The Badinter mistake

In august 1991 the EU created an "Arbitration Commission" for legal advice on how to handle the situation in Yugoslavia. This commission is usually known as the Badinter Commission after its president. On 20 november the commission published its first conclusion. The remainder followed on 11 januari 1992.

The composition of the commission was rather unusual: all 5 members were famous constitutional lawyers - but not specialists in a relevant field: no international lawyers, no Balkan experts and no specialists in ethnic conflicts.

When judges don't know about a subject they are supposed to investigate the subject with an open mind and without prejudice. It is dubious whether these lawyers conformed to that image. Yugoslavia was hotly debated in the newspapers at that time and Badinter himself was known as an activist lawyer who had become famous for fighting against the death penalty in his homeland France. Also 3 to 4 months seems rather short to develop a balanced view on a completely new subject. This raises the question whether the commission was selected for rubberstamping and justifying the existing EU policy instead.

The EU policy at that time was a mix of contradicting interests. You had - specially in the US - people who saw Yugoslavia as the last communist bastion and who considered encouraging separatism as a nice way to topple it. You had also the Germans, Austrians and Hungarians who had historical ties to Slovenia and Croatia and would love to see them independent. And lastly there was the desire to keep the policy consistent with that towards the Soviet Union (most Soviet republics were recognised in december 1991).

As a result the policy was from the beginning contradictory. Slovenia declared itself independent on june 25 1991. The first reaction of the EU was not to recognize it. But the next thing it did was to send a troika to Zagreb to broke a cease-fire that meant a de-facto recognition.

To understand this blunder one should imagine the EU sending a mediator to Spain to mediate between the government and the ETA and to conclude a binding truce. The Spanish government would never accept this. They would insist to have the negotiations with the ETA alone. That way it would be their decision and it would also only their decision to end the truce. They might accept mediation to lay the contact but they would never third party involvement in the negotiations. In a normal situation third party involvement in negotiations would only be acceptable when the parties were in a military stalemate.

The core of the advice of the commission was that Yugoslavia was "in dissolution" and that the republics could be recognized when they declared themselves independent. Their borders were considered to have the same inviolability as those of independent states. This was not the first time the West tried to "dissolve" Yugoslavia: previously Lord Carrington already had made an effort.

International law knowns two types of ways a new country can come into existence. One way is that of former colonies. When colonialism ended in Latin America and Africa the existing colonial borders were maintained as the borders of the new states. The other way is separatism. Here the law is much stricter: the mother country has nearly absolute power to deny independence. A status as republic like in Yugoslavia does not automatically help: the International Court of Justice has decided that Quebec is not allowed to secede without consent of Canada.

From my viewpoint as a social scientist this distinction makes sense:
- Both in Latin America and in Africa the borders were meaningless from the ethnic point of view and there was no structured popular demand to change that. Demands for border changes tended to come from overambitious local leaders. Giving in to these commands would only cause unrest and lay the basis for future conflicts.
- In the case of separatism the situation is very different: it is usually the outcome of a long process of ethnic polarisation. Minorities on both sides of the existing borders will desperately try to have the borders changed. And everyone is aware that you will pay a price when you finish on the wrong side of the border. Even if you are not blatantly discriminated there are the small problems that come for example from speaking a minority language.
Giving the power to the motherland makes sense in this situation. It makes separatism impossible when there is not an open democratic climate. It forces the separatist firebrands to think up an acceptable solution for both sides. If they don't do so the present situation - that is usually not that bad - will stay and there is no risk for war. A revolutionary transfer of power to another ethnic group is less desirable: it can easily get out of hand - both because of protests from groups who lose priviliges and because revolutionaries tend to exaggerate in their "reforms".

The border between those two models is unclear. But situations in between had never happened and so there was no jurisprudence.

The falling apart of the Soviet Union was somewhere in between the two models. In the case of the Baltics nationalism was strong and it looked like separatism. But in many other republics independence was caused by a combination of dislike of communism and power politics by Yeltsin. So separatism and nationalism were no immediate problems and it looked a bit like the postcolonial model. Yet on the other hand the republics had been designed as belonging to one nationality and as such they implicitly became nation states pretending to further the interests of one nationality. As a consequence nationalism did rise later and many of the republics did develop ethnic and/or border problems. So both models fitted partially. The international community gave Russia the freedom to choose - in effect applying the separatism model. The situation was decided by the speedy and unconditional recognition of the other republics by Yeltsin's Russia. Although he was not formally the leader of the Soviet Union he had enough authority to decide the situation.

However, even in the former Soviet Union not everything worked. Quite a few conflicts arose and due to the excesses of newly invented nationalisms many millions found themselves forced to move to another republic. The border between Armenia and Azerbajdzjan gave immediately problems and obviously never worked. I find it amazing that Western "mediators" keep clinging here to the mantra of territorial integrity. Something similar applies to a lesser degree to Moldova.

In Yugoslavia the situation was different. Croat and Slovene nationalism had a long history and were clearly rising. This was a clear case of separatism. To arrive at the opposite conclusion the Badinter Commission used a lot of legalistic wizardry that centered on declaring Yugoslavia as "in dissolution". Others have done a good job analyzing this wizardry (see the book of Radan). I will restrict myself as a social scientist to analyzing the sorry consequences of this policy.

Normally separatism manifests itself in mass demonstrations and boycotts. If the mother country opposes it has no choice but keeping pushing. Occassionally some terrorism may develop, but this will not change the balance of power. Usually separatist leaders are careful not to break the law as this might give the national government an excuse to imprison them. As the Kosovo Albanians knew for decades: if the mothercountry opposes you don't have much of a chance.

Croatia and Slovenia however, behaved much more self-confident around 1990. It did help that they already had a considerable degree of autonomy. But even that could not explain their extreme boldness: Slovenia fired the first shots in the dissolution of Yugoslavia - aimed at conscripts with a "no shoot" order. And both Slovenia and Croatia locked Yugoslav army units in their baracks - an extreme provocation. They felt free to do so because of foreign support - both diplomatic and with massive arms supplies.

But let's consider for a moment what a commission of international lawyers might have decided. First they very probably would have concluded that this was an internal affair of Yugoslavia and that other countries had no business here. Yugoslavia was free to deny Croatia and Slovenia independence or to impose them any condition it wanted. The commission might well have gone one step further and investigated why the situation in Yugoslavia was so getting out of hand. Encouraging separatism in other countries is illegal under international law and so they might have recommended a profound investigation and prosecution of the countries involved in the arms supplies and diplomatic support to Croatia and Slovenia. Suspected countries were Germany, Austria, Hungary and the US and so this might have become very painful for the EU.

In the meantime in Yugoslavia happened what nearly always happens when you give separatists free reign: excesses. In all new republics you saw discrimination and administrative ethnic cleansing. Slovenia "erased" its minorities, Croatia refused its Serbs minority rights and used loyalty declarations as an excuse to rob them of their jobs, Macedonia treated its Albanians as second class citizens and Bosnia didn't even bother to include its Serbs in the independence process. Yet Europe preferred not to notice this and restricted itself to token reprimands.

These twin failty Western "principles" - accepting an independence based on violence and ignoring administrative ethnic cleansing - were the basis on which Milosevic based his policies in Croatia and Bosnia. After the West had shown even to ignore massive ethnic cleansing (operation Storm) Milosevic applied that principle too in Kosovo. It is popular to paint Milosevic as a kind of Hitler, but to a large extent he just showed us in an enlarged form our own lack of principles.

What troubled the discussions about Yugoslavia most in the 1991-1995 period was that Milosevic made no explicit demands. It was clear that he wanted to secede Serb areas from Croatia and Bosnia. Yet he never made claim to specific areas. If he had done so he would have had to come with (demographic) arguments and he would have had to indicate the limits of the Serb claims (no Adriatic harbour for example). Milosevic also stayed vague about whether the areas should be independent, joined wit Serbia or autonomous. This vagueness created a kind of unholy alliance between Milosevic, Bosnia and Croatia and the West. The West could keep to its Badinter principles, Bosnia and Croatia could continue to deny consessions and Milosevic could have his Serbs conquer much more territory than their numbers justified. When territorial claims were made by Serbs in negotiations it was always on an ad-hoc basis based on what they controlled at that moment. Arguments on demographic or other objective data were scarce.

The price of this situation was that the negotiations never got to the core of the problem. Normally it is the job of the negotiators to get the demands of both parties on the table together with their motives and arguments.

The vagueness had even more consequences. It allowed Western countries to support who they liked - usually Croatia or Bosnia. This had the usual harmful effects that all foreign interventions have: it created an unpredictable situation where the power distribution was not clear and shifting. Because the parties cannot estimate their strength versus the others this creates unrealistic expectations on all sides and prolongs the conflict.

It is interesting to compare this situation with two others. The partition of Czecheslovakia in 1993 happened peacefully with some minor border changes but without international mingling. I am can convinced that this was possible in Yugoslavia too. The second situation is that of Kosovo. Learning from Milosevic's mistake Serbia takes nowadays a highly formalistic approach that highlights its sovereignty. Many people in the EU interpret this as nationalism, but it is in fact just demanding the rights that every country has towards separatist provinces. It is my impression that Serbia is prepared to let Kosovo go, but on its conditions - as it is allowed to do under international law. As these conditions include an acceptable position for Kosovo's Serb citizens and monuments this may take some time. The international tendency to reward violence that is still visible in Kosovo today only prolongs this process as it leads to a worsening treatment of Kosovo's Serbs.

Officially Europe rejects border changes unless both sides agree - that is what is in the Helsinki Treaty. But in practice it does not tolerate border changes under any condition. Although an exchange of Presevo against Northern Mitrovica is a quite acceptable solution for both many Serbs and Albanians the Contact Group for Kosovo explicitly forbade it in its "principles".

The EU is afraid that border changes in Kosovo will work as a precedent for other republics like Bosnia and Macedonia. This highlights that the Badinter process has started a domino effect. In fact Kosovo is already the second stone in the domino. The Badinter Commission denied it independence, but after some time and a few fights the Western countries now feel themselves compelled to grant it independence too. And although they are still denying it it is clear to any observer that more dominos will follow. Once you start using opportunistic arguments instead of applying the law you create a free for all.

In maintaining this policy the EU is not above using tricks. One trick is pretending that when Kosovo's borders are changed all Serbia's borders will come into play. This deligitimizes the internationally accepted process for handling separatism. Even more troubling is that the West has become a bit of a defender of ethnic cleansing to adapt the population to the borders. The first time we saw that happening was in Croatia where the EU and the US hardly critisised the cleansing of the Krajna. Next in line to be cleansed are Kosovo's Serbs - half of them are gone already.

After Kosovo the situation is most serious in Bosnia. The EU still hasn't accepted that the Serbs have (and should have) some real influence. As a consequence they keep reacting like Pavlov dogs when the racist Silajdzic sends them on a guilt trip. The consequence has been a continuing polarisation that - if not stopped - will end in either separation or ethnic cleansing. The latter option is certainly possible: on forums one sees regularly Bosniaks state that Serbs will be allowed to stay only if they accept Muslim dominance (a similar type of "tolerance" is quite common in Kosovo too) and on his blog ICG's James Lyon threatened separatist Bosnian Serbs with a scenario that would end with "more Serbs on red tractors".