The ICJ Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo and the International Protection of Minorities

Björn Arp

doi:10.1017/S2071832200018873

¹ G.A. Res. 63/3 (Oct. 8, 2008).Google Scholar

² This worry of the Court can be seen from the extensive arguing on the discretion the Court has to deliver an Advisory Opinion, according to Article 61, ¶ 1 of the Statute of the International Court of Justice [hereinafter the Statute]. It carefully weighed all possible arguments, including those submitted by States in their observations. Advisory Opinion on the Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo, 2010 I.C.J. 141, ¶ 29 – 48 (July 22) [hereinafter Advisory Opinion]. This dutiful compliance with the burden of rendering an Advisory Opinion in a politically shaded case is enlighted by a number of declarations and dissenting opinions, whose volume outweighs by far the actual text of the Advisory Opinion and which bring some clarity into this topic. They really constitute the “opinion” of “advisory” character for any reader of these materials, although they do not reflect the opinion of the Court as an institution. Indeed, some judges expressed their disagreement with this narrow focus of the Court. Judge Simma, for instance, disqualified the Court's ruling declaring that “the Court could have delivered a more intellectually satisfying Opinion, and one with greater relevance as regards the international legal order as it has evolved into its present form, had it not interpreted the scope of the question so restrictively.” Declaration of Judge Simma, ¶ 7.Google Scholar

³ This argument had been advanced by some States in their submissions. Just to mention the most relevant contributions to the debate before the Court, we ought to point out that Estonia considered that Kosovo had the right to external self-determination as an ultima ratio, after all other possible solutions had been exhausted. Estonia's Written Submission, ¶ 2.1.2. This State also considered that due to the particular circumstances of the facts, this was a sui generis case, which had to be treated in a different manner than previous situations. Also, Ireland adhered to the idea of remedial secession. Ireland's Written Submissions, ¶ 7(d). The Netherlands considered that the independence of Kosovo was justified on the ground of remedial secession; see Netherlands’ Written Submissions, § 3. Poland considered that Kosovo was indeed a sui generis case, and also that there exists a right to remedial self-determination, see Poland's Written Statements, § 6. Switzerland adhered to this argument in its Written Submissions, and offered a long reasoning as to how this right to remedial secession had been recognized in international law. See Switzerland's Written Submissions, ¶ 81–86 (with exhaustive anaylsis of the violations of international rules protecting minorities in Kosovo.)Google Scholar

⁴ Advisory Opinion, ¶ 81.Google Scholar

⁵ This argument was certainly the most common which amalgamized the different factual and legal aspects discussed by the majority of States. Among others, it was implicitly defended in its written submissions by the Czech Republic, see Czech Republic's Written Submissions, at 12, Conclusions. Also Denmark considered that the declaration of independence formulated by Kosovo was a sui generis case, mainly because of two reasons: the history and dissolution of the SFRY and the S.C. Res. 1244. Denmark's Written Submissions, at 6. France, too, acknowledged the sui generis character of the Kosovo situation, from which there cannot be drawn conclusions as to other situations in international practice. France's Written Submissions, § 2. Germany dedicated to the sui generis argument section V of its written submissions, bringing up a number of arguments why this is such a unique case. Germany's Written Submissions, § V, at 26–27. The same approach was followed by Japan, Japan's Written Submissions, at 5–8, which almost exclusively delt with the sui generis character of Kosovo. The United Kingdom, too, followed essentially the argument of Kosovo being a sui generis case, see United Kingdom's Written Submissions § I, ¶ 4.Google Scholar

⁶ See Special Envoy of the Secretary-General on Kosovo's future status, ¶ 16, U.N. Doc. S/2007/168 (2007). It should also be noted that the analysis of State practice shows that the only case where after 1945 a new State was recognized outside the colonial context by an overwhelming number of third States was Bangladesh. The United Nations did not treat Bangladesh as a territory that had exercised the right to self-determination, but rather as a fait accompli achieved as a result of foreign military assistance in special circumstances. This may show that until now the only way of admitting a new State into the international community without the consent of the predecessor State is by arguing its sui generis character. See more in detail about this precedent, James Crawford, The Creation of States in International Law 415–416 (2nd ed. 2006).Google Scholar

⁷ Council of Europe Treaty Series (ETS) No. 157.Google Scholar

⁸ Advisory Opinion, ¶ 80.Google Scholar

⁹ S.C. Res. 1244 (June 10, 1999) already specified that it decided that “the main responsibilities of the international civil presence will include protecting and promoting human rights” (¶ 11(j)). The provisions contained in S.C. Res. 1244 were further developed in UNMIK Regulation 2001/9 (May 15, 2001) on a Constitutional Framework for Provisional Self-Government. Chapter 3 enumerates a list of international human rights instruments, inter alia the Convention on the Elimination of All Forms of Racial Discrimination, the European Charter for Regional and Minority Languages and the Framework Convention for the Protection of National Minorities. The Constitutional Framework itself says that these instruments are “directly applicable” in Kosovo. Chapter 4 of this Framework is dedicated to the “Rights of Communities and their Members,” where community means “communities of inhabitants belonging to the same ethnic or religious or linguistic group” (Constitutional Framework, ¶ 4.1). The many rights provided for minorities reflect to a large degree those contemplated in the Council of Europe FCNM, in contrast to the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, G.A. Res. 47/135 (Dec. 18, 1992), which does not contain all the rights found in the Constitutional Framework. It should be noted that ¶ 4.5 and 4.6 provide for a control mechanism that gives the Special Representative of the Secretary General of the United Nations (SRSG) the right to intervene, in accordance with S.C. Res. 1244, for the purpose of protecting the rights of communities and their members. We have here, in essence, a field where general international law, as represented by the action of the United Nations through S.C. Res. 1244, meets the requirements of European law in the field of national minority protection. Unfortunately, the ICJ has not entered into these considerations, which might have been necessary for understanding the whole relevance of the question posed to it by the General Assembly.Google Scholar

¹⁰ ¶ 9 of the Agreement between the United Nations Interim Administration Mission in Kosovo (UNMIK) and the Council of Europe on Technical Arrangements Related to the Framework Convention for the Protection of National Minorities, adopted on 23 August 2004, available at http://www.coe.int/t/dghl/monitoring/minorities/6_Resources/PDF_Agreement_UNMIK_en.pdf (last visited July 29, 2010).Google Scholar

¹¹ This idea is explained in many Advisory Committee opinions. See, e.g., Opinion on Hungary, CoE Doc. ACFC/INF/OP/I(2001)004, ¶ 49 (Sept. 14, 2001).Google Scholar

¹² See, e.g., for instance, Report of the Council of Europe Commissioner for Human Rights’ Special Mission to Kosovo, 23 – 27 March 2009, ¶ 3 CoE Doc. CommDH(2009)23 (July 2, 2009).Google Scholar

¹³ S.C. Res. 827 (May 25, 1993), as modified by S.C. Res. 1660 (Feb. 28, 2006).Google Scholar

¹⁴ ¶ 14 of the operational part of S.C. Res. 1244, “[d]emands full cooperation by all concerned, including the international security presence, with the International Tribunal for the Former Yugoslavia.”Google Scholar

¹⁵ The notion of remedial secession is used by some contemporary legal writers who argue that a minority deprived of the most basic human rights can ultimately claim independent statehood. This voice for remedial secession, although under different names, has been raised at least since the seventies of the XX century, as a further development of the law of decolonization. See, for a comprehensive description of this process and more bibliographical indications, Dietrich Murswiek, The Issue of a Right to Secession – Reconsidered, in Modern Law of Self-Determination, 21, 25–27 (Christian Tomuschat ed., 1993); Gerd Seidel, A New Dimension of the Right of Self-Determination in Kosovo?, in Kosovo and the International Community. A Legal Assessment, 203, 206–212 (Christian Tomuschat ed., 2002).Google Scholar

¹⁶ Advisory Opinion, ¶ 80.Google Scholar

¹⁷ Preamble of the FCNM, ¶ 12.Google Scholar

¹⁸ In regard to the conflict in Chechnya this might be less clear, since apparently the Advisory Committee considers it out of question to discuss the territorial integrity of the Russian Federation. This is why the Committee demands from the Russian government the establishment of a well functioning administration in Chechnya when it comes to secure the rights under Article 7 of the FCNM (freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion). See First Opinion on the Russian Federation, CoE Doc. ACFC/INF/OP/I(2003)005, ¶ 141 (Sept. 13, 2002). Here, in regard to Article 7 of the FCNM, for instance, the Advisory Committee finds “that in Chechnya and in the areas directly affected by the conflict in Chechnya, a number of limitations of the rights under Article 7 have been reported and considers that the cessation of hostilities and consolidation of a well-functioning administration that fully respects human rights is essential for the implementation of Article 7 of the Framework Convention.”Google Scholar

¹⁹ First Opinion on Georgia, CoE Doc. ACFC/OP/I(2009)001, ¶ 12 (Oct. 10, 2009). In this context, the Advisory Committee took automatically for granted the territorial integrity of Georgia, and expressed its view on the conflicts in the two separatist regions as follows: “The Advisory Committee encourages the Georgian authorities, and all of the parties concerned, to step up their efforts and take an open and constructive approach with a view to finding a just and lasting solution to the conflict as soon as possible. In doing so, the principles enshrined in the Framework Convention must be fully respected to guarantee the rights of persons belonging to national minorities throughout the Georgian territory.”Google Scholar

²⁰ First Opinion on Moldova, CoE Doc. ACFC/INF/OP/I(2003)002, ¶ 11 (Mar. 2002), where the Advisory Committee confirmed, once more, that “[c]oncerning those areas outside the effective control of the Government, the Advisory Committee can but join all those who have expressed the hope that a lasting and just political solution to the existing problems will be found. The Advisory Committee hopes that such a solution will protect the interests of all persons concerned, in conformity with the territorial integrity of the country and the principles of international law, and in accordance with Article 21 of the Framework Convention.”Google Scholar

²¹ First Opinion on Azerbaijan, CoE Doc. ACFC/INF/OP/I(2004)001, 3 (Jan. 26, 2004). The Advisory Committee states textually, that it “expects that the eventual solution will protect the rights of all persons concerned, in conformity with the territorial integrity of the country and other principles of international law.” It should be noted that here the Committee made it very clear that whatever solution might be found, it would have to be “in conformity” with territorial integrity. This seems to discard the option of Nagorno-Karabakh reintegrating into Armenia or constituting itself as a separate State.Google Scholar

²² First Opinion on Kosovo, CoE Doc. ACFC/OP/I(2005)004, p. 3 (March 2, 2005).Google Scholar

²³ Id. ¶ 20, at 9–10.Google Scholar

²⁴ Id. at 3. Textually, the Advisory Committee said that, “The implementation and the monitoring of the Framework Convention is a particularly challenging task in Kosovo. The complexity of Kosovo's institutional arrangements means that the respective responsibilities of different international and local authorities are not always clear. Uncertainty as to the future status of Kosovo further complicates the picture.”Google Scholar

²⁵ Id. at 4.Google Scholar

²⁶ Second Opinion on Kosovo, CoE Doc. ACFC/OP/II(2009)004, p. 4, fn. 3 (May, 31 2010).Google Scholar

²⁷ Id. at 5, ¶ 10.Google Scholar

²⁸ Id. at 48, ¶ 273.Google Scholar

²⁹ Id. at 50, ¶ 293–295.Google Scholar

³⁰ Id., see especially ¶ 299: “Take resolute measures to strengthen inter-ethnic dialogue and mutual understanding, including in areas where persons belonging to the majority are in a minority position; elaborate and implement a comprehensive strategy for reconciliation and inter-ethnic dialogue.”Google Scholar

³¹ Second Opinion on Serbia, CoE Doc. ACFC/OP/II(2009)001, ¶ 215 (June 25, 2009). It speaks diplomatically of “comprehensive and adequate” solutions to this recognition, yet still it would be a recognition.Google Scholar

³² This was stated in the case of the Deutsche Continental Gas-Gesellschaft v. État polonais, Award of 1 August 1929, IX Recueil des Décisions des Tribunaux Arbitrales Mixtes 344 (1930). These criteria have also been reiterated in more recent practice, such as the Arbitration Commission of the International Conference on Yugoslavia (Badinter Arbitration Commission) in its First Opinion adopted on 29 November 1991, where it stated in ¶ (b) that, “the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority;” see 31 ILM 1494 (1992).Google Scholar

³³ See Advisory Opinion, ¶ 26, where the Court has recognized that although some States in their submissions said that “international law does not regulate the act of making a declaration of independence, which should be regarded as a political act; only domestic constitutional law governs the act of making such a declaration,” the Court bases its jurisdiction to give an Advisory Opinion on questions of international law. Then, the Court went on to explain: “In the present case, however, the Court has not been asked to give an opinion on whether the declaration of independence is in accordance with any rule of domestic law but only whether it is in accordance with international law.” The same reasoning was already put forward, among others, in the written submissions of the United States of America; see Written Submissions of the United States of America, p. 56.Google Scholar

³⁴ Adopted by G.A. Res. 61/295 (Oct. 2, 2007), where in Article 38 it is stated in general for all rights contained in the Declaration: “States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”Google Scholar

³⁵ Adopted by G.A. Res. 47/135 (Dec. 18, 1992). Article 2 of this Declaration regulates the right of persons belonging to minorities “to participate effectively in cultural, religious, social, economic and public life.” Id. ¶ 2. It furthermore stipulates that “persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.” Id. ¶ 3.Google Scholar

³⁶ The European Convention on Human Rights and Fundamental Freedoms was adopted in Rome on 4 November 1950, ETS No. 005. For political participation is particularly important Article 11 of this Convention, which regulates the freedom of association, including in political parties. Furthermore, Article 3 of the Additional Protocol (20 March 1952, ETS No. 009) to the European Convention enshrines the right to free elections.Google Scholar

³⁷ In this context there should be mentioned Article 15 of the FCNM, according to which “[t]he Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.”Google Scholar

³⁸ There can be consulted, among others, United Communist Party of Turkey, et al. v. Turkey, 1998-I Eur. Court H.R., ¶ 61; Yazar et al. v. Turquie, 2002-II Eur. Court H.R., ¶ 57; and Selim Sadik et al, v. Turkey (No. 2), 2002-IV Eur. Court H.R., ¶ 47 in relation to ¶ 27–40.Google Scholar

³⁹ Socialist Party et al. v. Turkey, 1998-III Eur. Court H.R., ¶ 47; and Partie de la Liberté et la Démocratie (ÖZDEP) v. Turkey, Judgment of 8 December 1999, Case No. 23885/94, ¶ 41.Google Scholar

⁴⁰ Yazar et al. v. Turkey, 2002-II Eur. Court H.R., ¶ 49; and mutatis mutandi also Socialist Party et al. v. Turkey, 1998-III Eur. Court H.R., ¶ 46–47; and Lawless v. Ireland, Judgment of 1 July 1961, Series A, No. 3-A, ¶ 7 of the legal considerations.Google Scholar

⁴¹ Opinion on Albania, CoE Doc. ACFC/INF/OP/I(2003)004, ¶ 72 (Feb. 18, 2003). In the same sense, see Opinion on the Czech Republic, CoE Doc. ACFC/INF/OP/I(2002)002, ¶ 70 (Jan. 25, 2002); Opinion on Hungary, supra note 11, at ¶ 47; in regard to the Travellers, see Opinion on Ireland, CoE Doc. ACFC/INF/OP/I(2004)003, ¶ 95 –96 (May 5, 2004); Opinion on Romania, CoE Doc. ACFC/INF/OP/I(2002)001, ¶ 65 (Jan. 10, 2002); and Opinion on the United Kingdom, CoE Doc. ACFC/INF/OP/I(2002)006, ¶ 94 (May 22, 2002).Google Scholar

⁴² Indeed, it should be noted here that according to the Constitutional Framework there is guaranteed ample representation to minorities. Nevertheless, since the ICJ itself has admitted that the declaration of independence was not adopted by any of the institutions created under this Framework, it is understandable that for the declaration their rules were not followed. In any case, Chapter 9.1.3. (b) of the Constitutional Framework provides for twenty “reserved seats” in the 120 member Assembly. Ten seats are reserved for representatives of the Kosovo Serb Community, and the other ten seats have to be allocated to the Roma, Ashkali and Egyptian Communities (4 seats), Bosniak Community (3 seats), Turkish Community (2 seats) and Gorani Community (1 seat).Google Scholar

⁴³ Indeed, the ICJ recognized that the declaration of independence has not been of a properly representative character. It was adopted on 17 February 2008 by 109 out of 120 members of the Assembly of Kosovo (which is one of the organs of the Provisional Self-Government of Kosovo, established in accordance with SC Res. 1244, although the Court did not give due regard to this fact). The ten representatives of the Serb national minority did not take part in the vote of the Declaration. Neither did one member of the Gorani community. See Advisory Opinion, ¶ 76. Since the Court needed arguments for justifying its position that the Declaration was not adopted by any institution which belongs to the Provisional Self-Government of Kosovo, this absence of the members of Serbian and Gorani origin was only welcome. Nevertheless, international law hardly would support the validity of a declaration of independence proclaimed by more than one hundred representatives of a population without any representative of the 7% of Serbian population, plus a smaller number of other national minorities, which were also not represented.Google Scholar

⁴⁴ Albania called the vote, where the Serb representatives did not take part, as an “overwhelming majority of the representatives of the people of Kosovo,” see Albania's Written Submission, ¶ 103. Austria took up a very formalistic argument put forward previously by the Special Representative of the Secretary General of the United Nations and stated that “[e]lections regularly held since 2001 and opent to the entire population of Kosovo entitle the members of the Assembly to act as representatives of the Kosovar people,” see Austria's Written Submission, ¶ 16.Google Scholar

⁴⁵ Opinion on Armenia, CoE Doc. ACFC/INF/OP/I(2003)001, ¶ 77 (Jan. 15, 2003).Google Scholar

⁴⁶ Id. at ¶ 82; Opinion on Azerbaijan, supra note 21, at ¶ 74; Opinion on Bosnia and Herzegovina, CoE Doc. ACFC/INF/OP/I(2005)003, ¶ 105 (May 11, 2005); Opinion on Moldova, supra note 20, at ¶ 90; Opinion on Poland, CoE Doc. ACFC/INF/OP/I(2004)005, ¶ 85 (Sept. 30, 2004); Opinion on Serbia and Montenegro, CoE Doc. ACFC/INF/OP/I(2004)002, ¶ 111 (March 2, 2004).Google Scholar

⁴⁷ In its analysis of Bosnia and Herzegovina the Advisory Committee underlines the notable difference between the protection of the constitutive nationalities of this State and the other national minorities which reside in it; see Opinion on Bosnia and Herzegovina, CoE Doc. ACFC/INF/OP/I(2005)003, ¶ 107 (May 11, 2005). The same happens in regard to other minorities elsewhere in Europe. See for the case of the Skogfinns, Opinion on Norway, CoE Doc. ACFC/INF/OP/I(2002)003, ¶ 61 (Feb. 13, 2003). Also in the Russian Federation this problem was raised by the Advisory Committee, because there minorities are in a different position when they are constituted in one of the republics than then they are not; see Opinion on the Russian Federation, CoE Doc. ACFC/INF/OP/I(2003)005, ¶ 102 (July 10, 2003). And in the FYROM there exists the risk of monopolyzign the debate about minorities on the relationship between Macedonians and Albanians; see Opinion on the FYROM, CoE Doc. ACFC/INF/OP/I(2005)001, ¶ 95 (Feb. 2, 2005).Google Scholar

⁴⁸ See among others, Opinion on Albania, supra note 41, at ¶ 75; Opinion on Austria, CoE Doc. ACFC/INF/OP/I(2002)009, ¶ 71 (May 16, 2002); Opinion on Bosnia and Herzegovina, supra note 46, at ¶ 108; Opinion on Croatia, CoE Doc. ACFC/INF/OP/I(2002)003, ¶ 65 (Feb. 6, 2002); Opinion on Hungary, CoE Doc. ACFC/INF/OP/I(2001)004, ¶ 54 (Sept. 14, 2001); Opinion on Lithuania, CoE Doc. ACFC/INF/OP/I(2003)008, ¶ 81 (Sept. 25, 2003); Opinion on Moldova, CoE Doc. ACFC/INF/OP/I(2003)002, ¶ 93 (Jan. 15, 2003); Opinion on Norway, CoE Doc. ACFC/INF/OP/I(2002)003, ¶ 63 (Feb. 13, 2003); Opinion on Poland, supra note 46, at ¶ 90; Opinion on Romania, supra note 41, at ¶ 69; Opinion on Serbia and Montenegro, supra note 46, at ¶ 101; Opinion on the Slovak Republic, CoE Doc. ACFC/INF/OP/I(2001)001, ¶ 47 (July 6, 2001); Opinion on Slovenia, CoE Doc. ACFC/INF/OP/I(2005)002, ¶ 72 – 74 (March 14, 2005); and Opinion on the FYROM, supra note 47, at ¶ 102.Google Scholar

⁴⁹ The Advisory Committee explained this idea when it criticized the party system in foce in Albania until the year 2000. This system did not allow the registration of any political party based on national interests of minorities, which was the case, among others, of the Greek party Omonoia. See further about this case, Opinion on Albania, CoE Doc. ACFC/INF/OP/I(2003)004, ¶ 71 (Feb. 18, 2003). In the same sense, see also Opinion on Lithuania, CoE Doc. ACFC/INF/OP/I(2003)008, ¶ 75 (Sept. 25, 2003).Google Scholar

⁵⁰ This was the method used in Bosnia and Herzegovina; see Opinion on Bosnia and Herzegovina, supra note 47, at ¶ 102, 104; and in regard to the guarantee of seats for the Serb minority in Croatia; see Opinion on Croatia, supra note 48, at ¶ 60 – 61. In regard to the application of this method to Hungarians and Italians in Slovenia, see Opinion on Slovenia, supra note 48, at ¶ 71.Google Scholar

⁵¹ The Advisory Committee commented positively on this method to guarantee the minorities’ participation in regional parliaments in Germany. There, the electoral threashold of 5% is not applied to parties of national minorities in the Länder of Schleswig-Holstein and Brandenburg. See Opinion on Germany, CoE Doc. ACFC/INF/OP/I(2002)008, ¶ 63 (Sept. 12, 2002). Poland also applies this system for the elections to the Seijm and the Senate; see Opinion on Poland, supra note 46, at ¶ 86.Google Scholar

⁵² Opinion on the FYROM, supra note 47, at ¶ 94.Google Scholar

⁵³ Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Case No. IT-04-84-T, Judgment of Trial Chamber I of April 3, 2008, ¶ 502.Google Scholar

⁵⁴ Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Case No. IT-04-84-A, Appeals Chamber Judgment of July 19, 2010, ¶ 377. This judgment ordered partial re-trial of Mr. Haradinaj and his renewed detention.Google Scholar

⁵⁵ Prosecutor v. Fatmir Limaj, Isak Musliu & Haradin Bala, Case No. IT-03-66, Appeals Chamber Judgment of 27 September 2007.Google Scholar

⁵⁶ There is information, according to which Thaçi has close relations with the Kosovo mafia and military groups. These assertions are based on an article published in Die Welt Online, according to which there exists a 67-page long, hard-hitting analysis by the German Intelligence Service (Bundesnachrichtendienst, BND) about organized crime in Kosovo, as well as confidential report contracted by the German military, the Bundeswehr. In contrast to the CIA and MI6, both German intelligence reports accuse Thaci as well as former Prime Minister Ramush Haradinaj and Xhavit Haliti of the parliamentary leadership of far-reaching involvement in organized crime. The BND writes: “The key players (including Haliti, Haradinaj, and Thaçi) are intimately involved in inter-linkages between politics, business, and organized crime structures in Kosovo.” At the end of the 1990s, the report accuses Thaçi of leading a “criminal network operating throughout Kosovo.” At that time he was a co-founder of the Kosovo Liberation Army, and led the Albanian delegation at the 1999 conference at Rambouillet that preceded the Kosovo war. The BND report also accuses Thaçi of contacts to the Czech and Albanian mafias. In addition, it accuses him, together with Haliti, of ordering killings through the professional hit man ‘Afrimi', who is allegedly responsible for at least 11 contract murders. At the same time, this report explains how Thaçi has been protected against any indictments by the United States. See German Spy Affair Might Have Been Revenge, Die Welt Online, November 30, 2008, available at http://www.welt.de/english-news/article2806537/German-spy-affair-might-have-been-revenge.html (last visited July 30, 2010). Similar information is published in the article Das Kosovo auf dem Weg in die Unabhängigkeit: Rechtsstaat – Lieber nicht, 43 Die Weltwoche (2005), available at http://www.weltwoche.ch/ausgaben/2005-43/artikel-2005-43-rechtsstaat-lieber-nicht.html (last visited July 30, 2010). Also other writers qualify Hashim Thaçi as a “guerrilla leader”; see Deon Geldenhuys, Contested States in World Politics 199 (2009), who cited from The Economist. Google Scholar

⁵⁷ This surprising observation was already pointed out by Claude Cahn in his contribution to the previous session of this symposium held by the German Law Journal. See Claude Cahn, The Birth of a Nation: Kosovo and the Protection of Pariah Minorities, 8 Ger. L.J. 81, 83–84 (2007).Google Scholar

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