The Kosovo crisis: a Dostoievskian dialogue on international law, statecraft, and soulcraft.

• Author: Delahunty, Robert J.

ABSTRACT

The secession of Kosovo from Serbia in February 2008 represents a stage in the unfolding of a revolution of "constitutional" dimensions in international law that began with NATO's 1999 intervention in Kosovo. NATO's intervention called into question the authority and viability of the UN Charter system for maintaining international peace. Likewise, the West's decision in 2008 to support Kosovo's secession from Serbia dealt another blow to the post-War legal rules and institutions for controlling and mitigating great power rivalry. Russia's later support for South Ossetia's secession from Georgia demonstrated the potential that the Kosovo precedent has for destabilizing the international legal order.

This Article takes the form of a five-act play, consisting of a series of speeches and exchanges between characters drawn from Fyodor Dostoievski's classic novel, The Brothers Karamazov. The dialogue moves on three levels. The first level is that of "normal" international law--the characters engage in a prolonged debate over the legality of Kosovo's secession that explores the usual modalities of international legal argument. The intention here is to demonstrate that when the internal conceptual resources of international law have been exhausted, they yield no decisive answer to the question of the legality of Kosovo's secession. The second level is an attempt to grasp the consequences for the international order of Russia's reemergence as a Great Power and (even more basically) of the emergence of a "multi-polar" world. The third level is an examination of the basic, but usually unstated, philosophical and theological presuppositions of "the Western idea" and "the Russian idea." The speeches in this final act of the drama intend to show how these two rival understandings yield corresponding views of the international order and, more particularly, of the proper scope and limits of international law.

TABLE OF CONTENTS INTRODUCTION KOSOVO: BACKGROUND THE KOSOVO COLLOQUIES: A DRAMA IN FIVE ACTS Act I: Kosovo and the United Nations Security Council Act II: International Law's Relation to the Charter: Questions of International Legal Method Act III: Kosovo's Secession and General International Law Act IV: The United Nations Charter as the "Constitution" of the World's Legal Order Act V: New and Old Believers' Eschatologies Part One: Speech of the Grand Inquisitor: European and Super-European Part Two: Speech of Father Zossima: A Pilgrimage to Pristina INTRODUCTION

In 2080, the 200th anniversary of the publication of Fyodor Dostoievski's celebrated novel The Brothers Karamazov, (1) the Editors discovered a remarkable document while doing research in the archives of the Kremlin in Moscow. The document was written in the decade before the outbreak of the so-called Third World War (2021-2023). Readers will, of course, recall that the Third World War, like the First (1914-1918), arose from the interaction between the nationalism of a small power and a great power's misunderstanding of that force. (2) Because of its interest, the Editors have decided to translate, edit, and publish the document.

The authors of the document (identified only as "Andrei S***" and "Alexander S***") appear to have been officials in the Russian foreign ministry, probably instructors in public international law, who were training students to become members of the Russian diplomatic corps. The document may have grown out of conversations between the instructors and their students. It has the form of a drama or dialogue. As in Dostoievski's original novel, the document describes a series of exchanges among the four Karamazov brothers. Just as Dostoievski's novel portrayed the Karamazov brothers as representing different views that reflected the tensions facing late-imperial Russia as it was entering a new era, so perhaps the authors of the document believed that post-Soviet Russia, in the Putin--Medvedev years, was entering a similar era of change. The authors had observed firsthand the collapse of Soviet communism, the disintegration of the USSR, NATO's ensuing projection of power into Central and Eastern Europe and other areas of former Soviet dominance, and the economic and political traumas that Russia underwent in the 1990s. They witnessed Vladimir Putin's successful efforts thereafter to restore Russia's great-power status. (3) They watched as the Putin-Medvedev era's reinstatement of traditionally Russian, hierarchical forms of governance and its reinvigoration of Russia's sense of cultural and moral exceptionalism led to deepening conflicts with the West on political, strategic, and ideological grounds. (4) Like some Western analysts of the period, they were inclined to regard these conflicts not merely as traditional great-power rivalries but as "civilizational" in nature. (5) They had heard Russia's foreign minister argue that the end of the Cold War marked the end of a 500-year period of Western global domination, that the world had entered into a "post-American" era, and that an emerging global leadership had to be "truly representative both geographically and civilizationally." (6)

The Editors can confidently date the creation of the document to mid-summer 2008. That period saw two major Russian initiatives, both linked to the Kosovo crisis, one of which was diplomatic and the other of which was military.

First, in summer 2008, the Russian governmental leadership launched a broad diplomatic campaign on behalf of Serbia's claim to Kosovo, which had seceded from Serbia the previous February and which was recognized by many states, especially EU members. (7) Two critically important speeches by Russia's leaders articulated a new Russian foreign policy doctrine that emphasized the core role of international institutions and public international law--the United Nations Charter above all. President Dmitri Medvedev laid out these themes in an address to Russia's ambassadors on July 15, 2008. (8) Shortly before, in a major policy statement on June 20, 2008, Russian Foreign Minister Sergei Lavrov argued that

there is no reasonable alternative to a global political architecture relying on the United Nations and the rule of international law. Let us not forget that the UN was created even before the beginning of the Cold War for use in a multipolar international system. In other words, its potential can be fully tapped only now. (9) At about the same time, the Russian government announced that it would assist the government of Serbia in securing a vote in the UN General Assembly to obtain from the International Court of Justice (ICJ) an advisory opinion on the legality of Kosovo's secession; (10) condemned UN Secretary-General Ban Ki-moon for exceeding his legal authority by facilitating the plans of the European Union (EU) (11) to replace the United Nations Mission in Kosovo (UNMIK) with its own civil administration (EULEX); (12) and called for the International Criminal Tribunal for Yugoslavia (ICTY), a UN organ created by the Security Council, to be disbanded because of its alleged bias against Serbia. (13) The combination of these initiatives demonstrated that Russia intended to use international law aggressively against the West, not least over the question of Kosovo. In effect, Russia seemed to be saying to the West that it would claim its share of "ownership" over UN organs, including the UN Secretariat; that it expected what it saw as honesty and impartiality from Security Council instrumentalities such as the ICTY; and that, if the West used its powers in the Security Council to thwart Russian aims, Russia would seek recourse in what it hoped would be more sympathetic UN fora, such as the General Assembly and the ICJ.

Second, on August 8, 2008, Russia began large-scale military operations in the former Soviet Republic of Georgia. (14) The ostensible purpose of Russia's invasion was to defend the secessionist Republic of South Ossetia from an attack by Georgia, a former Soviet Republic under the leadership of the President Mikheil Saakashvili. (15) Saakashvili's ties to the United States were exceptionally close: he had applied for NATO membership, sent Georgian troops to Iraq and Afghanistan, and named the avenue that led to the Tbilisi Airport in honor of U.S. President George W. Bush. (16) As several foreign policy analysts pointed out, the Russian leadership described South Ossetia as "Russia's Kosovo," comparing their military operations in Georgia to the West's intervention in Kosovo. (17) Russia's legal argument on behalf of its intervention in Georgia was in critical respects the mirror image of the Western argument in support of NATO's campaign against Serbia in 1999. (18) In the Security Council debate of August 8, 2008, Russian delegate Vitaly Churkin claimed that Russia had intervened to prevent Georgia from carrying out "ethnic cleansing" in South Ossetia: "How else could the events be described, when hospitals, schools and residential areas were being destroyed and when thousands of people were leaving the Republic?" (19) Russia also announced plans to investigate Georgian President Saakashvili with a view toward criminal charges before an international tribunal, (20) much as former Serbian President Milosevic had been tried before the ICTY. (21) The shadow of Kosovo thus fell over the Russian invasion of Georgia, both by feeding Russia's desire to revenge itself on the West and by providing Russia with legal arguments for use against the West to justify Russia's recognition of South Ossetia (as well as Georgia's other breakaway province, Abkazia). Russia's case with respect to Georgia reworked arguments that the West itself had fashioned with respect to Kosovo, (22) calling into question the internal consistency of Russia's overall legal position. (23)

While the document's authors were of course unaware of the role that the events they discussed would play in the outbreak of a new war, they were...