[R-G] Daphne Winland, "Mapping a Legal Geography of Yugoslavia's Disintegration"

[Yoshie Furuhashi]

<http://mrzine.monthlyreview.org/winland290709.html>
Mapping a Legal Geography of Yugoslavia's Disintegration
by Daphne Winland

    Ana S. Trbovich.   A Legal Geography of Yugoslavia's
Disintegration.   Oxford: Oxford University Press, 2008.  xiv + 522
pp.  $80.00 (cloth), ISBN 978-0-19-533343-5.

Ana S. Trbovich's A Legal Geography of Yugoslavia's Disintegration is
a valuable intervention in the long running and, at times, torturous
debate over the collapse of the former Yugoslavia.  The book provides
a richly detailed, if not exhaustive, interpretation of the legal
constitutional landscape of the region and its history.  The author's
academic and political credentials, most recently as director of the
Center for European Integration and Management of Public
Administration at the University of Singidunum in Belgrade, as well as
her service as assistant minister of International Economic Relations
for the government of Serbia, is reflected in her extensive knowledge
and experience in the intricacies and nuances of political decision
making.  Trbovich chronicles the complex national state administrative
and political incarnations of Yugoslavia, focusing primarily on
post-1914 Yugoslavia.  To this end, she carefully maps out the complex
legal and political terrain -- the "legal geography" -- of the former
Yugoslavia.  The evolution of Yugoslavia as a state is meticulously
researched, evidenced in extensive footnotes and citations, including
scholarly work, a host of relevant legal statutes, resolutions, and
reports.  The list of maps as well as an extensive bibliography
containing primary and secondary sources are excellent resources for
those interested in both international law and the Federal Republic of
Yugoslavia (FRY).

The purpose of the book becomes clear early on, and that is to make a
case for what the author argues was the complicity of the
international community in the break-up of the former Yugoslavia and
the illegal use of force in 1999 against the FRY by NATO forces.  Most
important though is Trbovich's analysis of what she argues is "an
almost complete reversal" of international practice of respect for the
territorial and constitutional integrity of sovereign states (p. 1).
To this end, the author carefully lays out the legal, juridical, and
constitutional grounds for intervention in the internal affairs of
states by citing contexts where such action has been used not only
legitimately but also in concert with international law and principles
of sovereignty, as well as with respect for the integrity of state
legal and constitutional structures.  Trbovich begins her analysis
with an examination of the problematic and selective interpretation of
two pivotal international legal principles -- self-determination and
secession -- and how, in the case of Yugoslavia, misguided assessments
on the part of the international community led to the demise of
Yugoslavia and the bloody wars of secession that followed.  She
demonstrates how policy decisions based on the protection of minority
and human rights -- ubiquitous and, some argue, hegemonic concepts for
which there are no consensual definitions -- undermine the credibility
and force of international law.  Thus, for example, when does a
minority become a "people" deserving of the political right of
self-determination?  The dubious viability of particular (minority)
rights regimes (and here the author cites the case of Kosovar
Albanians) raises questions about the legality of claims for
self-determination that often serve to undermine the integrity of a
state's constitution.  According to Trbovich, discussion and debate is
better served by a focus on constitutional and legal provisions and
precedents than by appeals to universal moral principles.

The author charts the historical development of the Yugoslav
federation beginning in 1918 when Serbian, Croatian, and, to a lesser
extent, Slovenian and other national movements were solidifying the
ideological foundations of what would later become demands for
self-determination and, eventually, secession in 1991.  Throughout the
book, Yugoslav regimes after 1918 all receive positive valuation
relative to those of other states in the region.  This is attributed
to a history of democratic governance and recognition of the rights of
Yugoslavia's constituent nations.  The histories of Kosovo i  Metohija
(the name enshrined in the Socialist Federal Republic of Yugoslavia
constitution, dropped by Josip Broz Tito in 1974, and then reinstated
by Slobodan Milošević in 1989), Croatia, Slovenia, and the other
Yugoslav republics and provinces are examined with particular emphasis
on the challenges they have posed to the legitimacy of Yugoslav
federal administrative borders and to the state itself.1  Among the
historical examples the author uses to bolster her analysis, World War
II comes under particular scrutiny as a period when Croatia aligned
itself with the fascist Axis powers in 1941 and perpetrated atrocities
against Serbs, Jews, and others.  According to Trbovich, the actions
of the fascist Ustasha state against Serbs amounted to genocide.
While debates about the roles and responsibilities of Croats, Serbs,
and others during this period, and charges of genocide and ethnic
cleansing rage on, the author focuses mainly on the claim that Serbs
were the primary victims of Croatian genocide.  The fascist taint of
Croatia during World War II is extended to the 1990s in reference to
Croatia's offensive in Krayina (Krajina).  The choice of language is
significant: "Thus while Serbs are admonished for expelling Croats . .
. the cleansing of numerous Serbs . . . occurred unnoticed" (p. 302,
emphasis mine).

The tendency to present evidence to support one's arguments to the
neglect of that which may cast doubt is not unusual in the scholarship
on Yugoslavia, but it is somewhat troublesome given the lengths to
which Trbovich has gone to present a comprehensive, extensively
researched, and balanced perspective on the region and its history.
For example, the omission of highly respected scholarship on Kosovo
and Bosnia, such as Noel Malcolm's Kosovo: A Short History (1998) and
Bosnia: A Short History (1994), and Julie Mertus's Kosovo: How Myths
and Truths Started a War (1999) is curious at best, as is that on
Serbia, such as Robert Thomas's The Politics of Serbia in the 1990s
(1999), and Jasminka Udovički and James Ridgeway's Burn This House:
The Making and Unmaking of Yugoslavia (2000).  The book also, at
times, betrays a certain degree of hostility toward Croats, claiming
ultimately that the foundations of Croatia's grievances against
Yugoslavia amount to historical revisionism.  While few would deny the
brutality of Croatia's WWII fascist past and their actions in
Operations Storm and Flash, Trbovich seems compelled to exonerate
Serbs of any wrongdoing, reflected in frequent allusions to the
"conciliatory" nature and peaceful intentions of FRY and their
continuous willingness to compromise (p. 298).  For example, the
Yugoslav National Army is deemed to have "acted only in self defence"
in responding to the "illegal use of force by secessionists" (p. 283).
 Scant attention is devoted to the culpability of the Milošević regime
and of Bosnian Serbs for the brutal war in Bosnia and Herzegovina
(including the four-year siege of Sarajevo), the massacre at
Srebrenica, the destruction of Vukovar, and, more generally, the
central role of extreme nationalism during the 1990s.  If the author's
intention is to present a balanced argument that focuses mainly on the
constitutional and legal grounds of intervention in the affairs of
sovereign states, then greater care should have been taken to present
an evenhanded treatment of all parties to the conflict.  The use of
value-laden terms, such as "pogrom" in relation to Serbs only, as well
as accusations of ethnic cleansing and genocide against Albanians and
Croats to the exclusion of Serbs, is deeply problematic and diminishes
the persuasiveness of Trbovich's analysis, especially in the face of
overwhelming evidence to the contrary (pp. 355, 406).

Trbovich's analysis of the events leading up to and during the NATO
bombing of Belgrade represents more careful and balanced analysis of
the role of international bodies in intervention.  Although the author
mainly identifies discrimination of Serbs at the hands of Albanians in
Kosovo (even though the reverse is well documented), Trbovich makes a
compelling case against the controversial series of decisions that led
to NATO's air campaign against FRY in 1999.  The rush to respond
resulted not only in devastating consequences for those caught on the
ground, but also serious repercussions for the process by which claims
for self-determination are assessed and acted on by the international
community.  Trbovich makes a strong case for her assertion that NATO's
actions in FRY have compromised the principles on which international
laws and precedents concerning state sovereignty are built.  For
example, Trbovich invokes the rules of jus ad bellum  (law governing
the right to go to war) and jus in bello (conduct of war once it has
begun) embedded in the UN Charter, to underscore her contention that
NATO actions were a direct violation of the UN Security Council
process to which it was accountable and that diplomatic initiatives to
resolve the conflict peacefully were not exhausted.  The justification
that followed the NATO campaign -- humanitarian intervention -- is
thus flawed on both moral and legal grounds.  Trbovich's argument is
ever more urgent given the troubling spate of interventions by the
West since 2001 in Iraq and Afghanistan and the looming threat of more
to come.  Her analysis confirms the critiques of many legal scholars
who argue that debates concerning intervention in Kosovo or Bosnia and
Herzegovina are increasingly difficult to evaluate, given that they
often appeal to realist, relativist, and/or moral principles.
Exceptions to prescriptive legal statutes and conventions, not to
mention realpolitik, are becoming the norm in international affairs.

The final two chapters of the book thus provide some useful lessons
for thinking about conditions under which international intervention
is necessary and/or legitimate.  Although in hindsight it is perhaps
easy to say that the political fates of both Kosovo and Bosnia and
Herzegovina remain precarious, Trbovich argues convincingly for the
need for greater commitment to early diplomacy in reaching negotiated
solutions and cautions against the increasingly problematic trend
toward the enforcement of democratic governance and the compromising
of territorial sovereignty.  This, according to the author, ultimately
represents an abrogation of our collective duty to respect the
integrity of state constitutions, sovereignty, and international law.
While readers may find some observations, analogies, and/or
conclusions drawn by the author objectionable, her contribution to the
debates over the uses and abuses of international treaties, and laws
around intervention in the context of human and minority rights, is a
welcome and necessary one.



Note

1  The transliteration of Serbian names to phonetic English will be
confusing to those who, particularly in the past fifteen to twenty
years, have grown accustomed to reading script (sometimes with
diacritics) in the Roman alphabet.  Thus, a commonly cited name such
as Milošević appears as Miloshevich.

Daphne Winland is Associate Professor at the Anthropology Department
of York University.  This review was first published by H-Soyuz  (July
2009), titled "The Disillusion of Yugoslavia: And the Beat Goes On,"
under a Creative Commons 3.0 US license.