Self-determination: Chechnya, Kosovo, and East Timor.

• Author: Charney, Jonathan I.

Hindsight always appears better than foresight. Hopefully, the reexamination of past events will provide lessons for the future. Recent media reports have analyzed the genocide in Rwanda and blamed France, the United States, and the UN Security Council for their failures to take steps that might have prevented or stopped the atrocities.(1) Academic studies also argue how the atrocities in Chechnya, Kosovo, and East Timor may have been prevented or stopped by the United Nations or others in the international community.(2) Such analyses are for international relations authorities and military experts. As an international lawyer, I am reluctant to tread in those domains. For me, the question is whether changes in international law might modify the behavior of major international actors such as states, intergovernmental organizations, and nongovernmental organizations. In the future they might be better prepared if situations like Chechnya, Kosovo, or East Timor were to arise. Certainly, there is no lack of international law condemning the atrocities that took place in those territories. The existence of the International Criminal Tribunal for the Former Yugoslavia (ICTY)--with authority to prosecute persons who committed international crimes in Kosovo--did not appear to deter Slobodan Milosevic and his supporters in their drive to crush the Kosovo independence movement and ethnically cleanse the region.(3) No international criminal tribunal had jurisdiction over the Russian actions in Chechnya. While some hope that the establishment of the permanent International Criminal Court (ICC)(4) will deter the commission of international crimes, its efficacy remains unproven. Samuel Huntington might chalk these events up to the inevitable clashes of civilizations during the "multipolar and multicivilizational" period he argues we have entered.(5) While fate may be on the side of continuing and escalating conflicts of this nature, it is incumbent upon us to seek ways to minimize or eliminate recurrences of these events anywhere in the world.

Chechnya and Kosovo have many parallels. Not only did the events take place in the same general time frame but both involved ethnic minorities seeking a degree of autonomy or independence from relatively non-democratic and dictatorial regimes.(6) East Timor, albeit slightly different, provides interesting similarities.

At the legal heart of these matters is the law of self-determination. In its classical incarnation after the establishment of the United Nations, self-determination seemed to be only the vehicle for decolonization, resulting in a multitude of independent states.(7) More difficult is the arguable application of this doctrine to the post colonial period.(8) Some argue that it has no application outside of decolonization. Others argue that it may, but does not permit secession from an established state outside of the colonial context.(9) These authorities and others might recognize so-called internal self-determination that would allow a minority group the protection of group rights and certain autonomy within the established state but no right of secession.(10) At the far other extreme, it might be argued that a territorially-centered coherent group has the inherent right to decide for itself whether to remain part of the state in which it is located or to choose independent statehood. Debates have raged among international lawyers and diplomats over the right of self-determination in the non-colonialist context. One might even argue that this uncertainty has itself contributed to many human tragedies the world has witnessed in the post-World War II period by giving false hope to minority groups that they have rights to autonomy or independence against the states in which they are found, even absent a colonial history. That assertion may fail to take into account the many other factors that contribute to minority unrest and hopes for autonomy or independence. It is likely, however, that this legal uncertainty has encouraged minority group claims and other difficulties that have been left to fester by the international community. The rise of the general international law of human rights and the consequential erosion of the UN Charter Article 2.7 limitations on matters of domestic concern have provided further expectations of international support for minority group claims.(11)

Thus, one task of the international community should be to clarify the right of self-determination in non-colonial situations. The clearer the law on the subject, the less likely groups will assert unfounded claims or engage in risky provocations. Reciprocally, legally supported claims of self-determination may deter egregious actions by the mother state and will encourage other states to lend appropriate support to such lawful claims of self-determination.

Although it is for the international community to develop the international law in this area, one may find the seeds of a solution in recent developments. It is interesting to compare the international community's reactions to the events in Chechnya and Kosovo. While in Kosovo the international community essentially endorsed the Albanian Kosovar's claims to self-determination,(12) in Chechnya the reactions were more muted, essentially focusing on opposition to the violence used by the Russians against the Chechens without reference to their possible right to self-determination, within or without Russia.(13)

This distinction may be easily dismissed by experts in international relations due to the fact that the Federal Republic of Yugoslavia (FRY) is a relatively poor country that was run by a person already indicted by the ICTY for international crimes--Slobodan Milosevic--and his supporters.(14) On the other hand, Russia despite its troubles was a significant military power with substantial economic resources. Its government was ostensibly democratic, albeit at the margins. Furthermore, it is a permanent member of the UN Security Council, holding the veto right.(15) These distinctions are powerful and may suffice. In the past the admitted power of the Soviet Union, however, did not immunize it from severe pressure by the international community to open its society. This pressure substantially contributed to its disintegration and the formation of several independent states out of its empire.(16) Thus, despite differences founded in power politics, the distinction between the situations in Kosovo and Chechnya may be worth examination.

One can make historical arguments to justify conclusions about the legality or illegality under international law of the larger states' sovereignty over these two territories. Both populations have long histories of serious violent conflicts with the states within which they were situated.(17) Both involve minority populations with major distinctions that would classify them as a separate people.(18) There are other distinctions, however, and they may be significant in the law of self-determination, if it is applicable.

In the case of Kosovo, the Albanian Kosovars had obtained a degree of autonomy in their province within the Socialist Federal Republic of Yugoslavia (SFRY). After the demise of the SFRY, the FRY took unilateral steps to eliminate that autonomy and took draconian steps against the Albanian Kosovars.(19) For several years, nevertheless, the Albanian Kosovars tried all peaceful means at their disposal to seek an accommodation. These efforts were rewarded only with greater suppression by the Serbs in control of the FRY.(20) The nonviolent Kosovar actions during this period also demonstrated that there existed deep and widespread support among the Albanian Kosovars for efforts to preserve their self-determination.(21) This led ultimately to the foundation of the Kosovo Liberation Army (KLA) that only then sought independence from the FRY and used violence to seek that goal.(22) Those efforts were met with violence and greater suppression by the FRY.(23) After efforts by the United Nations and NATO appeared to fail to resolve the crisis,(24) NATO unilaterally took action to protect the Albanian Kosovars.(25) This ultimately resulted in a UN Security Council sanctioned occupation and administration of Kosovo that operated as if Kosovo was de facto independent of the FRY.(26)

In contrast, Chechnya's path to the declaration of independence was a unilateral process, devoid of any efforts aimed at some negotiated accommodation.(27) It might be plausible to conclude that Chechnya managed to secede, de facto, without a major use of force between the time that the Soviet Union collapsed and a relatively stable Russian government emerged two years later.(28) During this period of de facto independence, the Chechen government failed to build any viable institutions of an independent state, and instead turned to criminal sources of support.(29) During that period, Chechnya became a center of criminal activities of extraordinary proportions.(30) In the end, it is even hard to conclude that the positions of the regime represented the...