicability of human rights. Intervention may appear to be the most appropriate course of action for any country that considers itself civilized. This policy, however, runs the risk of replacing the economic imperialism of the nineteenth century with a cultural imperialism as we enter the twenty-first.

That such action is fraught with problems and is potentially damaging to international relations was immediately demonstrated by the reaction of Russia and China. The G8 summit of June 20 seems to have gone some way to repairing the rift between the United States and Russia. This is not the case with China, however. Equally worrying is the position adopted by Greece which, while maintaining its membership of the NATO alliance, refused to participate in any initiative in Kosovo until the bombing had ceased.

NATO’s action in Kosovo raises two fundamental issues:

  • Is the peace keeping and reconciliation project a legitimate policy goal?
  • and even if it is, is reconciliation realistic?

Is peace keeping legitimate?

Most scholars of international affairs would draw a clear distinction between the intervention of the UN in Bosnia and the intervention of NATO in Kosovo. Whilst the UN is a truly international body, made up of countries from every region of the world, NATO is an entirely Western organization. This is an important distinction and one that is likely to gain in significance, given that there seems to be no question that both President Clinton and Prime Minister Blair see an increasing role for NATO in the future.

This could prove to be both a disturbing international trend and a destabilizing force in Kosovo insofar as, at least in the eyes of the Serbians, NATO lacks the legitimacy of the UN. It may well hasten the approach of a future for international relations characterized by Samuel Huntington as “the West versus the rest.” Huntington has pointed out that the future fundamental source of conflict in the world is unlikely to be either ideological or economic. Rather, the great divisions among mankind and the dominant source of conflict will be cultural. Such cultural differences are much less susceptible to resolution than either political or economic ones.

Whilst many see an international military presence in Kosovo as essential, experience in Northern Ireland and elsewhere demonstrates that troops interposed between two ethnic or religious groupings opposed to each other soon become the whipping boys for both groups’ hostilities. Moreover, of the 50,000 troops planned for the Kosovo peace keeping force, 7,000 will be U.S. service personnel. Given the need to rotate troops periodically, the reality is that this could tie up an entire US Army division for a generation.

It is nevertheless the case that many scholars of international law are moving away from a traditionalist, positivist position, where international law is seen as no more or less than the rules to which states have agreed through treaties, custom or other forms of consent. Absent direct evidence of the will of states, positivists assume that states remain at liberty to undertake whatever actions they choose. For many, this represents an old fashioned, continental European view. Indeed, some would say that state sovereignty has become the last refuge of dictatorships and totalitarian regimes the world over. Such scholars recognize alternative paradigms and seek a transformation of the concept of state sovereignty which will make a connection between the role of international law and the theory and practice of international relations. This multidisciplinary approach, they hold, reflects more truthfully the increasingly complex international environment.

Is reconciliation realistic?

Turning to the second issue raised, even if intervention and the search for reconciliation is a legitimate policy goal, is it a realistic one? Given the immense task of rebuilding the physical infrastructure, it is clear that Kosovo cannot afford to wait for that rebuilding to be completed before embarking upon the establishment of a civil society. Bearing in mind what has been said about the role of NATO, using direct government agencies to try to facilitate the establishment of a civil society in Kosovo is likely to lead to adverse effects on international relations. Thus, waging the peace in Kosovo may prove to be much more difficult than waging the war.

Project Bosnia, part of the Global Democracy Project, suitably expanded, may well provide an exemplar of the way to proceed in the reconstruction of a civil society in Kosovo. The Global Democracy Project, conceived and administered by Villanova University School of Law in Pennsylvania and its partners, established in Bosnia a temporary “virtual” legal infrastructure based on the use of computers which provided access to the world wide web.

Building a stable and lasting civil society based on the rule of law begins with a free flow of information. In Bosnia, as in Kosovo, the physical infrastructure had been destroyed by war. Rebuilding such physical resources would take years but the information infrastructure needed to establish and maintain the rule of law was required immediately. Unlike a conventional infrastructure, the internet-based system in Bosnia utilized the international network of computers linked to the internet to provide access to information by connecting the legal, political, social, economic, educational, and media communities to the outside world and to each other. Thus, Project Bosnia clearly demonstrated the potential of modern technologies to replace a physical infrastructure with a virtual one, providing the kind of information exchange essential to the day-to-day operations of legal, economic, and educational institutions.

Of course, technology alone is not enough to foster, let alone create, a civil society in a country such as Kosovo, torn by ethnic and religious hatreds. Nor can military force impose the democratic processes that are inherent in a civil society. Only a planned and comprehensive program of reconciliation, undertaken over a long period of time and displaying infinite patience with the hostile and competing parties, can ever hope to effect the kind of changes necessary to make people, of their own volition, choose to adopt the democratic processes of a civil society and to live in harmony with their former enemies. Reconciliation is not a hopeless task, but it is certainly a long-term one.

In order for the United States and the UK to maintain good international relations with other nation-states in the light of the Kosovo intervention, it is essential that the initiative for establishing a civil society in Kosovo and any programs of reconciliation should be undertaken by private institutions and nongovernmental organizations. These may be funded by individual countries’ government departments and draw from time to time on their professional expertise. But one of the reasons the Bosnian initiative was effective was precisely because it lacked U.S. (or any other) government involvement; it was thus perceived as maintaining its neutrality throughout.

Previously Kosovo was part of a larger state. It now faces the onerous task of creating a state system of its own. The Global Democracy Project, suitably expanded to encompass the economic and educational spheres, as well as the legal and providing a basis for the implementation of a comprehensive reconciliation program, all part of a Joint Regeneration Program for Kosovo, could point the way to a brighter future for that country and the enhancement of U.S. foreign relations simultaneously.

Also in this issue:   

Ambassador James Bullington on The Coming American Retreat from Global Military Intervention: "[In Kosovo] the Clinton Doctrine asserted the right to intervene militarily in humanitarian situations worldwide without regard to national sovereignty or United Nations authorization. The only constraint is that there be little or no risk to American forces."

Lawyers Harry Inman and Walter Gary Sharp on Revising the UN Trusteeship System – Will it Work?: "The international community has all the legal authority it needs to solve humanitarian crises and armed conflicts around the world. The real difficulty is gaining a consensus on what should be done and how resources will be provided."


Other recent commentary in American Diplomacy:

Walter A. McDougall, in Religion in Diplomatic History, took a different look at the Westphalian system of nation-states and the role played by religion: "Americans have been prone to justify their behavior abroad in Protestant Christian terms, however much they may disagree about what constitutes right and wrong." [Summer 1999]

Amb. Ronald Palmer, assessing the South-east Asian case in Globalism vs. Economic Nationalism: "The 1997 financial crisis revealed problems in the region that the surging growth of the earlier 1990's had obscured, problems rooted in inward-looking development strategies designed for yesterday's world." [Summer 1999]

Elvio Baldinelli on Latin American integration in Exitos y Retrocesos: “La principal explicación del poco éxito de esquemas como ALALC-ALADI y del Grupo Andino se encuentra en que los estímulos políticos que los inspiraron no fueron lo suficientemente fuertes como para vencer la oposición de intereses amparados por altísimas protecciones arancelarias.” [Summer 1999]


 Elsewhere in this issue:

 

Focus on
CHINA


The writer, based in Sheffield, England, is a senior legal counsel specializing in emerging economies. He holds an LL.M. degree from London University. He has lectured at at the Center for International Legal Studies, Salzburg, Austria, and the Sheffield Business School and has been special advisor on institutional planning and chairman of the Foundation for International Commercial Arbitration, the Hague.

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