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VICTIM BASED SOVEREIGNTY; A COMPARATIVE CASE STUDY
by
Geneva Garland
A THESIS
Submitted to The New School in partial fulfillment of the requirements for the degree of
MASTER OF ARTS in International Affairs
The Graduate Program in International Affairs
December, 2015
First Reader: _____________________________________ Date Approved: _________
(print name) _____________________________________
Second Reader: ___________________________________ Date Approved: _________
(print name) _____________________________________
1
Table of Contents
Abstract……………………………………………………………………………………………2
Introduction……………………………………………………………………………………..3-8
Background…………………………………………………………………………………….8-32
Methodology………………………………………………………………………………….32-40
Analysis………………………………………………………………………………………40-54
Conclusion……………………………………………………………………………………54-56
Bibliography………………………………………………………………………………….58-61
2
Abstract
Sovereignty is a protean word, with multiple ascriptions changing across time. It is
generically understood in terms of the monopoly of violence over a defined territory. That
authority is generality referred to as the “state”. Yet what makes a state a state? I explore this
question by means of an alternative concept I propose: “victim based sovereignty”—whereby
state sovereignty and political authority coalesce around a national experience of victimization.
I argue that Israel, through codification of the Holocaust as a means to access statehood
in the 1940’s, has the monopoly on “victim based sovereignty”.
This, I surmise, explains both the political dynamics of Israel’s sovereignty- and of other
differently qualified “states” that claim the same type of Identity status- as well as Israel’s recent
shift in foreign policy away from the US and toward Russia.
Because Israel’s victimization is the basis of its sovereignty, it must constantly reenact
this victimization in order to express and reinforce its own sovereignty, and this is the primary
impetus that drives Israel’s foreign policy decisions.
To explain this concept I analyze the foundational laws and documents of Israel’s claim
to statehood. Then I use cognitive legal studies as a methodology to explain where the concept of
victimization becomes tangible law. I link this to the relationship between Serbia and Kosovo,
which then I link to Russia and the US to explain a new cold war dynamic in which Israel is on
the other side of the old Iron Curtain.
3
Introduction
US media claims there has been a shift in Israeli diplomacy in the past year, noting that
the relationship with the United States is no longer tractable1—a contention shared by a
substantial part of US public opinion.2 I claim that this shift actually has its origin in a prior
historical moment namely, the U.S. and NATO intervention in Serbia and Kosovo in 1999.
This intervention created the conditions that facilitated Kosovo’s claim to statehood in
2008. In my study I claim that the time between 1999 and 2008 can be seen as the progressive
articulation of a claim to statehood through a “narrative of victimization” exemplified by the
leadership in Kosovo. I claim that this narrative finds its source in the one that allowed for the
Israeli State to emerge in 1948. And it plays a crucial role in explaining Israel’s diplomatic shift
of allegiances from the U.S. to Russia in recent times.
In March of 2014, the UN General Assembly voted on a resolution that condemned
Russia’s military actions in Ukraine and confirmed the territorial integrity of the Ukrainian
state.3 This vote was strongly supported by the United States. It was not supported by Israel
who abstained. This abstention was noted with surprise and indignation by the White House and
State Department4 as Israel has been considered to be a great ally with the United States. Israel
receives more American foreign aid than any other state in the world.5
1 Ravid,Barak.4 April,2015. U.S. Officials Angry: Israel doesn’t back stance on Russia. Haaretz
Bremmer, Ian. 2 April 2014. The U.S. and Israel Are Divided — and That Won’t Change. Time.
Goldberg, Jeffrey. 28 Oct. 2014. The Crisis in U.S.-Israel Relations Is Officially Here. The Atlantic
2Edwards-Levy, Ariel. 3 April 2015. Half Of Americans Think The Nation's Relationship With Israel Has Weakened.
Huffington Post.
3 UN General Assembly, March.27, 2014 Resolution 11493,“Territorial Integrity of Ukraine”
4 Ravid,ibid.
5 Journalist’s Resource.2015.U.S. Foreign Aid to Israel: 2014 Congressional Report.
4
However, as this study explains, Israel’s siding with Russia on the issue of Ukraine’s
territorial integrity can be understood when considering the ideas Israel uses to justify its
existence as a state in the first place. It is those ideas and legal precedents that Israel is trying to
maintain when making a decision that may seem at first glance to defy other logical
considerations such as supporting Russia in Ukraine.
Israel has departed from the U.S. and sided with Russia on the very same issue of
territorial integrity in the past- in Kosovo of 1999. Israel’s statements condemning NATO’s use
of force against Russia’s ally Serbia,6 and statements in support of its president Slobodan
Milosevic7 were also met with surprise and anger from the White House at that time.8 The
Israeli Minister of Foreign Affairs, Ariel Sharron was criticized for his statements as well as his
3 visits to Russia that same month, which were perceived as a betrayal of the alliance Israel had
with the United States by his own Likud party as well as by the opposition.9
In 2015, political analysts have commented not only on the departure of Israeli policy
from the U.S., but also on Israel’s growing alliance with Russia,10 despite the fact that Russia has
supplied weapons to Iran11 and has pushed for the lifting of an arms embargo against the wishes
of the United States in a UN Nuclear Power agreement12 (reached this July 14th 2015).
6
Rodan, Steve 1999. Israel Government Refrains from Supporting NATO Attacks. The World Tribune.
7 Fisk,Robert. 2014. Ariel Sharon 2014.The Independent.
8 Wilkinson,Tracy. 9 Apr. 1999.Israeli’s Kosovo Remarks Raise Ire. Los Angeles Times. Web. 28 July 2014..
9 Fisk,ibid.
10 Ahren, Raphael. Despite S-300s to Iran, Israel to stay close to Russia. The Times of Isreal 21 April,2015
11 AP. 14 April 2015.Iran says Russian Missiles Could Arrive This Year.
12 MFA of Russia.July 7,2015. Foreign Minister Sergey Lavrov’s Remarks and Answers to Media Questions at a
News Conference Following the Ministerial Round of Talks on Iran's Nuclear Programme, Vienna. Web. 15 July
2015..
5
Israel has been squarely against any agreement with Iran on the condition that Iran
recognizes Israel’s right to exist.13 With this magnitude of condemnation of Russia’s actions
concerning Iran, U.S. officials have understandably reacted to Israel’s support of Russia in terms
of Ukraine with surprise.14
In this study, I claim that Israel’s foreign policy is predictable if their priorities are
understood. Those priorities are focused on the maintenance of their own principals of territorial
integrity and what they feel gives them the right to use violence to enforce that territorial
integrity. For Israel, their experience of victimization from genocide justifies their use of
violence in order to maintain the control of the West Bank and Gaza. Israel expresses its support
of Russia and Serbia in their use of violence as being justified because they are protecting
themselves from a victimization that Israel perceives as similar to its own.15
Israel has a certain moral authority in the UN on the subject of genocide as the standard
bearer of the legal definition of genocide derived from the holocaust, and it is the first state in the
UN era to emerge as a direct result of that experience.16 When Kosovo declared its
independence in 2008 it made its argument for the ICJ using the same logic as Israel had done in
the General Assembly in 1948. The logic was that the only measure that was sufficient to protect
victims from genocide, was the creation of a new state. However, despite many attempts at
13 Reuters. 6 April,2015. Obama: Nuclear Deal Does Not Depend On Iran Recognizing Israel.
14 Ravid,op cit.
15 Many examples of this will be discussed in the evidence presented in later sections of this study
16 See:“The Declaration of the State of Israel”1948
“the Declaration of the state of Kosovo” 2008
The evidence of this will bediscussed extensively in later sections
6
establishing a relationship, Israel has not, and to this day will not recognize Kosovo’s right to
exist.17
The question of who has the right to use violence to further a claim of territorial integrity
(e.g. R2P) is not a fully agreed upon one in the United Nations. Many factors are considered by
members of the General Assembly and Security Council when debating a states use of violence;
such as the general history of the conflict, the role of the territory in the national and spiritual
character of the actors, the conditions of human migration that effected the ethnic populations of
the territory in question and the collateral damage of the use of violence to enforce that territorial
integrity, among other things.
In the case of Ukraine, Israel relates to Russia. It is Russia that has territorial control
over Ukraine, and it is Russia that is allowed to use violence to enforce its claim. In the case of
Kosovo, in the view of Israel, it was Russia’s ally Serbia who had the right to territorial control
over Kosovo and Serbia who had the right to use violence to maintain that territory. In the case
of Palestine, in the eyes of Israel, it is Israel that holds the right to express territorial control over
the West Bank and Gaza and Israel who has the right to use violence to enforce that claim.
Israel is the standard bearer of this kind of victimization as its statehood is founded on the
necessity for protection from it. It is this from same basis of protection against victimization that
Kosovo draws its claim. Kosovo appeals to Israel to recognize its need for independence as a
necessary result from its victimization by the Serbs in the 1990’s.
17 Erebara, Gjergj 29 June 2011 “Israel Dismisses Talk of RecognizingKosovo"Balkan Insight.Web. Accesed 7 May
2015.
7
Paradoxically, when Israel supported Russia and Serbia they justified their use of
violence in Kosovo as an act of protection from victimization that was similar in ways to their
own, in the way that they classify their victimization as perpetual, and rooted in an ancient clash
of pre-modern civilizations.18
Israel is redefining who it thinks should be a part of two groups, those who can use force
and those who cannot. And while it publicly condemns Russia for its support of Iran, Russia has
positioned and proposed itself as a mediator for other conflicts in the Middle East that Israel
finds useful. Israel began to see this utility in 1999, when Ariel Sharon re-established relations
with Russia for the first time since 1957—based on the consideration that Russia could be a
mediating partner.19
The evidence in this study ultimately questions how successful these potential mediations
can be when they are led by actors that quantify this interaction as a zero sum game where victim
and perpetrator are unequivocally defined. I claim that this tendency towards reading politics
through a binary lens is innate in the constitution of the state of Israel and can be seen
increasingly in the case of Kosovo.
The shared intractable dynamic in the Israeli/Palestinian and the Serbian/Kosovo peace
negotiations is exposed in Kosovo’s unsuccessful appeal to achieve Israel’s recognition of its
independence. Even while using the same legal principles Israel used in its 1948 Declaration of
Independence as points of appeal,20 Kosovo’s victimization experience falls short of the
18 The evidence of this will bediscussed extensively in later sections
19 The Ministry of Foreign Affairs of Israel 159.Cabinetcommunique on Foreign Minister Sharon’s visitto Russia -
11 April 1999.As a matter of fact, Israel has proposed itself as a possiblemediator between Russia and Ukraine.
See Lazaroff, Tovah. 27,Jan. Liberman Ready to Mediate between Russia and Ukraine 2015 Reuters
20 Tanjug, Interfax.8 May 2015. Serbia Won’t Recognize Kosovo, President Reiterates. B92.net
8
qualifications Israel sees in Russia and Serbia as being perpetual and being the wrong side of the
clash of civilizations.21
I claim that since Israel’s victimization is the basis of their sovereignty they must
constantly reenact this victimization in order to express and reinforce its own sovereignty and
this is the primary impetus that drives Israel’s foreign policy decisions.
Background
Serbian troops had been imposing military law in the majority ethnic Albanian province of
Kosovo for almost a decade in 1999. Evidence of war crimes committed by both Serbs and
Albanians were surfacing to the international community, though it became clear that there was a
systematic ethnic cleansing of Albanians at the hands of Serbian troops in process.22 The US
having led the negotiations with Serbian President Slobodan Milosevic in Dayton Ohio years
earlier over Bosnia and Croatia, once again was at the helm of the cease fire talks with him in
Rambouillet France over the fate of Kosovo.
It was also in 1999 that Ariel Sharon, Minister of Foreign Affairs for Israel, traveled to the
USSR. This was the first visit from an Israeli diplomat to the Soviet Union since Israel broke off
relations in 1957 following the war of the Sinai Desert.
21 Van Crevland,Martin. 2013. Kenote Speach “The Balkans and the Middle East are they mirroring Each Other?”
Peja/Pec conference Kosovo 2013.
22 Human Rights Watch.26 October 2001. Under Orders: War Crimes in Kosovo: In-Depth Report Documents
Milosevic Crimes.
9
Sharon’s move caused friction with the United States as well as within domestic Israeli politics.23
The United States is considered Israel’s primary political and military ally, yet their relationship
was not always so close. It was in fact only after the war of the Sinai Desert and the consequent
severing of diplomatic ties with the Soviet Union that Israel became dependent on the United
States. On October 29, 1956 Israel attacked Egypt in collaboration with France and Britain,
invading the Sinai Desert. The United States strongly opposed Israel’s action as well as the
British and French backing thereof. The failed invasion had severely weakened the British and
French militaries, and Israel could no longer rely on them. This prompted Israel to turn to the
United States. The Soviet Union had condemned the violence on the floor of the UN along with
the United States, however it soon became known that the Soviet Union was arming Egyptian
President Gamal Nasser.24 As a result, Israel officially severed relations with Moscow in 1957,
until Arial Sharon broke that silence in 1999.25
In April of 1999, Benjamin Netanyahu was finishing out his first term as prime minister of Israel,
having led a majority Likud party government since 1996. He defended Sharon’s meeting with
Russia against criticism from the Labor party:
“These opposition attacks should be viewed with severity, since this is an important visit
- which comes at the invitation of the Russian Foreign Minister - during which the
Foreign Minister will raise, as the first matter on the agenda, the Russian commitment
for joint action to prevent the transfer of non-conventional technologies to Iran. Israel is
coordinating with the United States concerning the policy to combine incentives for and
pressure on Russia toward preventing this transfer.”
Sharon felt at the time that the best way to deal with the USSR arming Iran, was to negotiate
with Russia to modify the terms of their deals to bar weapons of mass destruction. This required
23 The Ministry of Foreign Affairs of Israel 159.Cabinetcommunique on Foreign Minister Sharon’s visitto Russia -
11 April 1999
24 BBC. 21 July 2006. Suez Crisis: Key Players. .
25 The Ministry of Foreign Affairs of Israel 159
10
creating a new diplomatic relationship—which since 1999 has gravitated mostly around the
subject of arms trading, with the Soviet Union monitoring position the flow of weapons in the
Middle East and Asia.
I contend that there is an even more fundamental issue which Israel and Russia share; that is the
philosophy of their sovereignty and that events in Kosovo of 1999 reveal to them be more
ideologically aligned in this regard then Israel’s bond with the United States.
In July of 1999, peace talks with Serbian President Milosevic and the United States over Kosovo
failed. Milosevic refused to retreat his troops behind a line determined by the Americans, which
he had agreed to in March at Rambouillet. As a result NATO immediately used military force to
intervene on behalf of the Kosovars. Without permission from the Security Council as it was
required to do under charter law26, NATO bombed Belgrade and Pristina, and ousted Serbian
rule from Kosovo.
Israeli Foreign Minister Sharon issued a statement reacting to NATO’s decision that not only
poised Israel in opposition to the United States, he articulated his allegiance with Serbia and
Russia on the legal issue of NATO’s use of force without the permission of the Security Council.
Israel called NATO’s use of force a “violation of sovereignty” and raised concerns for the
implications it could have on Israel’s own contested territory.
"It's wrong for Israel to provide legitimacy to this forceful sort of intervention which the
NATO countries are deploying in an attempt to impose a solution on regional disputes,
The moment Israel expresses support for the sort of model of action we're seeing in
Kosovo, it's likely to be the next victim. Imagine that one day Arabs in Galilee demand
that the region in which they live be recognized as an autonomous area, connected to the
Palestinian Authority..."27
26 Charter of the United Nations Articles 2 (4) and 24
27Fisk,Robert. 2014 Ariel Sharon The Independent.
11
In March of 1999 Russia sponsored a resolution in the Security Council that demanded NATO
cease all of its military actions in Yugoslavia.
“Calling for the immediate cessation of the use of force against the Federal Republic of
Yugoslavia and the urgent resumption of negotiations… Determining that the use of force
by NATO against the Federal Republic of Yugoslavia constitutes a threat to international
peace and security."28
Russia revealed in its statements that it was also afraid of the legal precedent NATO’s actions
could imply for what is saw and sees as its own contested territories such as Chechnya and
Ukraine; just as Israel feared for the West Bank and Gaza. If NATO could be permitted by the
UN to intervene in support of a territory claiming to be autonomous in Europe, what would stop
NATO from militarily intervening on behalf of Russia’s territories that claimed autonomy?
The Security Council however rejected Russia resolution that condemned NATO on March 26th
1999, in a 3 to 12 vote (Russia, China and Namibia in support). There were no further measures
taken by the UN to rein in NATO’s troops on the ground. America’s intervention was allowed to
proceed with passive permission from the UN. This moment of legal ambiguity would be
challenged again by Serbia when Kosovo declared its independence.
After almost ten years of supervised autonomy under NATO institutions, and 4 cease fire
agreements with Serbia, Kosovo declared Independence in February of 2008. Serbian Prime
Minister Vojislav Kostunica issued a statement that called Kosovo a “False State” and the
declaration “a legal violation of the sovereignty of Serbia.”29 Russia supported Serbia’s legal
objections in an official statement from their Ministry of Foreign Affairs:
“On February 17, Kosovo’s Provisional institutions of Self-Government declared a
unilateral proclamation of independence of the province, thus violating the ‘Sovereignty
28 Security Council.1999. Press ReleaseSC/6659 3989th Meeting (AM) 26 March 1999
29 Reuters 17 Feb. 2008 Serbia Condemns Breakaway Kosovo as ‘False State. Print.
12
of the Republic of Serbia, the Charter of the United Nations, UNSCR 1244, the Principals
of the Helsinki Final Act, Kosovo’s Constitutional Framework and the high-level Contact
Group accords. Russia fully supports the reaction of the Serbian Leadership to the events
in Kosovo and its demands to restore the territorial integrity of the country.” – Statement
by Russia’s Ministry of Foreign Affairs on Kosovo 2/17/08 216-17-02-2008
In this statement, Russia refers to several points it considers at legal contention with Kosovo’s
declaration. The first two points; the Sovereignty of the Republic of Serbia, and the Charter of
the United Nations, are in reference to the moment of legal ambiguity when NATO initiated the
use of force without the permission or condemnation of the Security Council. The next four
points; UNSCR 1244, the Principals of the Helsinki Final Act, Kosovo’s Constitutional
Framework and the high-level Contact Group accords, refer to the violations Serbia felt Kosovo
made to the series of agreements they had made since the intervention in 1999. These 4
agreements were negotiated through third parties for the expressed purpose to find a “final status
solution for Kosovo”. Serbia contended that an independent Kosovo was explicitly prohibited by
the conditions of these cease fire agreements.30 Kosovo contended that the agreements did not
prohibit them from declaring independence31. Kosovo also argued that a new state was a
necessitated by their experience of genocide; rule from Belgrade would no longer be trusted or
accepted by the people of Kosovo.
Serbia called for an advisory opinion of the International Court of Justice (ICJ) to decide whether
Kosovo was in violation of the agreements it had made with Serbia. The court ultimately ruled in
favor of Kosovo. Serbia rejected the opinion, and does not recognize Kosovo’s autonomy to this
day.32
30 International Courtof JusticeAdvisory Opinion of 22 July 2010: ‘Accordancewith International Lawof the
Unilateral Declaration of Independence in Respect to Kosovo’.
31 Ibid.
32 Tanjug, Interfax.8 May 2015. Serbia Won’t Recognize Kosovo, President Reiterates.B92.net.
13
NATO’s use of force without the Security Council’s permission was never reviewed by the ICJ
or any other UN entity. The ICJ has jurisdiction on issues between states, and cannot put a non-
state actor, such as NATO (a multistate organization) on trial. At the same time the ICJ is also
unable to try individuals for war crimes, only states and their representatives. There was a
problem with establishing jurisdiction over Milosevic and others for their crimes in the former
Yugoslavia. Yugoslavia was a state in crisis during the conflict, comprised of only a loose
federation between Serbia and Montenegro, and Milosevic was not considered a “sufficient”33
head of state. Therefore the ICJ had no jurisdiction over Slobodan Milosevic.
The International Criminal Tribunal for the Former Yugoslavia (ICTFY) was created by the
Security Council in 1993 in order to try Milosevic and other individuals of serious violations of
humanitarian law in the former Yugoslav territory since the war began in Bosnia and Croatia in
1991. This court eventually found Milosevic guilty of “crimes of genocide”, but not the crime of
“genocide” as that is a crime that is defined by the genocide convention as one that is perpetrated
only by a state. The tribunal was created out of a necessity to give the UN jurisdiction over the
crimes of individuals rather than states. Therefore the focus was not on a state perpetrating
genocide, as much as on an individual committing “crimes of genocide.” The ICTFY eventually
became the basis for the creation of the International Criminal Court (ICC) in 2003. The ICC is
the official permanent judicial branch that expresses jurisdiction over individuals who commit
war crimes, while the ICJ remains the judicial branch that has jurisdiction over state claims.
Legal institutions such as the ICC are the product of international law, because international law
is not static, it is constantly amended to accommodate new issues. It is shaped by the thoughts
and the actions of relevant actors that affirm or deny a consensus over a precedent. Actions that
33 Term addressed in the methodology
14
are deemed illegal at one time can sometimes go through a process of reconceptualization. For
example NATO’s use of force in the former Yugoslavia was technically illegal because it did not
have permission from the Security Council. However, there were no successful institutional
actions penalizing NATO, therefore the intervention gained acceptance through the lack of will
and ability to correct it. Later in 2003 NATO went into Iraq again without the Security Council’s
permission, citing the intervention in Kosovo as an example of similar permissible use of force.
Again, there were no actions taken by the UN to stop the troops on the ground in Iraq, despite the
lack of Security Council approval or permission. The law is only a reflection of consensus,
subject to time and political power.
The US Secretary of State in 1999, Madeline Albright, was an advocate for the intervention in
Kosovo despite the lack of permission from the Security Council. She felt that the moral
imperative to intervene on behalf of the Albanians in Kosovo superseded the legal status quo.
Interviewed about Kosovo in 2013, she admitted “What we did there was not legal, but it was
right.”34 The Security Council did not officially condemn NATO’s actions (aside from Russia
China and Namibia) and the de facto majority consensus at the time was to allow the military
action in spite of this technicality because of the overwhelming evidence of mass executions of
Albanians.35 This is how “legality” can be understood in relative terms. Law is an active process
of “human meaning making”36 that is relative to the interpretation of political actors in power.
If a group claims itself to be a state, that is one, and only one element of actually making that
declaration meaningful. The declaration of a state is only viable if other states with the
34Higgins,Sean. 23 Sept. 2013. Madeline Albright on Kosovo: 'What we did there was not legal, but it was right'
Washington Examiner.
35 The numbers of Albanianswho were mass executed is still growingas graveyards arestill beinguncovered years
later see:
36 Johnson, Mark. 2002. Law Incarnate Brooklyn Law Review Vol. 67 Number 4. Pg 951
15
established political status of a state also recognize it. The ability to act like a state is even more
important criteria to truly being a state in international law. Kosovo supports this declaration in
part by arguing that it has been functioning as a “de facto state” both during and after its Serbian
occupation.
The reality of Serbian non-recognition is that it prohibits some of Kosovo’s vital functions as a
state. For example, Serbia adjoins Kosovo’s northern border. This inhibits the freedom of
movement of Kosovars because Serbia will not allow traffic originating in Kosovo over its air
space. This inflates the cost of airfare beyond most of the populations grasp. The cost of
importing and exporting goods is therefore also inflated which inhibits trade. Ground traffic is
subject to arbitrary closure and occasional ethnic violence.37 However, Kosovo has the ability to
enter into diplomatic relations with any state that recognizes its 2008 declaration. Therefore, the
more countries that recognize Kosovo, the greater Kosovo’s “capacity to enter into relations with
other states”. Currently, 111 states recognize Kosovo, including 23 members of the European
Union (EU).38
Some states are higher on the list of priorities for Kosovo’s Ministry of Foreign Affairs to reach
out to for recognition than others are. European states that have political influence in the EU are
identified as high priorities39 because Kosovo’s entrance into the EU would give Kosovo security
in the region. For example, it is a high priority for Kosovo to get the state recognition of Spain
for two reasons. Spain has an influential position in the EU and would encourage other EU states
to recognize Kosovo by its example. What is more important about Spain to Kosovo is the fact
that Spain has the same reservations on the legal principals of Kosovo’s cessation from Serbia as
37 BBC News. 28 July 2010. Kosovo Serbia Border Post Set Alight. Web. 18 Aug. 2015.
38 Kosovothanksyou.com
39 Ministry of Foreign Affairs of Kosovo. 2010. Kosovo Calling
16
Russia and Israel have. In the same way Israel fears for the West Bank and Gaza, and Russia
fears for Chechnya and Ukraine, Spain fears if the precedent of Kosovo were universally applied
it would allow their ethnic Basque and Catalan regions to declare independence. Recognition
from Spain is seen by Kosovo as a way to influence other non-recognizing states with the same
fears. However Israel is the standard bearer for the type of victimization that resulted in the new
state that Kosovo is trying to build. Achieving the recognition of Israel would mean recognition
of the narrative of their national identity.
I worked as a consultant in interfaith relations the Ministry of Foreign Affairs of the Republic of
Kosovo (MFARK) under Deputy Foreign Minister Petrit Selimi in 2012-2013; our task was to
ease tension between the majority Muslim-Albanian and the minority Serbian-Orthodox
communities in light of the transition from international military control to the national police.
In my capacity as a consultant through the British Council I helped orchestrate interfaith
meetings between the local Muslim community leaders and the leaders of the Serbian Orthodox
Church. 2012 was an important year for interfaith relations because NATO military forces had
been protecting zones belonging to the Serbian Orthodox Church (SOC) that was surrounded by
the Muslim community. The MFARK was in charge of overseeing the transition of security to
local ethnic Albanian and Serbian police. It was a delicate change that was full of anxiety for
both the Serb and Albanian communities. The MFARK held an international interfaith
conference in May 2013 in one of the towns with the most important military zones around the
Patriarchate monastery called “Peja” (Albanian) “Pec” (Serbian). This was the first conference
organized by the state of Kosovo that the SOC participated in. Security forces were successfully
transferred without incident, and Kosovo declared an end to supervised independence.40 In
40 BBC News Kosovo declared 'fully independent' 10 September 2012
17
regard to domestic goals, the conference in Peja/Pec was seen as a great success, the SOC
attended and acknowledged the President and Prime Minister in their proper title such for the
first time in a public forum. However, the international goals of the MFARK were not fully
realized. One guest that was invited to the conference that the Ministry had high hopes for
attending did not show up, and that was the Israeli ambassador to Serbia, Yossi Levi. Much of
the planning of this conference and other events in the Ministries interfaith initiative was tailored
towards courting the favor of the state of Israel. Specific Holocaust memorial events were
planned for the purpose of the ambassadors attendance41 and—in an attempt to magnify Jewish-
Albanian relations—I was sent by the deputy minister to interview the last five Jewish-Kosovar
families, as well as the Albanian families that had saved Jews during the Holocaust, with the
objective of publishing a pamphlet for an Israeli audience.42
The focus on establishing diplomatic relations with Israel was paramount to Kosovo’s Ministry
of Foreign Affairs. Getting Israeli recognition was not just a chance to enter into relations with
another state; it was seen as a symbolic affirmation of Kosovo’s very identity as a state which
resulted from the experience of genocide. Israel is the standard bearer for a people who achieved
political rights and protections after experiencing genocide. They achieved their political
protections through the founding of a new state and therefore their recognition has a sort of
political currency attached to it. Who would challenge Kosovo’s genocide narrative if it was
legitimized by the people who survived what we base our definition of genocide in the law, the
Holocaust.
41 Interfaith Kosovo. 2013.Kosovo Jewish Week 2013.
42 Garland,Geneva. Feb 1 2012. The Jewish Community of Kosovo. Interfaith Kosovo.
18
Genocide is a term that holds political power. It was invoked by NATO in order to legitimize the
urgency for the intervention, and thereby justify the lack of consultation and permission from the
Security Council.43 As opposed to “ethnic cleansing” or “war crimes” our understanding of
“genocide” has particular implications that have been influenced by one example of genocide,
the Holocaust. According to the Convention against Genocide of 1948, which was written as a
direct response to the Holocaust, genocide is defined in article 2 as actions committed with “the
intent to destroy, in whole or in part a national ethnical, racial, or religious group.” The burden of
proof to establish ‘intent’ is informed by the experience of the Holocaust. The evidence in the
Holocaust was blatant. State drawn plans of gas chambers and camps were uncovered in Nazi
offices. The Nazi party was the clear elected state actor. This established clear intent of a state
actor to destroy a group of people, at an extraordinary level of certainty.
Other examples of genocides have not had such clear evidence of intent. This burden of proof
has demonstrated to be difficult to near impossible to establish in cases such as Rwanda and
Sudan for example. In Rwanda in 1994, the violence was instigated largely by the radio
broadcasting system that called for the Hutus to pick up machetes and “kill the cockroaches”;
referring to the Tutsis, which they did with shocking and gruesome efficacy. Though it is
arguable the broadcasting system was acting on influence from authority, this did not satisfy the
burden of proof for the international community to legally recognize the genocide. In the
ongoing case of Sudan, horsemen tribes known as the Janjaweed rode down and killed Christian
43 CNN. 29 March 1999. NATO, British leaders allege 'genocide' in Kosovo.
19
families in South Sudan. It has been reported44 that the Janjaweed were paid to do this by the
government however, clear evidence has been difficult to gather.45
There is a growing movement to establish a normative in the UN called ‘Responsibility to
Protect’ (R2P) that would require states to intervene in the event that genocide is legally
recognized. UN Secretary General Kofi Annan proposed in 2000 humanitarian intervention,
though flawed, as the only option:
“If humanitarian intervention is indeed an unacceptable assault on sovereignty, how
should we respond to a Rwanda, to a Srebrenica – to gross systematic violations of
human rights that offend every precept of our common humanity?”
The doctrine of R2P considers state actors to have forfeited their right to sovereignty if they are
committing genocide. This doctrine has been officially confirmed by the General Assembly as a
principal to work towards during a general assembly world summit in 2005, and the Security
Council passed resolution 1674 in 2006 that affirmed the doctrine as articulated by the general
assembly in the 2005 summit. It is not however a universal legal standard yet.
The Convention on the Prevention of Genocide was written on the basis of the Holocaust
experience, and while the growing acceptance of R2P is advancing the political will to intervene
in the event of genocide, the definition of genocide in the law has not evolved- it is still based on
the understanding of a single genocide, the Holocaust. The Holocaust resulted in the creation of
the state of Israel, however it is not the only moment of victimization in the identity of the Israeli
nation. The nation is justified not just to protect the Jews from the victimization of the Holocaust,
44 Human Rights Watch “FailingDarfur; Entrenching Impunity Government Responsibility for International Crimes
in Darfur IV. Ground Forces of Ethnic Cleansing”6:IV.
45 For more on the subjectof the holocaustas a legal basisfor the understandingof genocide see: Rosenberg, Sheri
P. and Everita Silina.2013. Genocide By Attrition: Silent and Efficient Genocide Matters
: ongoing issues and emerging perspectives / Edited by Joyce Apsel and Ernesto Verdeja. London ; New York :
Routledge.
20
but from the perpetual victimization of the Jewish people throughout time since their exile from
the land of Babylon. This is what distinguishes Israel from Kosovo. Though they both claim
sovereignty via their victimization experiences, Kosovo’s victimization moment is one point in
time, for Israel the victimization is perpetual.
The victimization experience is the basis of what defines the population, territory and
government of Kosovo. When, where and to whom the victimization happens in the national
narrative defines the when where and whom which comprise the Nation. For an example in
contrast, the United States’ narrative is based on a “discovery experience”46 that defines the
territory, population and government of the state, a completely different sovereignty contract.47
Steven Newcomb’s work in cognitive legal theory explores the understanding of the ‘discovery
experience’ as applied in American property law. His research is the basis of my methodological
approach to the understanding of sovereignty in this study. Through my research using
Newcomb’s method in cognitive legal theory, I will demonstrate that in the way Newcomb
proposes America is ‘discovery based’ sovereignty, Israel and Kosovo are ‘victim based
sovereignties’. However, while Kosovo is also a victim based sovereignty it is not equal to that
of the Israeli victim experience in terms of duration, therefore, the precedent of Kosovo’s
independence due to one incident of victimization in history threatens Israel’s sovereignty, over
territory claimed by Palestinians who claim to be victimized. If the standards of recognition were
met by one moment in time of victimization, then Israel’s violence against the Palestinians
would give them legal precedent to secede from under their military occupation.
46 Newcomb, Steven T. 2008. Pagansin the Promised Land: Decoding the Doctrine of Christian Discovery. Golden,
Colo: FulcrumPub. Print.
47 This will beexplained in the methodology section of this paper in the work of Steven Newcomb.
21
The state of Kosovo was a result of military force, so was the state of Israel. In fact state-making
is intimately tied to violence. A state’s status is only as strong as the international community’s
acceptance of the violence that created the conditions for it. This is the social contract that is
created between states. In Israel conflict broke out when the British Mandate was dissolved and
the Security Council passed resolution 149 in December 1948, which demanded the newly
established Israeli government to allow all refugees the right to return to their property, or
compensation for their lost property. In 1967 after the six-day war, the Security Council passed
resolution 242 that reconfirms 149, and demands the same right of return for the refugees of that
war. However, Israel refused, and refuses to this day, to facilitate the demands of resolutions 149
and 242, and the UN has neither the capacity nor the consensus amassed to take any tangible
actions against that.
On November 7, 1956 when Israel invaded the Egyptian Desert, Prime Minister Ben-Gurion
declared in the Knesset that, since the Sinai was historically a part of Israel, Israel could not
properly be said to have invaded Egypt and that the 1949 armistice agreements and the
boundaries they defined were "dead and buried and will never be resurrected."48 The Israel that
Ben-Gurion was referring to was the one of pre-modern times, the one he saw himself building
in the modern project. The importance of this part of national identity is not just qualitative, but
quantitative as it is a projection that redefines both the territory of the state and the population.
Ben-Gurion was establishing on the ground the identity of Israel that had been born out of the
ideas of the Zionist movement in Europe in the nineteenth century. Zionism, most basically
defined, is the idea of creating a new state for the Jewish people. Israel refers to Theodor Herzl
as the father of the Zionist movement. He created the Jewish National Fund, which has an
48 Ball,George W. 1980. The Coming Crisis in Israeli-American Relations. Foreign Affairs. Web. 13 July 2015.
22
official covenant with the Israeli government, and his book “the Jewish State” is the manifesto of
the principles in the Basic Laws of the state, which function as the constitution of Israel as there
is none to date.49 Herzl refers the Jewish people as “a nation bound together by a common
threat”.50 It is this common threat that identifies the population of the state. The need for a
physical space for that population to be protected from the perpetual threat, Herzl said, was the
next step.
“The people are the subjective, the land the objective foundation of the state, and the
subjective basis is the more important of the two”.51
Herzl wrote that the only solution to this problem was not an avocation of rights in the national
policies of European states. He wrote that the only protection that would be able to combat the
perpetual victimization of the Jews through history could be accomplished by the institution of a
state governed by that group. For that state to be established, a physical place needed to be found
to facilitate it. Herzl wrote that the identity of the victimized people as the Jewish people was the
determining factor of where that land should be found- the site of the ancient nation of Israel,
what was then known as Palestine.
The Arabs that lived in Palestine became aware of Zionism through the early settlements of
Jewish kibitzes in the nineteenth century. The national aspirations of the movement were not
fully understood en mass by the Arabs in Palestine until the fall of the Ottoman Empire. The
Hashemites of Saudi Arabia (now the ruling family in Jordan) had collaborated with the British
to throw off Ottoman rule from the region, in exchange from the British for the guarantee of a
Pan-Arab state. The Ottomans were seen as foreign rulers in the Levantine region, and the Arabs
were fighting for self-determination. The Arab and British coalition destroyed the axis supply
49 “Basic Laws – Introduction”2003 http://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm
50 Herzl, Theodor. The Jewish State. First.United States of America: White Dog Publishing,2010.Print.
51 Ibid.
23
chain by sabotaging their railroad system playing a significant part in winning the First World
War.
After the war was won by the allies, in 1917 the British entered into the White Paper agreement
with the Zionist congress which promised much of the region, including what was known as
Palestine, to the creation of a future Jewish state. The League of Arab States led by the
Hashemites made their opposition to Jewish national aspirations known.52 Palestine, for the time
being became a British mandate under the League of Nations as did Jordan, given to the
Hashemites as an appeasement,53 and the entire Middle East to the mandate system of the British
and French. During the mandate period, Jewish immigration to Israel increased through British
and French cooperation, and by 1948 the demographics had changed in Palestine with a sizable
Jewish population, which was however still a minority owning about 6 percent of the land.54 The
idea of a separate Arab and Jewish state was not accepted by the League of Arab States, or any
Palestinian representation until the 1993 Oslo Accords—becoming known popularly as the “two
state solution”. The two state solution was also not accepted by the first president of Israel
David Ben-Gurion.
In 1947 Israeli President Ben-Gurion testified to the United Nations Special Committee on
Palestine against the idea of partitioning an Arab Palestine next to a Jewish Israel because he felt
that all of the British mandate should be given to sole Jewish leadership until the demographic
52 Fromkin, David.2009.A Peace to End All Peace : the fall of the Ottoman Empire and the creation of
the modern Middle East 2nd Holt pbk. New York : H. Holt and Co.
53 Ibid.
54 Abunimah, Ali.2006. One Country: A Bold Proposal to End the Israeli-Palestinian Impasse. New York, N.Y.: Henry
Holt and Company, 2006.sourcingSami Hadawi,VillageStatistics1970
24
advantage was in the favor of the Jewish population.55 Ben-Gurion also did not want to create an
official state constitution until this advantage was established. In a biography written by his
protégé and future Israeli president, Shimon Perez, Perez wrote that Ben-Gurion strategically
avoided stating the desired ethnic nature of the state in a constitution in blatant terms. Menachem
Begin, the founder of the Likud political party and the Prime Minister between 1977-1983,
opposed him. Begin wanted a constitution that explicitly identified Jewish ethnicity as a
requirement for full citizenship rights. Instead, the Basic Law of Israel was adopted as a and
refers generally to equal rights to all people and functions as a constitution in draft form.56
Today, the Current Likud party leader and Third Term Prime Minister, Benjamin Netanyahu is
currently advancing the same constitutional doctrine that the founder of the Likud Party pushed
for in 1948. Netanyahu’s Basic Law proposal is currently under review of the Knesset, and it has
been the most divisive element in the recent elections. The proposed amendment would identify
Israel as not as a ‘Jewish State’ but as a ‘State for the Jews.’ The proposal would get rid of any
ambiguity on the prioritization of resources of the state for the Jews above all others. While this
has been the practice of Israel since its founding, the legal mechanisms for land seizure are
currently more nuanced.
Jewish immigration to formerly owned Palestinian land has been facilitated by a covenant
between the Ministry of the Treasury and the Jewish National Fund. This covenant states that the
Jewish National Fund has discretionary rights to decide who is awarded a lease of land (97% of
the land is owned by the State of Israel). The Jewish National Fund blatantly states that it
55 Official Records of the Second Session of the General Assembly Supplement No. 11 on the United Nations Special
Committee on Palestinevol III annex A Oral Evidence Presented at Public Meeting Lake Success 4 July,1947
http://unispal.un.org/UNISPAL.NSF/0/7735B7DC144807B985256E8B006F4A71
56 “Basic Laws – Introduction”2003 http://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm
25
prioritizes Jewish applicants over all others in order to promote Jewish migration.57 This
covenant is legislated in the Israeli law as the Land Administration Act. It has been argued by the
Adalah Legal Center for Arab Minority Rights in Israel that this prioritization is unconstitutional
according to the Basic Law which guarantees equal rights to all persons, however the
government has defended itself by stating in this case that the Jewish National Fund is a private
organization in cooperation with the government and is therefore should not held to the standard
of the basic law.58 This case is currently pending. Netanyahu’s amendment to the basic law
however would make the separation argument superfluous because it would officially make the
priority of Jewish rights over other ethnicities constitutionally binding.
The support of the law within Israel was shown to be just sufficient enough to re-elect Netanyahu
back for a third term in office in 2015 by a narrow margin, as it was a major platform he ran on.
The election also identified a population in Israel that is not only against articulating ethnic
supremacy in the constitution but also they are in support of reverse the ethnic discrimination
that has been legalized by other judicial processes such as the Land Administration Act.59 It is
important to distinguish that the narratives I am examining are the ones that have been
communicated by the heads of state in these case studies, and may or may not be an accurate
reflection of all of the populations feelings on nationalism.
To be a citizen of Israel, you do not need to be personally victimized, you merely need to be
ethnically part of the group that was victimized in order to have a right to property and political
rights from the state.60 In contrast, to be a part of the new state of Kosovo you have to have been
57 Jewish National Fund- History.Accessed August 18, 2015.http://www.jnf.org/about-jnf/history/.
58 Adalah.ChallengingILA Policy of Tenders Open Only to Jews for Jewish National Fund Lands .
59 Ibid.
60 Accordingto the rightof return law5710-1950:1. Every Jew has the rightto come to this country as an oleh**.
2. (a) Aliyah shall beby oleh's visa.
26
personally victimized by the war in 1990’s to get your property back, or prove you were a
resident at the time and place of the war in the 1990’s. The Kosovo Property Agency (KPA)
facilitates the right of return for both Serb and Albanian families on a case by case basis. In
contrast, in Israel, Netanyahu states that The Basic Law Proposal would be the death of
Palestinians’ right to return under resolutions 149 and 242.
"It's time the Palestinians stop denying history. Just as Israel is prepared to recognize a
Palestinian state, the Palestinians must be prepared to recognize a Jewish state,
President Abbas: recognize the Jewish state, and in doing so, you would be telling your
people to abandon the fantasy of flooding Israel with refugees,"61
As defined by Israel, an Israeli national is a person who is a member of the ethnic group which
was victimized. i.e. a Jew and their decedents, as defined by Israel and the “Law of Return”. A
Palestinian National, as defined by Israel, has the collective right to a land that has been specified
by Israel, and not the territory where their property rights originate on a case by case basis.
Palestinian rights are not restored on an individual basis such as minority rights are in Kosovo,
and this is a fundamental difference in these nations understanding of their sovereignty.
Palestinian political thought is contentious over the idea of a collective realization of rights,
because it grants a collective remedy – a separate state, but in a territory where not all of them
could possibly realize their individual rights. The idea of the collective right is firmly ingrained
in the Israeli national character. The partition of a separate Arab state was not an official
Palestinian stance until Yasser Arafat accepted the Oslo Accords in 1993. Collective rights and
collective guilt/innocence are central to the concept of Israeli sovereignty, and it is projected on
the Palestinians. It is not for Kosovo or the United States; however, it is for Serbia and Russia.
61 RT English.March,5th 2014. End to Negotiations?’ Netanyahu’s Speech Sparks Furious Reaction from
Palestinians.
27
“Accusing me you are accusing my people.”62 Said Slobodan Milosevic at the beginning of his
trial on crimes he committed in Kosovo. For Serbian president Milosevic, guilt and innocence
could be shared by all or none because the actions in question were done in the interest of the
collective. For Serbia the nation and its citizens are, like Israel, defined by the membership to an
ethnic group that also experiences perpetual victimization (beginning in 1219, as we shall see
below).
The constitution of the contemporary Republic of Serbia was adopted in 2006. Article 1 of the
Serbian Constitution states that the “Republic of Serbia is a state of Serbian people and all
citizens who live in it…” The state is defined in terms of the presence of ethnic Serbs, and the
peoples who live around them. It is the ethnic Serb presence that establishes sovereignty. Where
ever there is a Serb that is where the Serbian military will claim the territory necessary to provide
that protection.
Milosevic came to Kosovo in April 24 1987 when it was still a province under the federal
administration of Yugoslavia, the capital of which was also the capital of Serbia, Belgrade.
Milosevic, was a leader in the Communist party at the time, and went against the party rules by
meeting with leaders from the Serbian National Party in Kosovo. He held a public forum and
televised dozens of Serbs testimony that they had been discriminated against by their Albanian
neighbors causing a “Serb exodus from Kosovo.” Milosevic infamously told them that “you will
never be beaten again”63. The members of local Kosovo government, who were elected in the
primarily ethnic Albanian province, were primarily ethnic Albanians. Milosevic called them “a
62 Vaksberg, Tatiana.2002. Milosevic Between Crime and Punishment. East European Constitutional Review 11.3
pg. 76 Print.
63 Percy, Norma. 1995.The Death Of Yugoslavia. BBC
28
truly Nazi Party”.64 He began restricting Albanians from holding public office and other public
professions in the education medical and legal fields.65
After his visit to Kosovo, the Communist party voted Milosevic into the presidency, ousting the
sitting president Ivan Stambolic, and rallied the country around the issue of Serbs in Kosovo to
justify taking greater control over Yugoslavia were he felt Serbs were also being persecuted by
the Croatians and Bosnians.
Slovenia seceded from Yugoslavia in 1991, Croatia in 1992 and all followed but Montenegro
who chose to stay united Serbia in a new Yugoslav federation. Milosevic reacted by proposing
new standards of what he thought ‘self-determination’ to mean in Yugoslavia, the right of every
ethnicity to live under the rule of a “fatherland” or an ethnic state.
“Let’s re-write the constitution and extend the right to secede, not just to republic but to
all ethnic groups. Serbs had the right to make the same choice. equal treatment, human
rights, no discrimination. That’s why we supported the Serbs outside of Serbia.”66
In this interview, Milosevic distinguishes the Serbs who lived outside of Serbia’s borders to have
the right to individually secede from the state they were in and remain a part of his Serbia. The
problem was that the leaders of the other countries that had Serbs were not willing to give up
there sovereign territory to Serbia, just because there were ethnic Serbs. Milosevic ordered the
Yugoslavian forces to invade Croatia and Bosnia. Unfortunately in Bosnia, after the peace
process in Dayton Ohio was over, territory was divided into sections of supervised autonomy, of
which Serbia has administrative power in the north and southeast of the country known as the
Republika of Srpska, and Milosevic got bits and pieces of what he wanted.
64 Vaksberg, pg 76.
65 Human Rights Watch 1999
66 Percy at 32:40
29
When Kosovo declared independence from Serbia in 2008 the Serbian government was shocked,
they were hoping for a Dayton like result in Kosovo that gave them more territory with
autonomous status.67
On Feb 17 2008 Serbian Prime Minister Vojislav Kostunica said of Kosovo:
“The Serb people will never stop fighting for their freedom, As long as the Serb people
exist, Kosovo will be Serbia."68
The Serbian nationalism’s narrative of perpetual victimization begins, like Israel, in pre-modern
times with the founding of the Serbian Orthodox Church (SOC) in Kosovo in 1219. The
importance of this story being the base of the national narrative is that it includes every person of
ethnic Serbian origin, as Israel’s narrative encompasses every person of ethnic Jewish origin.
The Serbian narrative is told in a way that excludes other ethnic persons from participation in
Serbian groups, when in fact there is historical evidence to the contrary. For example, the
Serbian epic poem tells the tale of the battle of 1389 where the Ottoman Turkish forces took over
the field of blackbirds in the capital of Kosovo Pristina. The poem was written during the ethnic
national movement of the 19th century, and revived by Milosevic in 1990, when he paraded King
Lazzarz’s coffin on a symbolic tour all around Yugoslavia69. The epic poem told a tale of pure
ethnic Serbian forces overtaken by pure Turkish and Albanian forces in league with each other.
Though, evidence shows that the forces were not divided so clearly on ethnic lines. There was a
feudal system at the time in Kosovo Albanians and Serbs lived on manors together and they
often fought in defense of their manor together and were therefore, on both sides of the conflict
with the Turks.
67 Accordingto the peace negotiations,Serbian majority provinces in Kosovo havethe right to participatein
Serbia’s elections,and other political and monetary benefits from Serbia.
68 Reuters. 17 Feb. 2008 Serbia Condemns Breakaway Kosovo as ‘False State.’
69 Judah, Tim. 1997. The Serbs: History Myth and the Destruction of Yugoslavia 200. Yale University Press.Pg 164
30
The place of victimization is a legal claim to property that the Serbian Orthodox Church can
exercise within Kosovo according to the current peace deal the Ahtisaari Plan. Wherever the
Serbian Orthodox Church claims is a place of Martyrdom they can legally exercise property
ownership and are entitled to military defense in what’s known as “Special Protective Zones”.70
Serbia’s narrative of victimization cannot be summarized by one confrontation, nor is the
Holocaust the whole of victimization in the Israeli national narrative.
The war in the 1990’s is the only moment of trauma in the modern national narrative as told by
the state institutions of Kosovo as they stand. The NATO backed majority political parties in
Kosovo address other incidences of victimization of Albanians under the Ottoman Empire by
characterizing them as egalitarian movements against foreign Turkish rule. The Albanian
Nationalist opposition party known as Vetëvendosje cites a longer narrative of Albanian
victimization in the region and they call for the formation of a greater Albania because of it. The
party name “Vetëvendosje” is Albanian for “self-determination”, and a major point on their
policy calls for a referendum vote that would ask the Albanian people if they want Kosovo to
join Albania. The majority political parties known as the PDK and the LDK condemn any
option of a greater Albania on the premise of rejecting ethnic homogeneity.71 According to the
state leadership in Kosovo today, a Kosovo national is a person that was victimized in the time
and place of the 1999 war. It is an assessment that is facilitated on an individual case by case
basis by the KPA. The KPA administers the return of property to both Albanian and Serb
populations. The facilitation of political rights is individually based in Kosovo and therefore it is
70 Law on Special protectivezones 2008/03-L039 http://www.kuvendikosoves.org/?cid=2,191,248
71 Kostovicova,Denisa.2005. Kosovo: the Politics of Identity and Space Routledge.
31
opposed to the Israeli and Serbian idea of the collective realization of rights, and collective ideas
of guilt and innocence.
Kosovo’s Prime Minister Hashim Thaci, the leader of the PDK party, condemned the idea of
collective guilt and innocence at the Holocaust Memorial Event in Pristina May 23rd 2013:
“Whilst we remember the victims of the conflict, to achieve true reconciliation we must
never forget the perpetrators in the process. Crimes occur in any war, but this does not
mean that everyone is culpable. To insist that everyone is equally guilty is as great a
crime as forgetting the victims and reasons why they were victimized.”72
Guilt and innocence cannot exist in the collective form for Kosovo. The UN is adjudicating war
crimes perpetrated by both Serbs and Albanians. There was no experience of this in Israel after
the conflict in 1948 that caused massive displacement, the only crimes of war that were being
adjudicated during the time of Israeli independence were those of the Axis powers in Nuremburg
and Tokyo.
Therefore, Israel supports Russia in its campaign in the Ukraine because the campaign is an
expression of the same kind of sovereignty claim uttered by Israel and Serbia in their
victimization narrative. Ukraine is considered to be the spiritual heritage of the Russian people,
which encompasses the entire ethnic group, thus the Russian ethnic minority in Ukraine are the
subjects of the Russian state.
“Millions of Russians and Russian-speaking people live in Ukraine and will continue to
do so. Russia will always defend their interests using political, diplomatic and legal
means. But it should be above all in Ukraine’s own interest to ensure that these people’s
rights and interests are fully protected. This is the guarantee of Ukraine’s state stability
and territorial integrity.73
72 Interfaith Kosovo. 2013. Prime Minister Thaçi's Speech - Holocaust Commemoration Event.
73 The Washington Post. 18 Mar. 2014. Transcript: Putin Says Russia Will Protect the Rights of Russians
Abroad. Web. 13 Aug. 2015.
32
Putin includes a veiled threat to Ukraine that is an exploitation of the doctrine of R2P in this
statement. If in fact Ukraine is suppressing Russian rights, according to R2P they would be
compromising their sovereign rights. The point of contention, who decides if Ukraine is
suppressive or not? Who decides if Serbia was repressive or not? Or Israel, or anyone for that
matter? The Security Council is supposed to decide according to the structure of the UN.
However in all of these cases the Security Council’s decisions have been defied as well as
honored.
Israel will base its decisions on that which confirms its sovereign identity, over all other
considerations. Israel may have broken relations with the USSR in 1957 over the fact that the
Soviet Union sold arms to its enemy Egypt. In 1999 when Sharon reestablished relations Russia
was still arming its enemies, and they continue to this day74. However, Israel has a higher
priority to maintain what it sees as the legal legitimacy of its sovereignty and the old eastern bloc
is increasingly defending the same theoretical principles that logic is built on. The American
notion of sovereignty is qualitatively different and this informs the direction of all parties foreign
policy. Israel will continue to do as we saw in its expression of support for Russia in Ukraine.
Methodology
Steven Newcomb’s book Pagans in the Promised Land is a model use of cognitive legal theory
as applied to American sovereignty law. The methodology in this study is largely based off of his
example as applied to the case law of the nations discussed. Newcomb showed in his book that
74 Reuters. 18 Aug 2015.“Iran Plans to Sign Contract for Russian S-300 Missiles nextWeek.” Web. Accessed 18
Aug. 2015.
33
American sovereignty is based on a “doctrine of discovery”. I will use this same methodology of
cognitive legal theory to show how the Israeli concept of sovereignty, is based on a “doctrine of
victimization”. Newcomb showed in his case law that the specific requirements of the definition
of “discovery” created a “radical category” of sovereignty. I will show in Israeli case law that it
is also a “radical category” of sovereignty that I will call “Victim Based Sovereignty”.
Israel’s declaration of independence has been accepted by the consensus of the general assembly
in 1948 and it has become the “prototype model” of which the Russian Federation (1993), Serbia
(2006), and Kosovo’s (2008) have based their sovereignty concepts on as evident in their
constitutional law. The United States and Israel do not share a common understanding of
sovereignty, though, Israel and Russia do, which explains their growing mutual support. Israel
and Kosovo differ in their definition of “victimization”, which explains Israel’s lack of support
for Kosovo even as “victim based sovereignty”. These differences can be seen in their respective
constitutions, domestic case law on property rights and return and discussion on the viability of
their independence in advisory opinions from the International Court of Justice (ICJ) (I will
expand on these in the analysis section below).
Cognitive legal theory is founded on the premise that law is an institution built on human
thought, and that thought process is a comparative based process of categorization. Newcomb
quotes Steven Winter, the founding scholar of cognitive legal theory75 on the second point;
“categorization is more than classification according to common properties… categorization is
the very process of reasoning itself.76
75 Winter, Steven L. 2003.A Clearing in the Forest: Law, Life, and Mind. University of Chicago Press,Print.
76 Winter: 2003, 70
34
Winter observes that when a ‘target domain’ (what needs to be understood) is conceptualized in
terms of a ‘source domain’ (what is already understood) a metaphor is formed. More plainly, we
understand a new concept, by comparing it to concepts that we have already accepted, and
metaphor is the bridge between the two. The metaphor determines types of categories available
for comparison.
Newcomb and Winter argue that the classic rationalist theory of categorization is the staple of
modern legal reasoning. Winter describes the aim of rationalist categorization as “fact patterns
that are included under the same general category are therefore covered under the same legal
rule.”77 The classic train of logic that is taught to every law student is expressed as:
“All things that share property P are in the category; all things that do not have property
P are not in that category. All things are assessed by their necessary and sufficient
conditions which constitute P within the element; to be covered by the according
category of law.”
The ability to decipher the necessary and sufficient terms according to this rule is one of the
main assessments of prospective law school students taking the Law School Admissions Test,
(commonly known as the LSAT).
“Discovery” and “victimization” are not conditions that are necessarily produced by the legal
requirements of sovereignty according to the requirements for UN membership to the UN as
defined by Charter 4. However these elements are communicated by the state officials to be
essential to justify their very existence.
Newcomb and Winter show that when a concept is dependent on an element that is not
necessarily produced by the requirements of the law, “a radical category” is formed. A radical
category consists of a central model or case with various extensions that, though related to the
77 Ibid.
35
central case in some fashion, nevertheless cannot be generated by rule. So if genocide is the
category of crime, the holocaust is a radical category of the crime. While they both have the
central conditions of P= “an attempt to destroy at whole of in part an ethnic or religious group by
a state actor” as the law requires, the holocaust has a requirement of the standard of proof to
attribute intention to a state actor. The conditions of genocide by itself cannot be reproduced by
the general rule the same standard of proof that was found in the Holocaust. However, other
genocides have been expected to produce the same standard of proof as the holocaust is a radical
category of genocide that has influenced the minds that write the law.78 The requirement of clear
attribution to a state actor was the backbone of both Milosevic’s and Adolf Eichmann’s self-
defense on their trials for crimes of genocide in the Balkans and the in Europe.
Newcomb showed that the U.S. definition of “sovereignty” was founded on an experience of
discovery as articulated in the case Johnson v. McIntosh 1823. This case was cited by the US
Attorney General in testimony to the UN as being the bases of its interpretation of treaty law on
sovereignty as of 2001.
“The U.S. Supreme Court decision Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 574
(1823), which held that as a result of European discovery, the Native Americans had a right to
occupancy and possession, but that tribal rights to complete sovereignty were necessarily
diminished by the principle that discovery gave exclusive title to those who made it. As a result,
the tribes' ability to sell or convey the property was subject to the approval of the sovereign.”
(Reply of the United States Assistant Attorney General Ralph Boyd and the Assistant Secretary of State for the
Bureau of Democracy, Human Rights, and Labor Lorne Craner to Questions from the UN Committee on the
Elimination of Racial Discrimination Geneva, Switzerland;August 6, 200179 )
In this 2001 statement, Boyd and Craner explain how the U.S understands the concept of its
sovereign domain over Native lands by citing a case that was arbitrated in 1823. It is the idea that
78 See background and Rosenberg and Selina
79 http://2001-2009.state.gov/g/drl/rls/rm/2001/4486.htm
36
sovereignty is granted to a person who has an experience of “discovery” of a piece of land. What
is not explicated in this statement is that the case cited Johnson v. McIntosh defines ‘discovery’
as “an encounter of a citizen of a Christian nation with of a land unknown by Christian
civilization.” And is therefore it is a definition of sovereignty that is exclusively available to the
Christian person. Non-christen inhabitants on that land are assumed to have rights of possession
and occupation but not sovereignty as Byod and Craner stated: “tribal rights to complete
sovereignty were necessarily diminished by the principle that discovery gave exclusive title to
those who made it” however a necessary constitute a “discovery” is that it needs to be made by a
Christian person. According to the opinion on Johnson, sovereignty must necessarily be an
action of a Christian, so if not done by a sovereign of a Christian nation, then no discovery has
occurred. So the understanding of “discovery” is predicated on the belief that the encounter with
the Christian world is the moment of inception and that non-Christian inhabitants cannot express
more than rights of occupation or possession, because Christianity is a necessary component in
the United States concept of sovereignty.
Newcomb finds that the metaphor of the “chosen people in the promised land” expressed in U.S.
Indian law creates the radical category in the U.S. To build on this I assert that the metaphor is is
responsible for the prohibition to question the actions of the so called “founding fathers” which
creates a dualistic cognitive system for the understanding of human actions that is limited to the
binary of good and evil and human and unhuman that is central to the understanding of genocide
in the cases of this study. This prohibition exists in spite of clear evidence of “the founding
fathers” actions that amount to what we now understand as genocide and ethnic cleansing. It is
incomprehensible to the US citizen that accepts this metaphoric model to conceive of these
patriarchs to have committed genocide because genocide is understood as something that is
37
perpetrated by “un-humans”80 as based in the example of the Nazi of the Holocaust. I make this
point concerning Newcomb’s evidence in order to illustrate a similar dynamic in the Israeli mind
which is central to their sovereignty.
Because Israel’s concept of sovereignty defines victimization as mutually exclusive with
perpetration, it is incomprehensible for someone holding this logical model to consider members
of the victim group as at this same time capable of perpetration- creating a dangerous logical
frame that alienates any pathway of understanding evil actions committed by humans because
those who commit those actions are categorized as not-human.
The engagement of the Christian metaphor creates a radical judicial category known as
“originalism” which presupposes there is unified signal intent of the founding fathers in the
cannon texts of the Nation. Originalist theorists, such as Supreme Court Justice Scalia argue that
these documents should be interpreted for the purpose of deciphering the intent of the men who
originally wrote them.
“All these questions (abortion, homosexual sodomy or assisted suicide and the death
penalty) pose enormous difficulty for non-originalist’s, who must agonize over what the
modern constitution out to mean in regard to each of these subjects, and then agonize
over the very same questions five or 10 years later, because times change…lawyers are
not trained to be moral philosophers history is a rock solid science compared with moral
philosophy.”81
Justices such as Scalia and other originalists understand the founding fathers production of
documents as an expression of a unified intent because their group work was unified by divine
inspiration. They take for granted that history as it is told in the narrative of the individuals who
had the privileged position to write it as being a “rock solid” accounting of events and their
80 This definition is obviously notimplyingthatNazismshould be devoid of responsibility or agency for its crimes
before and during WWII.
81 University of Virginia School of Law. 2015.Scalia Defends Originalismas BestMethodology for Judging Law..
38
implications. This belief system is facilitated by the Christian prototype model that categorizes
“prophets” as the source domain and the “founding fathers” as the target domain under the
common property of being the “writers of the law” in the prototype metaphor “The Pagans in the
Promised Land”. The stylization effects of the prototype model implies that the founding fathers,
being divinely inspired, are therefore irrefutable. The moral hazard of this assumption is that the
human deviance of the men that wrote the founding documents is unexamined and therefore and
uncorrected. For example, forced removal which is now recognized a central component of
genocide was designed by our third president, Thomas Jefferson.
Jefferson describes how that loan market was manipulated by the colonists to force Native
Americans to sell their occupation rights in exchange for the debt they incurred.
“To promote the disposition to exchange lands we shall push our trading houses and be
glad to see the good and influential individuals among them run in debt because we
observe that when these debts get beyond what individuals can pay they are willing to lop
them off by the cession of lands. At our trading houses, too, we mean to sell so low as to
merely to repay us cost and charges so as neither to lessen nor enlarge our capital. This
is what private traders cannot do, for they must gain; they will consequently retire from
the competition, and we shall thus get clear of this pest without giving offense or
umbrage to the Indians, and they will in time either incorporate with us as citizens of the
United States, or remove beyond the Mississippi. The former is certainly the termination
of their history most happy for themselves; but, in the whole course of this, it is essential
to cultivate their love. As to their fear, we presume that our strength and their weakness
is now so visible that they must see we have only to shut our hand to crush them, and that
all our liberalities to them proceed from motivations of pure humanity only.”
–Letter from President Thomas Jefferson to William Henry Harrison February 27,
180382
In this letter from the third President of the U.S. Thomas Jefferson to the future ninth president
William Henry Harrison, then governor of the Indiana Territory in 1803, Jefferson discloses to
Harrison a strategy to accomplish a precondition for genocide; forced removal, under the
pretense of “liberal provision” and “humanity”. Jefferson clearly states that the bottom line of
82 Prucha,Francis Paul. Documents of United States Indian Policy. U of Nebraska Press,2000.Print. Pg. 22
39
this policy for the Natives is to assimilate or be removed. President Andrew Jackson passed the
Indian Removal Act in 1830, which continued the legal logic that had Jefferson espoused. In
1862, the Governor of Minnesota (formerly of the Indiana Territory) Alexander Ramsey,
dropped all pretense of humanity and liberalization and used the term “extermination”:
"Our course then is plain. The Sioux Indians of Minnesota must be exterminated or
driven forever beyond the borders of the State. . . .They must be regarded and treated as
outlaws. If any shall escape extinction, the wretched remnant must be driven beyond our
borders and our frontier garrisoned with a force sufficient to forever prevent their
return."83
The men who orchestrated what we now understand as genocide and ethnic cleansing are the
same men that those from the originalist school of legal thinking conceptualize as conduits of
sacred work. The originalist concept of justice is founded on a “chosen people in the holy land”
metaphor which categorizes the founding fathers as prophets. Prophets are the writers of the law
in the “chosen people in the promised land” metaphor
Therefore, it is incomprehensible for a justice or legislator that practices original intent
interpretation of the law to be able to critically question the purpose of the founding fathers
because they are cognitively categorized as one in the same as prophets in the base metaphor.
This is why the “Discovery Doctrine” though morally repugnant, remains the precedent on
property ownership to this day. For example, the legal doctrine of “Separate is Equal” as
established by Plessy v. Ferguson in 1896 was overturned via Brown v Board of Education, in
1954. The doctrine of “Christian Discovery” as found in Johnson v. McIntosh 1823 has never
been explicitly challenged in the judicial system by such a case as Brown, and is still sited by the
US as an exemplary precedent to this day.
83 Minnesota Historical Society.1908. Minnesota Historical Society Collections. Print.Pg. 43
40
As Newcomb’s methodology examines the unchallenged precedent which rules American
property law, I will focus on the legal precedents that define Israeli property law in comparison
with that of Kosovo’s, Serbia’s, and Israel’s new patron state, Russia. The entitlement to land on
grounds of membership to a victim group is founded in the international legal system by Israel’s
declaration of sovereignty in 1948, and though Kosovo claims a similar entitlement as a new
state forged out of a genocidal experience. I will demonstrate through the legal precedent that the
concept of property law is fundamentally different between Kosovo and Israel, and further,
Israel’s concept is mirrored more accurately by Serbia and Russia explaining their departure
from relations with the United States.
Analysis
Israel’s declaration of independence in 1948 became the “prototype model” of victim based
sovereignty, upon which Kosovo based its claim to statehood in 2008. They are both claims to
“victim based sovereignty” in that statehood became an impetus as it was seen as the only
alternative to victimization. Their respective constitutions, domestic case law on property rights,
and war crimes trials, prove this assertion. The discussions in these spaces hints to the root of
Israel’s common ground with Kosovo in terms of victim based sovereignty, as well as their
ideological departure from each other that has steered Israel closer to Serbia and Russia in recent
times. The evidence provided below shows that while Israel and Kosovo began their claims
based in victimization, they see their victimization, and therefore their statehood, in different
terms.
Before it made its official declaration of independence Israel requested an advisory opinion from
the International Court of Justice (ICJ) on the matter. Israel asked, in essence, if it could
41
reference its recent experience of victimization as a supporting argument for its independence to
the General Assembly, and secondly, if it was dependent on the conditions of an independent
state of Palestine to declare its independence. These two questions were put into abstract terms of
general theoretical conditions and avoided addressing the conditions of the case at hand.
“Is a Member of the United Nations which is called upon, in virtue of Article 4 of the
Charter, to pronounce itself by its vote, either in the Security Council or in the General
Assembly, on the admission of a State to membership in the United Nations, juridically
entitled to make its consent to the admission dependent on conditions not expressly
provided by paragraph I of the said Article? In particular, can such a Member, while it
recognizes the conditions set forth in that provision to be fulfilled by the State concerned,
subject its affirmative vote to the additional condition that other States be admitted to
membership in the United Nations together with that State?”
The court found the question to be outside its jurisdiction due to its political nature. Because
Israel restricted its question to the abstract realm, it avoided an opinion from the court which
could potentially explicitly restrict the specific actions that accompanied its eventual declaration
in 1948, including the restriction of Palestinians right to return to their property.
Israel’s eventual declaration of independence in 1948 was predicated on the assertion that no
other alternative could be arrived at peacefully due to its experience of victimization and
therefore, as it had posed to the ICJ, its political situation was the main support for its statehood..
“The catastrophe which recently befell the Jewish people- the massacre of millions of
Jews in Europe – was another clear demonstration of the urgency of solving the problem
of its homelessness by re-establishing in Eretz-Isreal the Jewish State, Which would open
the gates of the homeland wide to every Jew and confer upon the Jewish people the status
of a fully privileged member of the comity of nations.”
When Kosovo made its own declaration of independence in 2008 it also used language that
distinguished itself as a special case arising from its experience of victimization and further that
it had also exhausted all other alternatives other than independence in its negotiations with
Serbia.
42
“Observing that Kosovo is a special case arising from Yugoslavia’s non-consensual
breakup and is not a precedent for any other situation. Recalling the years of strife and
violence in Kosovo, that disturbed the conscience of all civilized people…. Regretting
that no mutually-acceptable status outcome was possible, in spite of good-faith
engagement of our leaders.”
Kosovo’s declaration was contested by Serbia on the grounds that Serbia claimed that the
negotiations between the two as led by former President of Finland Martti Ahtisaari known as
the “Ahtisaari Plan for the Final Status of Kosovo” and UN resolution 1244 did not allow for an
option of an independent Kosovo. However, when the question was posed to the ICJ it was
specifically on whether or not the final status of Kosovo as an independent state was in violation
of the Ahtisaari plan and UN resolution 1244. The court decided in favor of Kosovo in that it had
indeed exhausted other alternatives of a final status and that seeking independence as a solution
was a valid claim.
Kosovo sees itself as a modern nation state resulting from genocide in the 1990’s, a state that has
defined borders and a responsibility to protect the people within those borders. Serbia claims
statehood through an ethnic collective that has been victimized not just in the war in the 1990’s
but in premodern times. Serbian victimization spans throughout the history during which other
national borders have come and gone, and it sees its responsibility to protect ethnic Serbs
regardless of other national borders. Serbia’s definition of statehood as vested in the ethnic
Serbian people will remain so long as there are ethnic Serbian people who need protection. The
physical borders of that state may change, but not the primary material, the people.
Like Serbia, the state of Israel is made up of the persons that are members of the victimized
group that has been under perpetual victimization from ancient times, and so long as there are
people of that group who need protection, the state will persist. This perpetual victimization
endows the members of the group with an automatic right to property of the state above others
43
under the 1950 Law of return or “Right to Aliyah”. In Kosovo, citizens of both ethnic Albanian
and Serbian descent who were victimized in the war in the 1990’s are entitled to property and the
restitution thereof. Kosovo assesses this right on a case by case basis regardless of ethnicity,
where Israel recognizes the right to property as a collective one by virtue of ethnicity.
The Kosovo Property Claims Commission (KPCC) is the judicial body that is charged with
hearing cases of property disputes that originate in the time period between February 27th 1998
and June 20th 1999 and other cases that are considered to be conflict related for both Serb and
Albanian individuals.84
Palestinians who lost property in the 1948 conflict leading to the establishment of the state of
Israel are granted the collective right to return to their property by UN resolution 242. However,
there has never been a domestic or international judicial body that has facilitated this right on an
individual basis as the KPCC has done in Kosovo. The right of return for Palestinians is only
discussed in collective terms in the UN and within the surrounding countries that host their
refugee camps. Israel and Serbia are much more similar in their view of recognition of rights in
the collective over individual. Israel and Serbia understand their sovereignty to be vested in the
ethnic collective. As Herzl explained (and as discussed in the previous section):
“The people are the subjective, the land the objective foundation of the state, and the
subjective basis is the more important of the two”.85
Serbia adopted its new constitution As the Republic of Serbia in 2006. It expresses the same idea
of sovereignty as being vested in its ethnic persons in the same way of Israel. Article one of the
Republic of Serbia defines the state as being made up of the subjects of the state first and
84 For a survey of cases involvingthe property restoration of both Serbs and Albanians see:
http://www.kpaonline.org/SearchSC/frmSearch.aspx
85 Ibid.
44
foremost. Those subjects are defined by their ethnic affiliation (being Serb) and those who live
around them.
“The republic of Serbia is a state of Serbian people and all citizens who live in it.”
This terminology allows for all Serbs in any location to be a part of the state including those
within Kosovo and other foreign nations whether born in the homeland or abroad. It continues to
affirm this in article 2
“Sovereignty is vested in citizens… No state body, political organization, group or
individual may usurp the sovereignty from citizens, nor establish government against
freely expressed will of the citizens.”
This is specifically referring to Serbs in Kosovo. Article 13 states:
“The republic of Serbia shall protect the rights and interests of its citizens abroad. The
republic of Serbia shall develop and promote relations of Serbs living abroad with the kin
state.”
For Serbia, like Israel, the material of the state is the ethnically defined collective, and the “kin
state” is the physical space of their homeland which is subject to change. Sovereignty is also
expressed over members of the ethnic group on other defined territories through the states
responsibility as the ethnic homeland to provide protection to them, even at the cost of the rights
of members of other ethnic groups.
Israel’s Basic Law on Dignity and Liberty (1950) is cited by the government as the functional
constitution of the state as there has not been one adopted to this day.86 It reflects the basic
values and entitlements of human rights from the United Nations such as no violation of the
body, no violation of personal property and freedom from arbitrary arrest. However all of these
provisions can be overruled by the eighth article in the law:
86 Israeli State Government Website: https://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm
45
“8. There shall be no violation of rights under this Basic Law except by a law befitting
the values of the State of Israel, enacted for a proper purpose, and to an extent no greater
than is required.- (1992 amendment added) or by regulation enacted by virtue of express
authorization in such law.”(Author’s emphasis)
This exception has been invoked in the supreme court for example in a case challenging a law
that prohibited the freedom of movement for Palestinians that caused families living in Israel and
the Occupied Territories to become separated. In the majority opinion in Mirfat Taysir Abed Al
Hamid and others v Minister of Interior and Others (2003) Justice Adiel held that there was
indeed a violation of constitutional rights, however this violation served the state and it was
therefore allowed.
“The law violates the constitutional right to family life which is a part of human dignity,
but not the constitutional right to equality. Notwithstanding, in view of the bloody conflict
between the Palestinians and Israel, the violation of the constitutional right is
proportionate. Therefore the law is constitutional.”87
In the eyes of the court, there is an admission of the violation of basic human rights however, the
concept of “proportionality” comes into play. It is not just the comparison of communities in the
present situation, but when compared to the entire historical narrative of the suppression of the
Jewish people in the world the denial of these rights to this individual pales in comparison. The
Palestinians are merely the current character in place that are playing the role of the perpetrator,
yet they receive the comparison of centuries of other perpetrators acts in order to justify the
taking of their rights. Serbian Nationalism also makes similar comparisons to what it sees as the
“other” which, is also a general understanding of a threat from the Muslim world.
Israel argued in its own report that its actions were in the framework of proportionality because
while they had only suffered 12 casualties in the operation to the 1,400 Palestinian civilians who
were killed the Israeli Defense Forces (IDF) argued that the operation was in retaliation for years
87 Mirfat Taysir Abed Al Hamid and others v Minister of Interior and others HCJ 10650/03 2006.The Supreme Court
of Israel.
46
of rocket attacks, and suicide operations which killed 1100 over a number of years and it
estimated “thousands more at risk” effectively expanding the scope of their victimization from
the event at hand to include an undefined amount of time to count casualties at least on the Israeli
side.88
In regards to Kosovo, Milosevic’s self-defense at his trial for war crimes in Yugoslavia at the
Hague was founded on his interpretation of his own actions as motivated by humanitarianism,
and employed the Israeli prototype model category of the un-human the “Nazi” to discredit his
adversaries/victims. He could not conceptualize his own actions as being unhuman, because he
was under the influence of his ethnic collective whose victimization he saw was perpetual and
therefore justified any means of protection, even at the expense of “the other”.
“The situation in Kosovo was intolerable, Serbs had been deprived of their rights, who
would think our country capable of such discrimination?... Equal treatment, human
rights, no discrimination. That’s why we supported the Serbs outside Serbia…The
Albanians could do this because the province of Kosovo was virtually a republic the local
council had the power to implement what I’d call a truly Nazi policy.” 89
Though it was a violation of the communist party line to meet with the Serbian Nationalist party
in Kosovo, in April of 1987 Milosevic went to Kosovo and met with them anyways. He insisted
that this action in solidarity with the ethnic nationalist movement was only in reaction to
Albanian nationalism, though his evidence of such was confined to testimony heard in Serbian
Nationalist party meetings, and references to basic demographic realities of Albanian populations
being in larger numbers in Kosovo. “It’s absurd when the war started that we Serbs were accused
of nationalism. Us!”90 Milosevic consistently described his actions as merely reactions to his
adversaries, as well as his actions as being an extension of the will of his people and not his own,
88 Israeli Defense Forces The Operation in Gaza: factual and Legal Aspects, June 2009; Art. 36 pg. 14
89 Percy. Part 2 at 5:40
90 Percy. Part 1 at 1:20
47
in this way this he divorced his own responsibility from his crimes against humanity. Whereas
Eichmann was obedient to the authority of the Nazi Party, Milosevic was in obedient to the
Serbian Nationalist mob.
In a meeting with the Serbian nationalist party in Kosovo in April of 1987 Milosevic sat in a
room and heard testimony of Serbs in the nationalist party about their feelings of discrimination
from the Albanians around them.
“For the first time I heard the phrase “ethnically pure” the Albanians wanted an
ethnically pure Kosovo. They murdered Serbs. Defiled our graves, burned monasteries.
The Exodus of Serbs from Kosovo began.”91
By comparing the Albanian government to a “Nazi” regime Milosevic described Serb
persecution in Kosovo as going through an “exodus” which is the primary experience of Jewish
victimization that defines them as a group being in held in exile in Babylon and later in Egypt.
This one metaphor was taken from the state model of the ancient narrative of Israel. In an
interview with the BBC the leader of the Serbian nationalist party Miroslav Solevic detailed how
the mob had antagonized the police to violence:
“We told our lads to prepare for a real fight. We parked two lorries full of stones we
didn’t say they were for the police, they were there just in case…“we could hear the
noise coming from outside, what could it be? Our boys ran for the stones we had parked
outside, they turned and pelted the police. Each policeman got a “gift” from the masses.
On the head on the helmet on the back. I went to Milosevic, I said “the police outside are
beating our people” he couldn’t pass this hot potato to anyone else. So he walked outside
because he was obviously afraid. He knew he was playing for high stakes.”92
Cameras were rolling when Milosevic stepped outside into the crowd that day when a man in the
crowd came up to him and declared: “the police attacked us they hit women and children the
91 Percy. Part 1 at 2 :45
92 Percy. Part 2 at 1:40
48
Albanians got in among us, we were beaten up”93 to which Milosevic responded “You will not
be beaten again.”94
This scene was played on the 3 leading Serbian television channels that evening and Milosevic’s
media persona as a leader of the Serbian Nationalist movement was born.
Israel and Serbia justify their military campaigns through the language of protection and human
rights, by comparing the victimization that they perpetrate to the perpetual victimization of their
ethnic collectives in their national narratives experience. They both display a basic categorization
of victim based sovereignty grounded in the binary categories of all human collectives as being
either one of them a “victim” or apart of another group “perpetrator”, “good and evil” “human
and un-human”.
Hannah Arendt’s analysis of Adolf Eichmann’s trial in Jerusalem in 1961 and the popular
reaction to it in Israel articulated the response towards Eichmann’s self-defense of “banality”.
Arendt’s observations of Eichmann’s evil deeds having originated in a very ordinary human
tendency towards obedience to authority was validated years later by quantitative research by
professor Stanley Milgram. Milgram’s famous experiment showed that eighty percent of
Americans would also follow orders from an authority figure to the point of lethal consequences
to others. Milligrams participants were enlisted as “teachers” whose task it was to administer an
electrical shock of increasing intensity to a “learner” when they were to answer a question
wrong. The “learners” were paid actors who feigned severe pain upon receiving the shocks; the
“teachers”—Milgram’s real subjects—were under the impression that they were administering
the shocks as part of a behavioral study. The “learners” were prodded by one of Milgram’s
93 Percy. Part 2 at 3:13
94 Percy. Part 2 at 3:33
49
monitors who sat with the “teacher”. If the teacher were to show some form of questioning of the
experiment the monitor would respond with the neutral statements such as “Please continue”,
“Please go on.” or “The experiment requires that you continue.” but only when the subject
resisted. 35 out of the 40 “teachers” or subjects in Milgram’s experiment went on to administer
what they believed were shocks of 435 volts – a lethal dose to another human being.95 Milgram’s
famous experiment has been replicated with different variants in different locations in the world
with remarkably similar results. Yet, his initial published study which cited Arendt’s research on
Eichmann was met with controversy in 1963 such as Arendt’s work had been received in 1961.
The manner of criticism of Arendt’s observations of Eichmann’s trial in Jerusalem had an
element of personal defamation that Milgram did not face in that Ardent, herself being a German
Jew who had spent time in a concentration camp as a political refugee, was rejected from her
collective group identity for departing from the cognitive binary model (explored in the
methodology). In Israel she was labeled a “self-hating Jew.” Ardent lost many friends and
colleagues as a result of “The Banality of Evil” most famously her colleagues in Israel who were
amongst the intellectual architects of the state. The reason for this is that the cognitive model the
state is based on is a binary system that cannot except that Eichmann or anyone could be both
evil and human at the same time.
The act of comprehending the Nazi as part of the categorical human race inferred that he was in
the same category of the holocaust victim. The compartmentalization of certain acts as not
“inhumane” but “un-human” obscures any possible path to understanding those acts in human
terms. How can one use human tools to explain that which is considered not to be a part of the
human experience? It alienates any self-awareness of the kind of behavior that could cause
95 Milgram,Stanley. 1963. Behavioral Study of Obedience. Journal of Abnormal Psychology 67 (4): 371–78.
Geneva Garland - MA Thesis Falll 2015
Geneva Garland - MA Thesis Falll 2015
Geneva Garland - MA Thesis Falll 2015
Geneva Garland - MA Thesis Falll 2015
Geneva Garland - MA Thesis Falll 2015
Geneva Garland - MA Thesis Falll 2015
Geneva Garland - MA Thesis Falll 2015
Geneva Garland - MA Thesis Falll 2015
Geneva Garland - MA Thesis Falll 2015
Geneva Garland - MA Thesis Falll 2015
Geneva Garland - MA Thesis Falll 2015
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Geneva Garland - MA Thesis Falll 2015

  • 1. VICTIM BASED SOVEREIGNTY; A COMPARATIVE CASE STUDY by Geneva Garland A THESIS Submitted to The New School in partial fulfillment of the requirements for the degree of MASTER OF ARTS in International Affairs The Graduate Program in International Affairs December, 2015 First Reader: _____________________________________ Date Approved: _________ (print name) _____________________________________ Second Reader: ___________________________________ Date Approved: _________ (print name) _____________________________________
  • 2. 1 Table of Contents Abstract……………………………………………………………………………………………2 Introduction……………………………………………………………………………………..3-8 Background…………………………………………………………………………………….8-32 Methodology………………………………………………………………………………….32-40 Analysis………………………………………………………………………………………40-54 Conclusion……………………………………………………………………………………54-56 Bibliography………………………………………………………………………………….58-61
  • 3. 2 Abstract Sovereignty is a protean word, with multiple ascriptions changing across time. It is generically understood in terms of the monopoly of violence over a defined territory. That authority is generality referred to as the “state”. Yet what makes a state a state? I explore this question by means of an alternative concept I propose: “victim based sovereignty”—whereby state sovereignty and political authority coalesce around a national experience of victimization. I argue that Israel, through codification of the Holocaust as a means to access statehood in the 1940’s, has the monopoly on “victim based sovereignty”. This, I surmise, explains both the political dynamics of Israel’s sovereignty- and of other differently qualified “states” that claim the same type of Identity status- as well as Israel’s recent shift in foreign policy away from the US and toward Russia. Because Israel’s victimization is the basis of its sovereignty, it must constantly reenact this victimization in order to express and reinforce its own sovereignty, and this is the primary impetus that drives Israel’s foreign policy decisions. To explain this concept I analyze the foundational laws and documents of Israel’s claim to statehood. Then I use cognitive legal studies as a methodology to explain where the concept of victimization becomes tangible law. I link this to the relationship between Serbia and Kosovo, which then I link to Russia and the US to explain a new cold war dynamic in which Israel is on the other side of the old Iron Curtain.
  • 4. 3 Introduction US media claims there has been a shift in Israeli diplomacy in the past year, noting that the relationship with the United States is no longer tractable1—a contention shared by a substantial part of US public opinion.2 I claim that this shift actually has its origin in a prior historical moment namely, the U.S. and NATO intervention in Serbia and Kosovo in 1999. This intervention created the conditions that facilitated Kosovo’s claim to statehood in 2008. In my study I claim that the time between 1999 and 2008 can be seen as the progressive articulation of a claim to statehood through a “narrative of victimization” exemplified by the leadership in Kosovo. I claim that this narrative finds its source in the one that allowed for the Israeli State to emerge in 1948. And it plays a crucial role in explaining Israel’s diplomatic shift of allegiances from the U.S. to Russia in recent times. In March of 2014, the UN General Assembly voted on a resolution that condemned Russia’s military actions in Ukraine and confirmed the territorial integrity of the Ukrainian state.3 This vote was strongly supported by the United States. It was not supported by Israel who abstained. This abstention was noted with surprise and indignation by the White House and State Department4 as Israel has been considered to be a great ally with the United States. Israel receives more American foreign aid than any other state in the world.5 1 Ravid,Barak.4 April,2015. U.S. Officials Angry: Israel doesn’t back stance on Russia. Haaretz Bremmer, Ian. 2 April 2014. The U.S. and Israel Are Divided — and That Won’t Change. Time. Goldberg, Jeffrey. 28 Oct. 2014. The Crisis in U.S.-Israel Relations Is Officially Here. The Atlantic 2Edwards-Levy, Ariel. 3 April 2015. Half Of Americans Think The Nation's Relationship With Israel Has Weakened. Huffington Post. 3 UN General Assembly, March.27, 2014 Resolution 11493,“Territorial Integrity of Ukraine” 4 Ravid,ibid. 5 Journalist’s Resource.2015.U.S. Foreign Aid to Israel: 2014 Congressional Report.
  • 5. 4 However, as this study explains, Israel’s siding with Russia on the issue of Ukraine’s territorial integrity can be understood when considering the ideas Israel uses to justify its existence as a state in the first place. It is those ideas and legal precedents that Israel is trying to maintain when making a decision that may seem at first glance to defy other logical considerations such as supporting Russia in Ukraine. Israel has departed from the U.S. and sided with Russia on the very same issue of territorial integrity in the past- in Kosovo of 1999. Israel’s statements condemning NATO’s use of force against Russia’s ally Serbia,6 and statements in support of its president Slobodan Milosevic7 were also met with surprise and anger from the White House at that time.8 The Israeli Minister of Foreign Affairs, Ariel Sharron was criticized for his statements as well as his 3 visits to Russia that same month, which were perceived as a betrayal of the alliance Israel had with the United States by his own Likud party as well as by the opposition.9 In 2015, political analysts have commented not only on the departure of Israeli policy from the U.S., but also on Israel’s growing alliance with Russia,10 despite the fact that Russia has supplied weapons to Iran11 and has pushed for the lifting of an arms embargo against the wishes of the United States in a UN Nuclear Power agreement12 (reached this July 14th 2015). 6 Rodan, Steve 1999. Israel Government Refrains from Supporting NATO Attacks. The World Tribune. 7 Fisk,Robert. 2014. Ariel Sharon 2014.The Independent. 8 Wilkinson,Tracy. 9 Apr. 1999.Israeli’s Kosovo Remarks Raise Ire. Los Angeles Times. Web. 28 July 2014.. 9 Fisk,ibid. 10 Ahren, Raphael. Despite S-300s to Iran, Israel to stay close to Russia. The Times of Isreal 21 April,2015 11 AP. 14 April 2015.Iran says Russian Missiles Could Arrive This Year. 12 MFA of Russia.July 7,2015. Foreign Minister Sergey Lavrov’s Remarks and Answers to Media Questions at a News Conference Following the Ministerial Round of Talks on Iran's Nuclear Programme, Vienna. Web. 15 July 2015..
  • 6. 5 Israel has been squarely against any agreement with Iran on the condition that Iran recognizes Israel’s right to exist.13 With this magnitude of condemnation of Russia’s actions concerning Iran, U.S. officials have understandably reacted to Israel’s support of Russia in terms of Ukraine with surprise.14 In this study, I claim that Israel’s foreign policy is predictable if their priorities are understood. Those priorities are focused on the maintenance of their own principals of territorial integrity and what they feel gives them the right to use violence to enforce that territorial integrity. For Israel, their experience of victimization from genocide justifies their use of violence in order to maintain the control of the West Bank and Gaza. Israel expresses its support of Russia and Serbia in their use of violence as being justified because they are protecting themselves from a victimization that Israel perceives as similar to its own.15 Israel has a certain moral authority in the UN on the subject of genocide as the standard bearer of the legal definition of genocide derived from the holocaust, and it is the first state in the UN era to emerge as a direct result of that experience.16 When Kosovo declared its independence in 2008 it made its argument for the ICJ using the same logic as Israel had done in the General Assembly in 1948. The logic was that the only measure that was sufficient to protect victims from genocide, was the creation of a new state. However, despite many attempts at 13 Reuters. 6 April,2015. Obama: Nuclear Deal Does Not Depend On Iran Recognizing Israel. 14 Ravid,op cit. 15 Many examples of this will be discussed in the evidence presented in later sections of this study 16 See:“The Declaration of the State of Israel”1948 “the Declaration of the state of Kosovo” 2008 The evidence of this will bediscussed extensively in later sections
  • 7. 6 establishing a relationship, Israel has not, and to this day will not recognize Kosovo’s right to exist.17 The question of who has the right to use violence to further a claim of territorial integrity (e.g. R2P) is not a fully agreed upon one in the United Nations. Many factors are considered by members of the General Assembly and Security Council when debating a states use of violence; such as the general history of the conflict, the role of the territory in the national and spiritual character of the actors, the conditions of human migration that effected the ethnic populations of the territory in question and the collateral damage of the use of violence to enforce that territorial integrity, among other things. In the case of Ukraine, Israel relates to Russia. It is Russia that has territorial control over Ukraine, and it is Russia that is allowed to use violence to enforce its claim. In the case of Kosovo, in the view of Israel, it was Russia’s ally Serbia who had the right to territorial control over Kosovo and Serbia who had the right to use violence to maintain that territory. In the case of Palestine, in the eyes of Israel, it is Israel that holds the right to express territorial control over the West Bank and Gaza and Israel who has the right to use violence to enforce that claim. Israel is the standard bearer of this kind of victimization as its statehood is founded on the necessity for protection from it. It is this from same basis of protection against victimization that Kosovo draws its claim. Kosovo appeals to Israel to recognize its need for independence as a necessary result from its victimization by the Serbs in the 1990’s. 17 Erebara, Gjergj 29 June 2011 “Israel Dismisses Talk of RecognizingKosovo"Balkan Insight.Web. Accesed 7 May 2015.
  • 8. 7 Paradoxically, when Israel supported Russia and Serbia they justified their use of violence in Kosovo as an act of protection from victimization that was similar in ways to their own, in the way that they classify their victimization as perpetual, and rooted in an ancient clash of pre-modern civilizations.18 Israel is redefining who it thinks should be a part of two groups, those who can use force and those who cannot. And while it publicly condemns Russia for its support of Iran, Russia has positioned and proposed itself as a mediator for other conflicts in the Middle East that Israel finds useful. Israel began to see this utility in 1999, when Ariel Sharon re-established relations with Russia for the first time since 1957—based on the consideration that Russia could be a mediating partner.19 The evidence in this study ultimately questions how successful these potential mediations can be when they are led by actors that quantify this interaction as a zero sum game where victim and perpetrator are unequivocally defined. I claim that this tendency towards reading politics through a binary lens is innate in the constitution of the state of Israel and can be seen increasingly in the case of Kosovo. The shared intractable dynamic in the Israeli/Palestinian and the Serbian/Kosovo peace negotiations is exposed in Kosovo’s unsuccessful appeal to achieve Israel’s recognition of its independence. Even while using the same legal principles Israel used in its 1948 Declaration of Independence as points of appeal,20 Kosovo’s victimization experience falls short of the 18 The evidence of this will bediscussed extensively in later sections 19 The Ministry of Foreign Affairs of Israel 159.Cabinetcommunique on Foreign Minister Sharon’s visitto Russia - 11 April 1999.As a matter of fact, Israel has proposed itself as a possiblemediator between Russia and Ukraine. See Lazaroff, Tovah. 27,Jan. Liberman Ready to Mediate between Russia and Ukraine 2015 Reuters 20 Tanjug, Interfax.8 May 2015. Serbia Won’t Recognize Kosovo, President Reiterates. B92.net
  • 9. 8 qualifications Israel sees in Russia and Serbia as being perpetual and being the wrong side of the clash of civilizations.21 I claim that since Israel’s victimization is the basis of their sovereignty they must constantly reenact this victimization in order to express and reinforce its own sovereignty and this is the primary impetus that drives Israel’s foreign policy decisions. Background Serbian troops had been imposing military law in the majority ethnic Albanian province of Kosovo for almost a decade in 1999. Evidence of war crimes committed by both Serbs and Albanians were surfacing to the international community, though it became clear that there was a systematic ethnic cleansing of Albanians at the hands of Serbian troops in process.22 The US having led the negotiations with Serbian President Slobodan Milosevic in Dayton Ohio years earlier over Bosnia and Croatia, once again was at the helm of the cease fire talks with him in Rambouillet France over the fate of Kosovo. It was also in 1999 that Ariel Sharon, Minister of Foreign Affairs for Israel, traveled to the USSR. This was the first visit from an Israeli diplomat to the Soviet Union since Israel broke off relations in 1957 following the war of the Sinai Desert. 21 Van Crevland,Martin. 2013. Kenote Speach “The Balkans and the Middle East are they mirroring Each Other?” Peja/Pec conference Kosovo 2013. 22 Human Rights Watch.26 October 2001. Under Orders: War Crimes in Kosovo: In-Depth Report Documents Milosevic Crimes.
  • 10. 9 Sharon’s move caused friction with the United States as well as within domestic Israeli politics.23 The United States is considered Israel’s primary political and military ally, yet their relationship was not always so close. It was in fact only after the war of the Sinai Desert and the consequent severing of diplomatic ties with the Soviet Union that Israel became dependent on the United States. On October 29, 1956 Israel attacked Egypt in collaboration with France and Britain, invading the Sinai Desert. The United States strongly opposed Israel’s action as well as the British and French backing thereof. The failed invasion had severely weakened the British and French militaries, and Israel could no longer rely on them. This prompted Israel to turn to the United States. The Soviet Union had condemned the violence on the floor of the UN along with the United States, however it soon became known that the Soviet Union was arming Egyptian President Gamal Nasser.24 As a result, Israel officially severed relations with Moscow in 1957, until Arial Sharon broke that silence in 1999.25 In April of 1999, Benjamin Netanyahu was finishing out his first term as prime minister of Israel, having led a majority Likud party government since 1996. He defended Sharon’s meeting with Russia against criticism from the Labor party: “These opposition attacks should be viewed with severity, since this is an important visit - which comes at the invitation of the Russian Foreign Minister - during which the Foreign Minister will raise, as the first matter on the agenda, the Russian commitment for joint action to prevent the transfer of non-conventional technologies to Iran. Israel is coordinating with the United States concerning the policy to combine incentives for and pressure on Russia toward preventing this transfer.” Sharon felt at the time that the best way to deal with the USSR arming Iran, was to negotiate with Russia to modify the terms of their deals to bar weapons of mass destruction. This required 23 The Ministry of Foreign Affairs of Israel 159.Cabinetcommunique on Foreign Minister Sharon’s visitto Russia - 11 April 1999 24 BBC. 21 July 2006. Suez Crisis: Key Players. . 25 The Ministry of Foreign Affairs of Israel 159
  • 11. 10 creating a new diplomatic relationship—which since 1999 has gravitated mostly around the subject of arms trading, with the Soviet Union monitoring position the flow of weapons in the Middle East and Asia. I contend that there is an even more fundamental issue which Israel and Russia share; that is the philosophy of their sovereignty and that events in Kosovo of 1999 reveal to them be more ideologically aligned in this regard then Israel’s bond with the United States. In July of 1999, peace talks with Serbian President Milosevic and the United States over Kosovo failed. Milosevic refused to retreat his troops behind a line determined by the Americans, which he had agreed to in March at Rambouillet. As a result NATO immediately used military force to intervene on behalf of the Kosovars. Without permission from the Security Council as it was required to do under charter law26, NATO bombed Belgrade and Pristina, and ousted Serbian rule from Kosovo. Israeli Foreign Minister Sharon issued a statement reacting to NATO’s decision that not only poised Israel in opposition to the United States, he articulated his allegiance with Serbia and Russia on the legal issue of NATO’s use of force without the permission of the Security Council. Israel called NATO’s use of force a “violation of sovereignty” and raised concerns for the implications it could have on Israel’s own contested territory. "It's wrong for Israel to provide legitimacy to this forceful sort of intervention which the NATO countries are deploying in an attempt to impose a solution on regional disputes, The moment Israel expresses support for the sort of model of action we're seeing in Kosovo, it's likely to be the next victim. Imagine that one day Arabs in Galilee demand that the region in which they live be recognized as an autonomous area, connected to the Palestinian Authority..."27 26 Charter of the United Nations Articles 2 (4) and 24 27Fisk,Robert. 2014 Ariel Sharon The Independent.
  • 12. 11 In March of 1999 Russia sponsored a resolution in the Security Council that demanded NATO cease all of its military actions in Yugoslavia. “Calling for the immediate cessation of the use of force against the Federal Republic of Yugoslavia and the urgent resumption of negotiations… Determining that the use of force by NATO against the Federal Republic of Yugoslavia constitutes a threat to international peace and security."28 Russia revealed in its statements that it was also afraid of the legal precedent NATO’s actions could imply for what is saw and sees as its own contested territories such as Chechnya and Ukraine; just as Israel feared for the West Bank and Gaza. If NATO could be permitted by the UN to intervene in support of a territory claiming to be autonomous in Europe, what would stop NATO from militarily intervening on behalf of Russia’s territories that claimed autonomy? The Security Council however rejected Russia resolution that condemned NATO on March 26th 1999, in a 3 to 12 vote (Russia, China and Namibia in support). There were no further measures taken by the UN to rein in NATO’s troops on the ground. America’s intervention was allowed to proceed with passive permission from the UN. This moment of legal ambiguity would be challenged again by Serbia when Kosovo declared its independence. After almost ten years of supervised autonomy under NATO institutions, and 4 cease fire agreements with Serbia, Kosovo declared Independence in February of 2008. Serbian Prime Minister Vojislav Kostunica issued a statement that called Kosovo a “False State” and the declaration “a legal violation of the sovereignty of Serbia.”29 Russia supported Serbia’s legal objections in an official statement from their Ministry of Foreign Affairs: “On February 17, Kosovo’s Provisional institutions of Self-Government declared a unilateral proclamation of independence of the province, thus violating the ‘Sovereignty 28 Security Council.1999. Press ReleaseSC/6659 3989th Meeting (AM) 26 March 1999 29 Reuters 17 Feb. 2008 Serbia Condemns Breakaway Kosovo as ‘False State. Print.
  • 13. 12 of the Republic of Serbia, the Charter of the United Nations, UNSCR 1244, the Principals of the Helsinki Final Act, Kosovo’s Constitutional Framework and the high-level Contact Group accords. Russia fully supports the reaction of the Serbian Leadership to the events in Kosovo and its demands to restore the territorial integrity of the country.” – Statement by Russia’s Ministry of Foreign Affairs on Kosovo 2/17/08 216-17-02-2008 In this statement, Russia refers to several points it considers at legal contention with Kosovo’s declaration. The first two points; the Sovereignty of the Republic of Serbia, and the Charter of the United Nations, are in reference to the moment of legal ambiguity when NATO initiated the use of force without the permission or condemnation of the Security Council. The next four points; UNSCR 1244, the Principals of the Helsinki Final Act, Kosovo’s Constitutional Framework and the high-level Contact Group accords, refer to the violations Serbia felt Kosovo made to the series of agreements they had made since the intervention in 1999. These 4 agreements were negotiated through third parties for the expressed purpose to find a “final status solution for Kosovo”. Serbia contended that an independent Kosovo was explicitly prohibited by the conditions of these cease fire agreements.30 Kosovo contended that the agreements did not prohibit them from declaring independence31. Kosovo also argued that a new state was a necessitated by their experience of genocide; rule from Belgrade would no longer be trusted or accepted by the people of Kosovo. Serbia called for an advisory opinion of the International Court of Justice (ICJ) to decide whether Kosovo was in violation of the agreements it had made with Serbia. The court ultimately ruled in favor of Kosovo. Serbia rejected the opinion, and does not recognize Kosovo’s autonomy to this day.32 30 International Courtof JusticeAdvisory Opinion of 22 July 2010: ‘Accordancewith International Lawof the Unilateral Declaration of Independence in Respect to Kosovo’. 31 Ibid. 32 Tanjug, Interfax.8 May 2015. Serbia Won’t Recognize Kosovo, President Reiterates.B92.net.
  • 14. 13 NATO’s use of force without the Security Council’s permission was never reviewed by the ICJ or any other UN entity. The ICJ has jurisdiction on issues between states, and cannot put a non- state actor, such as NATO (a multistate organization) on trial. At the same time the ICJ is also unable to try individuals for war crimes, only states and their representatives. There was a problem with establishing jurisdiction over Milosevic and others for their crimes in the former Yugoslavia. Yugoslavia was a state in crisis during the conflict, comprised of only a loose federation between Serbia and Montenegro, and Milosevic was not considered a “sufficient”33 head of state. Therefore the ICJ had no jurisdiction over Slobodan Milosevic. The International Criminal Tribunal for the Former Yugoslavia (ICTFY) was created by the Security Council in 1993 in order to try Milosevic and other individuals of serious violations of humanitarian law in the former Yugoslav territory since the war began in Bosnia and Croatia in 1991. This court eventually found Milosevic guilty of “crimes of genocide”, but not the crime of “genocide” as that is a crime that is defined by the genocide convention as one that is perpetrated only by a state. The tribunal was created out of a necessity to give the UN jurisdiction over the crimes of individuals rather than states. Therefore the focus was not on a state perpetrating genocide, as much as on an individual committing “crimes of genocide.” The ICTFY eventually became the basis for the creation of the International Criminal Court (ICC) in 2003. The ICC is the official permanent judicial branch that expresses jurisdiction over individuals who commit war crimes, while the ICJ remains the judicial branch that has jurisdiction over state claims. Legal institutions such as the ICC are the product of international law, because international law is not static, it is constantly amended to accommodate new issues. It is shaped by the thoughts and the actions of relevant actors that affirm or deny a consensus over a precedent. Actions that 33 Term addressed in the methodology
  • 15. 14 are deemed illegal at one time can sometimes go through a process of reconceptualization. For example NATO’s use of force in the former Yugoslavia was technically illegal because it did not have permission from the Security Council. However, there were no successful institutional actions penalizing NATO, therefore the intervention gained acceptance through the lack of will and ability to correct it. Later in 2003 NATO went into Iraq again without the Security Council’s permission, citing the intervention in Kosovo as an example of similar permissible use of force. Again, there were no actions taken by the UN to stop the troops on the ground in Iraq, despite the lack of Security Council approval or permission. The law is only a reflection of consensus, subject to time and political power. The US Secretary of State in 1999, Madeline Albright, was an advocate for the intervention in Kosovo despite the lack of permission from the Security Council. She felt that the moral imperative to intervene on behalf of the Albanians in Kosovo superseded the legal status quo. Interviewed about Kosovo in 2013, she admitted “What we did there was not legal, but it was right.”34 The Security Council did not officially condemn NATO’s actions (aside from Russia China and Namibia) and the de facto majority consensus at the time was to allow the military action in spite of this technicality because of the overwhelming evidence of mass executions of Albanians.35 This is how “legality” can be understood in relative terms. Law is an active process of “human meaning making”36 that is relative to the interpretation of political actors in power. If a group claims itself to be a state, that is one, and only one element of actually making that declaration meaningful. The declaration of a state is only viable if other states with the 34Higgins,Sean. 23 Sept. 2013. Madeline Albright on Kosovo: 'What we did there was not legal, but it was right' Washington Examiner. 35 The numbers of Albanianswho were mass executed is still growingas graveyards arestill beinguncovered years later see: 36 Johnson, Mark. 2002. Law Incarnate Brooklyn Law Review Vol. 67 Number 4. Pg 951
  • 16. 15 established political status of a state also recognize it. The ability to act like a state is even more important criteria to truly being a state in international law. Kosovo supports this declaration in part by arguing that it has been functioning as a “de facto state” both during and after its Serbian occupation. The reality of Serbian non-recognition is that it prohibits some of Kosovo’s vital functions as a state. For example, Serbia adjoins Kosovo’s northern border. This inhibits the freedom of movement of Kosovars because Serbia will not allow traffic originating in Kosovo over its air space. This inflates the cost of airfare beyond most of the populations grasp. The cost of importing and exporting goods is therefore also inflated which inhibits trade. Ground traffic is subject to arbitrary closure and occasional ethnic violence.37 However, Kosovo has the ability to enter into diplomatic relations with any state that recognizes its 2008 declaration. Therefore, the more countries that recognize Kosovo, the greater Kosovo’s “capacity to enter into relations with other states”. Currently, 111 states recognize Kosovo, including 23 members of the European Union (EU).38 Some states are higher on the list of priorities for Kosovo’s Ministry of Foreign Affairs to reach out to for recognition than others are. European states that have political influence in the EU are identified as high priorities39 because Kosovo’s entrance into the EU would give Kosovo security in the region. For example, it is a high priority for Kosovo to get the state recognition of Spain for two reasons. Spain has an influential position in the EU and would encourage other EU states to recognize Kosovo by its example. What is more important about Spain to Kosovo is the fact that Spain has the same reservations on the legal principals of Kosovo’s cessation from Serbia as 37 BBC News. 28 July 2010. Kosovo Serbia Border Post Set Alight. Web. 18 Aug. 2015. 38 Kosovothanksyou.com 39 Ministry of Foreign Affairs of Kosovo. 2010. Kosovo Calling
  • 17. 16 Russia and Israel have. In the same way Israel fears for the West Bank and Gaza, and Russia fears for Chechnya and Ukraine, Spain fears if the precedent of Kosovo were universally applied it would allow their ethnic Basque and Catalan regions to declare independence. Recognition from Spain is seen by Kosovo as a way to influence other non-recognizing states with the same fears. However Israel is the standard bearer for the type of victimization that resulted in the new state that Kosovo is trying to build. Achieving the recognition of Israel would mean recognition of the narrative of their national identity. I worked as a consultant in interfaith relations the Ministry of Foreign Affairs of the Republic of Kosovo (MFARK) under Deputy Foreign Minister Petrit Selimi in 2012-2013; our task was to ease tension between the majority Muslim-Albanian and the minority Serbian-Orthodox communities in light of the transition from international military control to the national police. In my capacity as a consultant through the British Council I helped orchestrate interfaith meetings between the local Muslim community leaders and the leaders of the Serbian Orthodox Church. 2012 was an important year for interfaith relations because NATO military forces had been protecting zones belonging to the Serbian Orthodox Church (SOC) that was surrounded by the Muslim community. The MFARK was in charge of overseeing the transition of security to local ethnic Albanian and Serbian police. It was a delicate change that was full of anxiety for both the Serb and Albanian communities. The MFARK held an international interfaith conference in May 2013 in one of the towns with the most important military zones around the Patriarchate monastery called “Peja” (Albanian) “Pec” (Serbian). This was the first conference organized by the state of Kosovo that the SOC participated in. Security forces were successfully transferred without incident, and Kosovo declared an end to supervised independence.40 In 40 BBC News Kosovo declared 'fully independent' 10 September 2012
  • 18. 17 regard to domestic goals, the conference in Peja/Pec was seen as a great success, the SOC attended and acknowledged the President and Prime Minister in their proper title such for the first time in a public forum. However, the international goals of the MFARK were not fully realized. One guest that was invited to the conference that the Ministry had high hopes for attending did not show up, and that was the Israeli ambassador to Serbia, Yossi Levi. Much of the planning of this conference and other events in the Ministries interfaith initiative was tailored towards courting the favor of the state of Israel. Specific Holocaust memorial events were planned for the purpose of the ambassadors attendance41 and—in an attempt to magnify Jewish- Albanian relations—I was sent by the deputy minister to interview the last five Jewish-Kosovar families, as well as the Albanian families that had saved Jews during the Holocaust, with the objective of publishing a pamphlet for an Israeli audience.42 The focus on establishing diplomatic relations with Israel was paramount to Kosovo’s Ministry of Foreign Affairs. Getting Israeli recognition was not just a chance to enter into relations with another state; it was seen as a symbolic affirmation of Kosovo’s very identity as a state which resulted from the experience of genocide. Israel is the standard bearer for a people who achieved political rights and protections after experiencing genocide. They achieved their political protections through the founding of a new state and therefore their recognition has a sort of political currency attached to it. Who would challenge Kosovo’s genocide narrative if it was legitimized by the people who survived what we base our definition of genocide in the law, the Holocaust. 41 Interfaith Kosovo. 2013.Kosovo Jewish Week 2013. 42 Garland,Geneva. Feb 1 2012. The Jewish Community of Kosovo. Interfaith Kosovo.
  • 19. 18 Genocide is a term that holds political power. It was invoked by NATO in order to legitimize the urgency for the intervention, and thereby justify the lack of consultation and permission from the Security Council.43 As opposed to “ethnic cleansing” or “war crimes” our understanding of “genocide” has particular implications that have been influenced by one example of genocide, the Holocaust. According to the Convention against Genocide of 1948, which was written as a direct response to the Holocaust, genocide is defined in article 2 as actions committed with “the intent to destroy, in whole or in part a national ethnical, racial, or religious group.” The burden of proof to establish ‘intent’ is informed by the experience of the Holocaust. The evidence in the Holocaust was blatant. State drawn plans of gas chambers and camps were uncovered in Nazi offices. The Nazi party was the clear elected state actor. This established clear intent of a state actor to destroy a group of people, at an extraordinary level of certainty. Other examples of genocides have not had such clear evidence of intent. This burden of proof has demonstrated to be difficult to near impossible to establish in cases such as Rwanda and Sudan for example. In Rwanda in 1994, the violence was instigated largely by the radio broadcasting system that called for the Hutus to pick up machetes and “kill the cockroaches”; referring to the Tutsis, which they did with shocking and gruesome efficacy. Though it is arguable the broadcasting system was acting on influence from authority, this did not satisfy the burden of proof for the international community to legally recognize the genocide. In the ongoing case of Sudan, horsemen tribes known as the Janjaweed rode down and killed Christian 43 CNN. 29 March 1999. NATO, British leaders allege 'genocide' in Kosovo.
  • 20. 19 families in South Sudan. It has been reported44 that the Janjaweed were paid to do this by the government however, clear evidence has been difficult to gather.45 There is a growing movement to establish a normative in the UN called ‘Responsibility to Protect’ (R2P) that would require states to intervene in the event that genocide is legally recognized. UN Secretary General Kofi Annan proposed in 2000 humanitarian intervention, though flawed, as the only option: “If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross systematic violations of human rights that offend every precept of our common humanity?” The doctrine of R2P considers state actors to have forfeited their right to sovereignty if they are committing genocide. This doctrine has been officially confirmed by the General Assembly as a principal to work towards during a general assembly world summit in 2005, and the Security Council passed resolution 1674 in 2006 that affirmed the doctrine as articulated by the general assembly in the 2005 summit. It is not however a universal legal standard yet. The Convention on the Prevention of Genocide was written on the basis of the Holocaust experience, and while the growing acceptance of R2P is advancing the political will to intervene in the event of genocide, the definition of genocide in the law has not evolved- it is still based on the understanding of a single genocide, the Holocaust. The Holocaust resulted in the creation of the state of Israel, however it is not the only moment of victimization in the identity of the Israeli nation. The nation is justified not just to protect the Jews from the victimization of the Holocaust, 44 Human Rights Watch “FailingDarfur; Entrenching Impunity Government Responsibility for International Crimes in Darfur IV. Ground Forces of Ethnic Cleansing”6:IV. 45 For more on the subjectof the holocaustas a legal basisfor the understandingof genocide see: Rosenberg, Sheri P. and Everita Silina.2013. Genocide By Attrition: Silent and Efficient Genocide Matters : ongoing issues and emerging perspectives / Edited by Joyce Apsel and Ernesto Verdeja. London ; New York : Routledge.
  • 21. 20 but from the perpetual victimization of the Jewish people throughout time since their exile from the land of Babylon. This is what distinguishes Israel from Kosovo. Though they both claim sovereignty via their victimization experiences, Kosovo’s victimization moment is one point in time, for Israel the victimization is perpetual. The victimization experience is the basis of what defines the population, territory and government of Kosovo. When, where and to whom the victimization happens in the national narrative defines the when where and whom which comprise the Nation. For an example in contrast, the United States’ narrative is based on a “discovery experience”46 that defines the territory, population and government of the state, a completely different sovereignty contract.47 Steven Newcomb’s work in cognitive legal theory explores the understanding of the ‘discovery experience’ as applied in American property law. His research is the basis of my methodological approach to the understanding of sovereignty in this study. Through my research using Newcomb’s method in cognitive legal theory, I will demonstrate that in the way Newcomb proposes America is ‘discovery based’ sovereignty, Israel and Kosovo are ‘victim based sovereignties’. However, while Kosovo is also a victim based sovereignty it is not equal to that of the Israeli victim experience in terms of duration, therefore, the precedent of Kosovo’s independence due to one incident of victimization in history threatens Israel’s sovereignty, over territory claimed by Palestinians who claim to be victimized. If the standards of recognition were met by one moment in time of victimization, then Israel’s violence against the Palestinians would give them legal precedent to secede from under their military occupation. 46 Newcomb, Steven T. 2008. Pagansin the Promised Land: Decoding the Doctrine of Christian Discovery. Golden, Colo: FulcrumPub. Print. 47 This will beexplained in the methodology section of this paper in the work of Steven Newcomb.
  • 22. 21 The state of Kosovo was a result of military force, so was the state of Israel. In fact state-making is intimately tied to violence. A state’s status is only as strong as the international community’s acceptance of the violence that created the conditions for it. This is the social contract that is created between states. In Israel conflict broke out when the British Mandate was dissolved and the Security Council passed resolution 149 in December 1948, which demanded the newly established Israeli government to allow all refugees the right to return to their property, or compensation for their lost property. In 1967 after the six-day war, the Security Council passed resolution 242 that reconfirms 149, and demands the same right of return for the refugees of that war. However, Israel refused, and refuses to this day, to facilitate the demands of resolutions 149 and 242, and the UN has neither the capacity nor the consensus amassed to take any tangible actions against that. On November 7, 1956 when Israel invaded the Egyptian Desert, Prime Minister Ben-Gurion declared in the Knesset that, since the Sinai was historically a part of Israel, Israel could not properly be said to have invaded Egypt and that the 1949 armistice agreements and the boundaries they defined were "dead and buried and will never be resurrected."48 The Israel that Ben-Gurion was referring to was the one of pre-modern times, the one he saw himself building in the modern project. The importance of this part of national identity is not just qualitative, but quantitative as it is a projection that redefines both the territory of the state and the population. Ben-Gurion was establishing on the ground the identity of Israel that had been born out of the ideas of the Zionist movement in Europe in the nineteenth century. Zionism, most basically defined, is the idea of creating a new state for the Jewish people. Israel refers to Theodor Herzl as the father of the Zionist movement. He created the Jewish National Fund, which has an 48 Ball,George W. 1980. The Coming Crisis in Israeli-American Relations. Foreign Affairs. Web. 13 July 2015.
  • 23. 22 official covenant with the Israeli government, and his book “the Jewish State” is the manifesto of the principles in the Basic Laws of the state, which function as the constitution of Israel as there is none to date.49 Herzl refers the Jewish people as “a nation bound together by a common threat”.50 It is this common threat that identifies the population of the state. The need for a physical space for that population to be protected from the perpetual threat, Herzl said, was the next step. “The people are the subjective, the land the objective foundation of the state, and the subjective basis is the more important of the two”.51 Herzl wrote that the only solution to this problem was not an avocation of rights in the national policies of European states. He wrote that the only protection that would be able to combat the perpetual victimization of the Jews through history could be accomplished by the institution of a state governed by that group. For that state to be established, a physical place needed to be found to facilitate it. Herzl wrote that the identity of the victimized people as the Jewish people was the determining factor of where that land should be found- the site of the ancient nation of Israel, what was then known as Palestine. The Arabs that lived in Palestine became aware of Zionism through the early settlements of Jewish kibitzes in the nineteenth century. The national aspirations of the movement were not fully understood en mass by the Arabs in Palestine until the fall of the Ottoman Empire. The Hashemites of Saudi Arabia (now the ruling family in Jordan) had collaborated with the British to throw off Ottoman rule from the region, in exchange from the British for the guarantee of a Pan-Arab state. The Ottomans were seen as foreign rulers in the Levantine region, and the Arabs were fighting for self-determination. The Arab and British coalition destroyed the axis supply 49 “Basic Laws – Introduction”2003 http://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm 50 Herzl, Theodor. The Jewish State. First.United States of America: White Dog Publishing,2010.Print. 51 Ibid.
  • 24. 23 chain by sabotaging their railroad system playing a significant part in winning the First World War. After the war was won by the allies, in 1917 the British entered into the White Paper agreement with the Zionist congress which promised much of the region, including what was known as Palestine, to the creation of a future Jewish state. The League of Arab States led by the Hashemites made their opposition to Jewish national aspirations known.52 Palestine, for the time being became a British mandate under the League of Nations as did Jordan, given to the Hashemites as an appeasement,53 and the entire Middle East to the mandate system of the British and French. During the mandate period, Jewish immigration to Israel increased through British and French cooperation, and by 1948 the demographics had changed in Palestine with a sizable Jewish population, which was however still a minority owning about 6 percent of the land.54 The idea of a separate Arab and Jewish state was not accepted by the League of Arab States, or any Palestinian representation until the 1993 Oslo Accords—becoming known popularly as the “two state solution”. The two state solution was also not accepted by the first president of Israel David Ben-Gurion. In 1947 Israeli President Ben-Gurion testified to the United Nations Special Committee on Palestine against the idea of partitioning an Arab Palestine next to a Jewish Israel because he felt that all of the British mandate should be given to sole Jewish leadership until the demographic 52 Fromkin, David.2009.A Peace to End All Peace : the fall of the Ottoman Empire and the creation of the modern Middle East 2nd Holt pbk. New York : H. Holt and Co. 53 Ibid. 54 Abunimah, Ali.2006. One Country: A Bold Proposal to End the Israeli-Palestinian Impasse. New York, N.Y.: Henry Holt and Company, 2006.sourcingSami Hadawi,VillageStatistics1970
  • 25. 24 advantage was in the favor of the Jewish population.55 Ben-Gurion also did not want to create an official state constitution until this advantage was established. In a biography written by his protégé and future Israeli president, Shimon Perez, Perez wrote that Ben-Gurion strategically avoided stating the desired ethnic nature of the state in a constitution in blatant terms. Menachem Begin, the founder of the Likud political party and the Prime Minister between 1977-1983, opposed him. Begin wanted a constitution that explicitly identified Jewish ethnicity as a requirement for full citizenship rights. Instead, the Basic Law of Israel was adopted as a and refers generally to equal rights to all people and functions as a constitution in draft form.56 Today, the Current Likud party leader and Third Term Prime Minister, Benjamin Netanyahu is currently advancing the same constitutional doctrine that the founder of the Likud Party pushed for in 1948. Netanyahu’s Basic Law proposal is currently under review of the Knesset, and it has been the most divisive element in the recent elections. The proposed amendment would identify Israel as not as a ‘Jewish State’ but as a ‘State for the Jews.’ The proposal would get rid of any ambiguity on the prioritization of resources of the state for the Jews above all others. While this has been the practice of Israel since its founding, the legal mechanisms for land seizure are currently more nuanced. Jewish immigration to formerly owned Palestinian land has been facilitated by a covenant between the Ministry of the Treasury and the Jewish National Fund. This covenant states that the Jewish National Fund has discretionary rights to decide who is awarded a lease of land (97% of the land is owned by the State of Israel). The Jewish National Fund blatantly states that it 55 Official Records of the Second Session of the General Assembly Supplement No. 11 on the United Nations Special Committee on Palestinevol III annex A Oral Evidence Presented at Public Meeting Lake Success 4 July,1947 http://unispal.un.org/UNISPAL.NSF/0/7735B7DC144807B985256E8B006F4A71 56 “Basic Laws – Introduction”2003 http://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm
  • 26. 25 prioritizes Jewish applicants over all others in order to promote Jewish migration.57 This covenant is legislated in the Israeli law as the Land Administration Act. It has been argued by the Adalah Legal Center for Arab Minority Rights in Israel that this prioritization is unconstitutional according to the Basic Law which guarantees equal rights to all persons, however the government has defended itself by stating in this case that the Jewish National Fund is a private organization in cooperation with the government and is therefore should not held to the standard of the basic law.58 This case is currently pending. Netanyahu’s amendment to the basic law however would make the separation argument superfluous because it would officially make the priority of Jewish rights over other ethnicities constitutionally binding. The support of the law within Israel was shown to be just sufficient enough to re-elect Netanyahu back for a third term in office in 2015 by a narrow margin, as it was a major platform he ran on. The election also identified a population in Israel that is not only against articulating ethnic supremacy in the constitution but also they are in support of reverse the ethnic discrimination that has been legalized by other judicial processes such as the Land Administration Act.59 It is important to distinguish that the narratives I am examining are the ones that have been communicated by the heads of state in these case studies, and may or may not be an accurate reflection of all of the populations feelings on nationalism. To be a citizen of Israel, you do not need to be personally victimized, you merely need to be ethnically part of the group that was victimized in order to have a right to property and political rights from the state.60 In contrast, to be a part of the new state of Kosovo you have to have been 57 Jewish National Fund- History.Accessed August 18, 2015.http://www.jnf.org/about-jnf/history/. 58 Adalah.ChallengingILA Policy of Tenders Open Only to Jews for Jewish National Fund Lands . 59 Ibid. 60 Accordingto the rightof return law5710-1950:1. Every Jew has the rightto come to this country as an oleh**. 2. (a) Aliyah shall beby oleh's visa.
  • 27. 26 personally victimized by the war in 1990’s to get your property back, or prove you were a resident at the time and place of the war in the 1990’s. The Kosovo Property Agency (KPA) facilitates the right of return for both Serb and Albanian families on a case by case basis. In contrast, in Israel, Netanyahu states that The Basic Law Proposal would be the death of Palestinians’ right to return under resolutions 149 and 242. "It's time the Palestinians stop denying history. Just as Israel is prepared to recognize a Palestinian state, the Palestinians must be prepared to recognize a Jewish state, President Abbas: recognize the Jewish state, and in doing so, you would be telling your people to abandon the fantasy of flooding Israel with refugees,"61 As defined by Israel, an Israeli national is a person who is a member of the ethnic group which was victimized. i.e. a Jew and their decedents, as defined by Israel and the “Law of Return”. A Palestinian National, as defined by Israel, has the collective right to a land that has been specified by Israel, and not the territory where their property rights originate on a case by case basis. Palestinian rights are not restored on an individual basis such as minority rights are in Kosovo, and this is a fundamental difference in these nations understanding of their sovereignty. Palestinian political thought is contentious over the idea of a collective realization of rights, because it grants a collective remedy – a separate state, but in a territory where not all of them could possibly realize their individual rights. The idea of the collective right is firmly ingrained in the Israeli national character. The partition of a separate Arab state was not an official Palestinian stance until Yasser Arafat accepted the Oslo Accords in 1993. Collective rights and collective guilt/innocence are central to the concept of Israeli sovereignty, and it is projected on the Palestinians. It is not for Kosovo or the United States; however, it is for Serbia and Russia. 61 RT English.March,5th 2014. End to Negotiations?’ Netanyahu’s Speech Sparks Furious Reaction from Palestinians.
  • 28. 27 “Accusing me you are accusing my people.”62 Said Slobodan Milosevic at the beginning of his trial on crimes he committed in Kosovo. For Serbian president Milosevic, guilt and innocence could be shared by all or none because the actions in question were done in the interest of the collective. For Serbia the nation and its citizens are, like Israel, defined by the membership to an ethnic group that also experiences perpetual victimization (beginning in 1219, as we shall see below). The constitution of the contemporary Republic of Serbia was adopted in 2006. Article 1 of the Serbian Constitution states that the “Republic of Serbia is a state of Serbian people and all citizens who live in it…” The state is defined in terms of the presence of ethnic Serbs, and the peoples who live around them. It is the ethnic Serb presence that establishes sovereignty. Where ever there is a Serb that is where the Serbian military will claim the territory necessary to provide that protection. Milosevic came to Kosovo in April 24 1987 when it was still a province under the federal administration of Yugoslavia, the capital of which was also the capital of Serbia, Belgrade. Milosevic, was a leader in the Communist party at the time, and went against the party rules by meeting with leaders from the Serbian National Party in Kosovo. He held a public forum and televised dozens of Serbs testimony that they had been discriminated against by their Albanian neighbors causing a “Serb exodus from Kosovo.” Milosevic infamously told them that “you will never be beaten again”63. The members of local Kosovo government, who were elected in the primarily ethnic Albanian province, were primarily ethnic Albanians. Milosevic called them “a 62 Vaksberg, Tatiana.2002. Milosevic Between Crime and Punishment. East European Constitutional Review 11.3 pg. 76 Print. 63 Percy, Norma. 1995.The Death Of Yugoslavia. BBC
  • 29. 28 truly Nazi Party”.64 He began restricting Albanians from holding public office and other public professions in the education medical and legal fields.65 After his visit to Kosovo, the Communist party voted Milosevic into the presidency, ousting the sitting president Ivan Stambolic, and rallied the country around the issue of Serbs in Kosovo to justify taking greater control over Yugoslavia were he felt Serbs were also being persecuted by the Croatians and Bosnians. Slovenia seceded from Yugoslavia in 1991, Croatia in 1992 and all followed but Montenegro who chose to stay united Serbia in a new Yugoslav federation. Milosevic reacted by proposing new standards of what he thought ‘self-determination’ to mean in Yugoslavia, the right of every ethnicity to live under the rule of a “fatherland” or an ethnic state. “Let’s re-write the constitution and extend the right to secede, not just to republic but to all ethnic groups. Serbs had the right to make the same choice. equal treatment, human rights, no discrimination. That’s why we supported the Serbs outside of Serbia.”66 In this interview, Milosevic distinguishes the Serbs who lived outside of Serbia’s borders to have the right to individually secede from the state they were in and remain a part of his Serbia. The problem was that the leaders of the other countries that had Serbs were not willing to give up there sovereign territory to Serbia, just because there were ethnic Serbs. Milosevic ordered the Yugoslavian forces to invade Croatia and Bosnia. Unfortunately in Bosnia, after the peace process in Dayton Ohio was over, territory was divided into sections of supervised autonomy, of which Serbia has administrative power in the north and southeast of the country known as the Republika of Srpska, and Milosevic got bits and pieces of what he wanted. 64 Vaksberg, pg 76. 65 Human Rights Watch 1999 66 Percy at 32:40
  • 30. 29 When Kosovo declared independence from Serbia in 2008 the Serbian government was shocked, they were hoping for a Dayton like result in Kosovo that gave them more territory with autonomous status.67 On Feb 17 2008 Serbian Prime Minister Vojislav Kostunica said of Kosovo: “The Serb people will never stop fighting for their freedom, As long as the Serb people exist, Kosovo will be Serbia."68 The Serbian nationalism’s narrative of perpetual victimization begins, like Israel, in pre-modern times with the founding of the Serbian Orthodox Church (SOC) in Kosovo in 1219. The importance of this story being the base of the national narrative is that it includes every person of ethnic Serbian origin, as Israel’s narrative encompasses every person of ethnic Jewish origin. The Serbian narrative is told in a way that excludes other ethnic persons from participation in Serbian groups, when in fact there is historical evidence to the contrary. For example, the Serbian epic poem tells the tale of the battle of 1389 where the Ottoman Turkish forces took over the field of blackbirds in the capital of Kosovo Pristina. The poem was written during the ethnic national movement of the 19th century, and revived by Milosevic in 1990, when he paraded King Lazzarz’s coffin on a symbolic tour all around Yugoslavia69. The epic poem told a tale of pure ethnic Serbian forces overtaken by pure Turkish and Albanian forces in league with each other. Though, evidence shows that the forces were not divided so clearly on ethnic lines. There was a feudal system at the time in Kosovo Albanians and Serbs lived on manors together and they often fought in defense of their manor together and were therefore, on both sides of the conflict with the Turks. 67 Accordingto the peace negotiations,Serbian majority provinces in Kosovo havethe right to participatein Serbia’s elections,and other political and monetary benefits from Serbia. 68 Reuters. 17 Feb. 2008 Serbia Condemns Breakaway Kosovo as ‘False State.’ 69 Judah, Tim. 1997. The Serbs: History Myth and the Destruction of Yugoslavia 200. Yale University Press.Pg 164
  • 31. 30 The place of victimization is a legal claim to property that the Serbian Orthodox Church can exercise within Kosovo according to the current peace deal the Ahtisaari Plan. Wherever the Serbian Orthodox Church claims is a place of Martyrdom they can legally exercise property ownership and are entitled to military defense in what’s known as “Special Protective Zones”.70 Serbia’s narrative of victimization cannot be summarized by one confrontation, nor is the Holocaust the whole of victimization in the Israeli national narrative. The war in the 1990’s is the only moment of trauma in the modern national narrative as told by the state institutions of Kosovo as they stand. The NATO backed majority political parties in Kosovo address other incidences of victimization of Albanians under the Ottoman Empire by characterizing them as egalitarian movements against foreign Turkish rule. The Albanian Nationalist opposition party known as Vetëvendosje cites a longer narrative of Albanian victimization in the region and they call for the formation of a greater Albania because of it. The party name “Vetëvendosje” is Albanian for “self-determination”, and a major point on their policy calls for a referendum vote that would ask the Albanian people if they want Kosovo to join Albania. The majority political parties known as the PDK and the LDK condemn any option of a greater Albania on the premise of rejecting ethnic homogeneity.71 According to the state leadership in Kosovo today, a Kosovo national is a person that was victimized in the time and place of the 1999 war. It is an assessment that is facilitated on an individual case by case basis by the KPA. The KPA administers the return of property to both Albanian and Serb populations. The facilitation of political rights is individually based in Kosovo and therefore it is 70 Law on Special protectivezones 2008/03-L039 http://www.kuvendikosoves.org/?cid=2,191,248 71 Kostovicova,Denisa.2005. Kosovo: the Politics of Identity and Space Routledge.
  • 32. 31 opposed to the Israeli and Serbian idea of the collective realization of rights, and collective ideas of guilt and innocence. Kosovo’s Prime Minister Hashim Thaci, the leader of the PDK party, condemned the idea of collective guilt and innocence at the Holocaust Memorial Event in Pristina May 23rd 2013: “Whilst we remember the victims of the conflict, to achieve true reconciliation we must never forget the perpetrators in the process. Crimes occur in any war, but this does not mean that everyone is culpable. To insist that everyone is equally guilty is as great a crime as forgetting the victims and reasons why they were victimized.”72 Guilt and innocence cannot exist in the collective form for Kosovo. The UN is adjudicating war crimes perpetrated by both Serbs and Albanians. There was no experience of this in Israel after the conflict in 1948 that caused massive displacement, the only crimes of war that were being adjudicated during the time of Israeli independence were those of the Axis powers in Nuremburg and Tokyo. Therefore, Israel supports Russia in its campaign in the Ukraine because the campaign is an expression of the same kind of sovereignty claim uttered by Israel and Serbia in their victimization narrative. Ukraine is considered to be the spiritual heritage of the Russian people, which encompasses the entire ethnic group, thus the Russian ethnic minority in Ukraine are the subjects of the Russian state. “Millions of Russians and Russian-speaking people live in Ukraine and will continue to do so. Russia will always defend their interests using political, diplomatic and legal means. But it should be above all in Ukraine’s own interest to ensure that these people’s rights and interests are fully protected. This is the guarantee of Ukraine’s state stability and territorial integrity.73 72 Interfaith Kosovo. 2013. Prime Minister Thaçi's Speech - Holocaust Commemoration Event. 73 The Washington Post. 18 Mar. 2014. Transcript: Putin Says Russia Will Protect the Rights of Russians Abroad. Web. 13 Aug. 2015.
  • 33. 32 Putin includes a veiled threat to Ukraine that is an exploitation of the doctrine of R2P in this statement. If in fact Ukraine is suppressing Russian rights, according to R2P they would be compromising their sovereign rights. The point of contention, who decides if Ukraine is suppressive or not? Who decides if Serbia was repressive or not? Or Israel, or anyone for that matter? The Security Council is supposed to decide according to the structure of the UN. However in all of these cases the Security Council’s decisions have been defied as well as honored. Israel will base its decisions on that which confirms its sovereign identity, over all other considerations. Israel may have broken relations with the USSR in 1957 over the fact that the Soviet Union sold arms to its enemy Egypt. In 1999 when Sharon reestablished relations Russia was still arming its enemies, and they continue to this day74. However, Israel has a higher priority to maintain what it sees as the legal legitimacy of its sovereignty and the old eastern bloc is increasingly defending the same theoretical principles that logic is built on. The American notion of sovereignty is qualitatively different and this informs the direction of all parties foreign policy. Israel will continue to do as we saw in its expression of support for Russia in Ukraine. Methodology Steven Newcomb’s book Pagans in the Promised Land is a model use of cognitive legal theory as applied to American sovereignty law. The methodology in this study is largely based off of his example as applied to the case law of the nations discussed. Newcomb showed in his book that 74 Reuters. 18 Aug 2015.“Iran Plans to Sign Contract for Russian S-300 Missiles nextWeek.” Web. Accessed 18 Aug. 2015.
  • 34. 33 American sovereignty is based on a “doctrine of discovery”. I will use this same methodology of cognitive legal theory to show how the Israeli concept of sovereignty, is based on a “doctrine of victimization”. Newcomb showed in his case law that the specific requirements of the definition of “discovery” created a “radical category” of sovereignty. I will show in Israeli case law that it is also a “radical category” of sovereignty that I will call “Victim Based Sovereignty”. Israel’s declaration of independence has been accepted by the consensus of the general assembly in 1948 and it has become the “prototype model” of which the Russian Federation (1993), Serbia (2006), and Kosovo’s (2008) have based their sovereignty concepts on as evident in their constitutional law. The United States and Israel do not share a common understanding of sovereignty, though, Israel and Russia do, which explains their growing mutual support. Israel and Kosovo differ in their definition of “victimization”, which explains Israel’s lack of support for Kosovo even as “victim based sovereignty”. These differences can be seen in their respective constitutions, domestic case law on property rights and return and discussion on the viability of their independence in advisory opinions from the International Court of Justice (ICJ) (I will expand on these in the analysis section below). Cognitive legal theory is founded on the premise that law is an institution built on human thought, and that thought process is a comparative based process of categorization. Newcomb quotes Steven Winter, the founding scholar of cognitive legal theory75 on the second point; “categorization is more than classification according to common properties… categorization is the very process of reasoning itself.76 75 Winter, Steven L. 2003.A Clearing in the Forest: Law, Life, and Mind. University of Chicago Press,Print. 76 Winter: 2003, 70
  • 35. 34 Winter observes that when a ‘target domain’ (what needs to be understood) is conceptualized in terms of a ‘source domain’ (what is already understood) a metaphor is formed. More plainly, we understand a new concept, by comparing it to concepts that we have already accepted, and metaphor is the bridge between the two. The metaphor determines types of categories available for comparison. Newcomb and Winter argue that the classic rationalist theory of categorization is the staple of modern legal reasoning. Winter describes the aim of rationalist categorization as “fact patterns that are included under the same general category are therefore covered under the same legal rule.”77 The classic train of logic that is taught to every law student is expressed as: “All things that share property P are in the category; all things that do not have property P are not in that category. All things are assessed by their necessary and sufficient conditions which constitute P within the element; to be covered by the according category of law.” The ability to decipher the necessary and sufficient terms according to this rule is one of the main assessments of prospective law school students taking the Law School Admissions Test, (commonly known as the LSAT). “Discovery” and “victimization” are not conditions that are necessarily produced by the legal requirements of sovereignty according to the requirements for UN membership to the UN as defined by Charter 4. However these elements are communicated by the state officials to be essential to justify their very existence. Newcomb and Winter show that when a concept is dependent on an element that is not necessarily produced by the requirements of the law, “a radical category” is formed. A radical category consists of a central model or case with various extensions that, though related to the 77 Ibid.
  • 36. 35 central case in some fashion, nevertheless cannot be generated by rule. So if genocide is the category of crime, the holocaust is a radical category of the crime. While they both have the central conditions of P= “an attempt to destroy at whole of in part an ethnic or religious group by a state actor” as the law requires, the holocaust has a requirement of the standard of proof to attribute intention to a state actor. The conditions of genocide by itself cannot be reproduced by the general rule the same standard of proof that was found in the Holocaust. However, other genocides have been expected to produce the same standard of proof as the holocaust is a radical category of genocide that has influenced the minds that write the law.78 The requirement of clear attribution to a state actor was the backbone of both Milosevic’s and Adolf Eichmann’s self- defense on their trials for crimes of genocide in the Balkans and the in Europe. Newcomb showed that the U.S. definition of “sovereignty” was founded on an experience of discovery as articulated in the case Johnson v. McIntosh 1823. This case was cited by the US Attorney General in testimony to the UN as being the bases of its interpretation of treaty law on sovereignty as of 2001. “The U.S. Supreme Court decision Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 574 (1823), which held that as a result of European discovery, the Native Americans had a right to occupancy and possession, but that tribal rights to complete sovereignty were necessarily diminished by the principle that discovery gave exclusive title to those who made it. As a result, the tribes' ability to sell or convey the property was subject to the approval of the sovereign.” (Reply of the United States Assistant Attorney General Ralph Boyd and the Assistant Secretary of State for the Bureau of Democracy, Human Rights, and Labor Lorne Craner to Questions from the UN Committee on the Elimination of Racial Discrimination Geneva, Switzerland;August 6, 200179 ) In this 2001 statement, Boyd and Craner explain how the U.S understands the concept of its sovereign domain over Native lands by citing a case that was arbitrated in 1823. It is the idea that 78 See background and Rosenberg and Selina 79 http://2001-2009.state.gov/g/drl/rls/rm/2001/4486.htm
  • 37. 36 sovereignty is granted to a person who has an experience of “discovery” of a piece of land. What is not explicated in this statement is that the case cited Johnson v. McIntosh defines ‘discovery’ as “an encounter of a citizen of a Christian nation with of a land unknown by Christian civilization.” And is therefore it is a definition of sovereignty that is exclusively available to the Christian person. Non-christen inhabitants on that land are assumed to have rights of possession and occupation but not sovereignty as Byod and Craner stated: “tribal rights to complete sovereignty were necessarily diminished by the principle that discovery gave exclusive title to those who made it” however a necessary constitute a “discovery” is that it needs to be made by a Christian person. According to the opinion on Johnson, sovereignty must necessarily be an action of a Christian, so if not done by a sovereign of a Christian nation, then no discovery has occurred. So the understanding of “discovery” is predicated on the belief that the encounter with the Christian world is the moment of inception and that non-Christian inhabitants cannot express more than rights of occupation or possession, because Christianity is a necessary component in the United States concept of sovereignty. Newcomb finds that the metaphor of the “chosen people in the promised land” expressed in U.S. Indian law creates the radical category in the U.S. To build on this I assert that the metaphor is is responsible for the prohibition to question the actions of the so called “founding fathers” which creates a dualistic cognitive system for the understanding of human actions that is limited to the binary of good and evil and human and unhuman that is central to the understanding of genocide in the cases of this study. This prohibition exists in spite of clear evidence of “the founding fathers” actions that amount to what we now understand as genocide and ethnic cleansing. It is incomprehensible to the US citizen that accepts this metaphoric model to conceive of these patriarchs to have committed genocide because genocide is understood as something that is
  • 38. 37 perpetrated by “un-humans”80 as based in the example of the Nazi of the Holocaust. I make this point concerning Newcomb’s evidence in order to illustrate a similar dynamic in the Israeli mind which is central to their sovereignty. Because Israel’s concept of sovereignty defines victimization as mutually exclusive with perpetration, it is incomprehensible for someone holding this logical model to consider members of the victim group as at this same time capable of perpetration- creating a dangerous logical frame that alienates any pathway of understanding evil actions committed by humans because those who commit those actions are categorized as not-human. The engagement of the Christian metaphor creates a radical judicial category known as “originalism” which presupposes there is unified signal intent of the founding fathers in the cannon texts of the Nation. Originalist theorists, such as Supreme Court Justice Scalia argue that these documents should be interpreted for the purpose of deciphering the intent of the men who originally wrote them. “All these questions (abortion, homosexual sodomy or assisted suicide and the death penalty) pose enormous difficulty for non-originalist’s, who must agonize over what the modern constitution out to mean in regard to each of these subjects, and then agonize over the very same questions five or 10 years later, because times change…lawyers are not trained to be moral philosophers history is a rock solid science compared with moral philosophy.”81 Justices such as Scalia and other originalists understand the founding fathers production of documents as an expression of a unified intent because their group work was unified by divine inspiration. They take for granted that history as it is told in the narrative of the individuals who had the privileged position to write it as being a “rock solid” accounting of events and their 80 This definition is obviously notimplyingthatNazismshould be devoid of responsibility or agency for its crimes before and during WWII. 81 University of Virginia School of Law. 2015.Scalia Defends Originalismas BestMethodology for Judging Law..
  • 39. 38 implications. This belief system is facilitated by the Christian prototype model that categorizes “prophets” as the source domain and the “founding fathers” as the target domain under the common property of being the “writers of the law” in the prototype metaphor “The Pagans in the Promised Land”. The stylization effects of the prototype model implies that the founding fathers, being divinely inspired, are therefore irrefutable. The moral hazard of this assumption is that the human deviance of the men that wrote the founding documents is unexamined and therefore and uncorrected. For example, forced removal which is now recognized a central component of genocide was designed by our third president, Thomas Jefferson. Jefferson describes how that loan market was manipulated by the colonists to force Native Americans to sell their occupation rights in exchange for the debt they incurred. “To promote the disposition to exchange lands we shall push our trading houses and be glad to see the good and influential individuals among them run in debt because we observe that when these debts get beyond what individuals can pay they are willing to lop them off by the cession of lands. At our trading houses, too, we mean to sell so low as to merely to repay us cost and charges so as neither to lessen nor enlarge our capital. This is what private traders cannot do, for they must gain; they will consequently retire from the competition, and we shall thus get clear of this pest without giving offense or umbrage to the Indians, and they will in time either incorporate with us as citizens of the United States, or remove beyond the Mississippi. The former is certainly the termination of their history most happy for themselves; but, in the whole course of this, it is essential to cultivate their love. As to their fear, we presume that our strength and their weakness is now so visible that they must see we have only to shut our hand to crush them, and that all our liberalities to them proceed from motivations of pure humanity only.” –Letter from President Thomas Jefferson to William Henry Harrison February 27, 180382 In this letter from the third President of the U.S. Thomas Jefferson to the future ninth president William Henry Harrison, then governor of the Indiana Territory in 1803, Jefferson discloses to Harrison a strategy to accomplish a precondition for genocide; forced removal, under the pretense of “liberal provision” and “humanity”. Jefferson clearly states that the bottom line of 82 Prucha,Francis Paul. Documents of United States Indian Policy. U of Nebraska Press,2000.Print. Pg. 22
  • 40. 39 this policy for the Natives is to assimilate or be removed. President Andrew Jackson passed the Indian Removal Act in 1830, which continued the legal logic that had Jefferson espoused. In 1862, the Governor of Minnesota (formerly of the Indiana Territory) Alexander Ramsey, dropped all pretense of humanity and liberalization and used the term “extermination”: "Our course then is plain. The Sioux Indians of Minnesota must be exterminated or driven forever beyond the borders of the State. . . .They must be regarded and treated as outlaws. If any shall escape extinction, the wretched remnant must be driven beyond our borders and our frontier garrisoned with a force sufficient to forever prevent their return."83 The men who orchestrated what we now understand as genocide and ethnic cleansing are the same men that those from the originalist school of legal thinking conceptualize as conduits of sacred work. The originalist concept of justice is founded on a “chosen people in the holy land” metaphor which categorizes the founding fathers as prophets. Prophets are the writers of the law in the “chosen people in the promised land” metaphor Therefore, it is incomprehensible for a justice or legislator that practices original intent interpretation of the law to be able to critically question the purpose of the founding fathers because they are cognitively categorized as one in the same as prophets in the base metaphor. This is why the “Discovery Doctrine” though morally repugnant, remains the precedent on property ownership to this day. For example, the legal doctrine of “Separate is Equal” as established by Plessy v. Ferguson in 1896 was overturned via Brown v Board of Education, in 1954. The doctrine of “Christian Discovery” as found in Johnson v. McIntosh 1823 has never been explicitly challenged in the judicial system by such a case as Brown, and is still sited by the US as an exemplary precedent to this day. 83 Minnesota Historical Society.1908. Minnesota Historical Society Collections. Print.Pg. 43
  • 41. 40 As Newcomb’s methodology examines the unchallenged precedent which rules American property law, I will focus on the legal precedents that define Israeli property law in comparison with that of Kosovo’s, Serbia’s, and Israel’s new patron state, Russia. The entitlement to land on grounds of membership to a victim group is founded in the international legal system by Israel’s declaration of sovereignty in 1948, and though Kosovo claims a similar entitlement as a new state forged out of a genocidal experience. I will demonstrate through the legal precedent that the concept of property law is fundamentally different between Kosovo and Israel, and further, Israel’s concept is mirrored more accurately by Serbia and Russia explaining their departure from relations with the United States. Analysis Israel’s declaration of independence in 1948 became the “prototype model” of victim based sovereignty, upon which Kosovo based its claim to statehood in 2008. They are both claims to “victim based sovereignty” in that statehood became an impetus as it was seen as the only alternative to victimization. Their respective constitutions, domestic case law on property rights, and war crimes trials, prove this assertion. The discussions in these spaces hints to the root of Israel’s common ground with Kosovo in terms of victim based sovereignty, as well as their ideological departure from each other that has steered Israel closer to Serbia and Russia in recent times. The evidence provided below shows that while Israel and Kosovo began their claims based in victimization, they see their victimization, and therefore their statehood, in different terms. Before it made its official declaration of independence Israel requested an advisory opinion from the International Court of Justice (ICJ) on the matter. Israel asked, in essence, if it could
  • 42. 41 reference its recent experience of victimization as a supporting argument for its independence to the General Assembly, and secondly, if it was dependent on the conditions of an independent state of Palestine to declare its independence. These two questions were put into abstract terms of general theoretical conditions and avoided addressing the conditions of the case at hand. “Is a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph I of the said Article? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State?” The court found the question to be outside its jurisdiction due to its political nature. Because Israel restricted its question to the abstract realm, it avoided an opinion from the court which could potentially explicitly restrict the specific actions that accompanied its eventual declaration in 1948, including the restriction of Palestinians right to return to their property. Israel’s eventual declaration of independence in 1948 was predicated on the assertion that no other alternative could be arrived at peacefully due to its experience of victimization and therefore, as it had posed to the ICJ, its political situation was the main support for its statehood.. “The catastrophe which recently befell the Jewish people- the massacre of millions of Jews in Europe – was another clear demonstration of the urgency of solving the problem of its homelessness by re-establishing in Eretz-Isreal the Jewish State, Which would open the gates of the homeland wide to every Jew and confer upon the Jewish people the status of a fully privileged member of the comity of nations.” When Kosovo made its own declaration of independence in 2008 it also used language that distinguished itself as a special case arising from its experience of victimization and further that it had also exhausted all other alternatives other than independence in its negotiations with Serbia.
  • 43. 42 “Observing that Kosovo is a special case arising from Yugoslavia’s non-consensual breakup and is not a precedent for any other situation. Recalling the years of strife and violence in Kosovo, that disturbed the conscience of all civilized people…. Regretting that no mutually-acceptable status outcome was possible, in spite of good-faith engagement of our leaders.” Kosovo’s declaration was contested by Serbia on the grounds that Serbia claimed that the negotiations between the two as led by former President of Finland Martti Ahtisaari known as the “Ahtisaari Plan for the Final Status of Kosovo” and UN resolution 1244 did not allow for an option of an independent Kosovo. However, when the question was posed to the ICJ it was specifically on whether or not the final status of Kosovo as an independent state was in violation of the Ahtisaari plan and UN resolution 1244. The court decided in favor of Kosovo in that it had indeed exhausted other alternatives of a final status and that seeking independence as a solution was a valid claim. Kosovo sees itself as a modern nation state resulting from genocide in the 1990’s, a state that has defined borders and a responsibility to protect the people within those borders. Serbia claims statehood through an ethnic collective that has been victimized not just in the war in the 1990’s but in premodern times. Serbian victimization spans throughout the history during which other national borders have come and gone, and it sees its responsibility to protect ethnic Serbs regardless of other national borders. Serbia’s definition of statehood as vested in the ethnic Serbian people will remain so long as there are ethnic Serbian people who need protection. The physical borders of that state may change, but not the primary material, the people. Like Serbia, the state of Israel is made up of the persons that are members of the victimized group that has been under perpetual victimization from ancient times, and so long as there are people of that group who need protection, the state will persist. This perpetual victimization endows the members of the group with an automatic right to property of the state above others
  • 44. 43 under the 1950 Law of return or “Right to Aliyah”. In Kosovo, citizens of both ethnic Albanian and Serbian descent who were victimized in the war in the 1990’s are entitled to property and the restitution thereof. Kosovo assesses this right on a case by case basis regardless of ethnicity, where Israel recognizes the right to property as a collective one by virtue of ethnicity. The Kosovo Property Claims Commission (KPCC) is the judicial body that is charged with hearing cases of property disputes that originate in the time period between February 27th 1998 and June 20th 1999 and other cases that are considered to be conflict related for both Serb and Albanian individuals.84 Palestinians who lost property in the 1948 conflict leading to the establishment of the state of Israel are granted the collective right to return to their property by UN resolution 242. However, there has never been a domestic or international judicial body that has facilitated this right on an individual basis as the KPCC has done in Kosovo. The right of return for Palestinians is only discussed in collective terms in the UN and within the surrounding countries that host their refugee camps. Israel and Serbia are much more similar in their view of recognition of rights in the collective over individual. Israel and Serbia understand their sovereignty to be vested in the ethnic collective. As Herzl explained (and as discussed in the previous section): “The people are the subjective, the land the objective foundation of the state, and the subjective basis is the more important of the two”.85 Serbia adopted its new constitution As the Republic of Serbia in 2006. It expresses the same idea of sovereignty as being vested in its ethnic persons in the same way of Israel. Article one of the Republic of Serbia defines the state as being made up of the subjects of the state first and 84 For a survey of cases involvingthe property restoration of both Serbs and Albanians see: http://www.kpaonline.org/SearchSC/frmSearch.aspx 85 Ibid.
  • 45. 44 foremost. Those subjects are defined by their ethnic affiliation (being Serb) and those who live around them. “The republic of Serbia is a state of Serbian people and all citizens who live in it.” This terminology allows for all Serbs in any location to be a part of the state including those within Kosovo and other foreign nations whether born in the homeland or abroad. It continues to affirm this in article 2 “Sovereignty is vested in citizens… No state body, political organization, group or individual may usurp the sovereignty from citizens, nor establish government against freely expressed will of the citizens.” This is specifically referring to Serbs in Kosovo. Article 13 states: “The republic of Serbia shall protect the rights and interests of its citizens abroad. The republic of Serbia shall develop and promote relations of Serbs living abroad with the kin state.” For Serbia, like Israel, the material of the state is the ethnically defined collective, and the “kin state” is the physical space of their homeland which is subject to change. Sovereignty is also expressed over members of the ethnic group on other defined territories through the states responsibility as the ethnic homeland to provide protection to them, even at the cost of the rights of members of other ethnic groups. Israel’s Basic Law on Dignity and Liberty (1950) is cited by the government as the functional constitution of the state as there has not been one adopted to this day.86 It reflects the basic values and entitlements of human rights from the United Nations such as no violation of the body, no violation of personal property and freedom from arbitrary arrest. However all of these provisions can be overruled by the eighth article in the law: 86 Israeli State Government Website: https://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm
  • 46. 45 “8. There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.- (1992 amendment added) or by regulation enacted by virtue of express authorization in such law.”(Author’s emphasis) This exception has been invoked in the supreme court for example in a case challenging a law that prohibited the freedom of movement for Palestinians that caused families living in Israel and the Occupied Territories to become separated. In the majority opinion in Mirfat Taysir Abed Al Hamid and others v Minister of Interior and Others (2003) Justice Adiel held that there was indeed a violation of constitutional rights, however this violation served the state and it was therefore allowed. “The law violates the constitutional right to family life which is a part of human dignity, but not the constitutional right to equality. Notwithstanding, in view of the bloody conflict between the Palestinians and Israel, the violation of the constitutional right is proportionate. Therefore the law is constitutional.”87 In the eyes of the court, there is an admission of the violation of basic human rights however, the concept of “proportionality” comes into play. It is not just the comparison of communities in the present situation, but when compared to the entire historical narrative of the suppression of the Jewish people in the world the denial of these rights to this individual pales in comparison. The Palestinians are merely the current character in place that are playing the role of the perpetrator, yet they receive the comparison of centuries of other perpetrators acts in order to justify the taking of their rights. Serbian Nationalism also makes similar comparisons to what it sees as the “other” which, is also a general understanding of a threat from the Muslim world. Israel argued in its own report that its actions were in the framework of proportionality because while they had only suffered 12 casualties in the operation to the 1,400 Palestinian civilians who were killed the Israeli Defense Forces (IDF) argued that the operation was in retaliation for years 87 Mirfat Taysir Abed Al Hamid and others v Minister of Interior and others HCJ 10650/03 2006.The Supreme Court of Israel.
  • 47. 46 of rocket attacks, and suicide operations which killed 1100 over a number of years and it estimated “thousands more at risk” effectively expanding the scope of their victimization from the event at hand to include an undefined amount of time to count casualties at least on the Israeli side.88 In regards to Kosovo, Milosevic’s self-defense at his trial for war crimes in Yugoslavia at the Hague was founded on his interpretation of his own actions as motivated by humanitarianism, and employed the Israeli prototype model category of the un-human the “Nazi” to discredit his adversaries/victims. He could not conceptualize his own actions as being unhuman, because he was under the influence of his ethnic collective whose victimization he saw was perpetual and therefore justified any means of protection, even at the expense of “the other”. “The situation in Kosovo was intolerable, Serbs had been deprived of their rights, who would think our country capable of such discrimination?... Equal treatment, human rights, no discrimination. That’s why we supported the Serbs outside Serbia…The Albanians could do this because the province of Kosovo was virtually a republic the local council had the power to implement what I’d call a truly Nazi policy.” 89 Though it was a violation of the communist party line to meet with the Serbian Nationalist party in Kosovo, in April of 1987 Milosevic went to Kosovo and met with them anyways. He insisted that this action in solidarity with the ethnic nationalist movement was only in reaction to Albanian nationalism, though his evidence of such was confined to testimony heard in Serbian Nationalist party meetings, and references to basic demographic realities of Albanian populations being in larger numbers in Kosovo. “It’s absurd when the war started that we Serbs were accused of nationalism. Us!”90 Milosevic consistently described his actions as merely reactions to his adversaries, as well as his actions as being an extension of the will of his people and not his own, 88 Israeli Defense Forces The Operation in Gaza: factual and Legal Aspects, June 2009; Art. 36 pg. 14 89 Percy. Part 2 at 5:40 90 Percy. Part 1 at 1:20
  • 48. 47 in this way this he divorced his own responsibility from his crimes against humanity. Whereas Eichmann was obedient to the authority of the Nazi Party, Milosevic was in obedient to the Serbian Nationalist mob. In a meeting with the Serbian nationalist party in Kosovo in April of 1987 Milosevic sat in a room and heard testimony of Serbs in the nationalist party about their feelings of discrimination from the Albanians around them. “For the first time I heard the phrase “ethnically pure” the Albanians wanted an ethnically pure Kosovo. They murdered Serbs. Defiled our graves, burned monasteries. The Exodus of Serbs from Kosovo began.”91 By comparing the Albanian government to a “Nazi” regime Milosevic described Serb persecution in Kosovo as going through an “exodus” which is the primary experience of Jewish victimization that defines them as a group being in held in exile in Babylon and later in Egypt. This one metaphor was taken from the state model of the ancient narrative of Israel. In an interview with the BBC the leader of the Serbian nationalist party Miroslav Solevic detailed how the mob had antagonized the police to violence: “We told our lads to prepare for a real fight. We parked two lorries full of stones we didn’t say they were for the police, they were there just in case…“we could hear the noise coming from outside, what could it be? Our boys ran for the stones we had parked outside, they turned and pelted the police. Each policeman got a “gift” from the masses. On the head on the helmet on the back. I went to Milosevic, I said “the police outside are beating our people” he couldn’t pass this hot potato to anyone else. So he walked outside because he was obviously afraid. He knew he was playing for high stakes.”92 Cameras were rolling when Milosevic stepped outside into the crowd that day when a man in the crowd came up to him and declared: “the police attacked us they hit women and children the 91 Percy. Part 1 at 2 :45 92 Percy. Part 2 at 1:40
  • 49. 48 Albanians got in among us, we were beaten up”93 to which Milosevic responded “You will not be beaten again.”94 This scene was played on the 3 leading Serbian television channels that evening and Milosevic’s media persona as a leader of the Serbian Nationalist movement was born. Israel and Serbia justify their military campaigns through the language of protection and human rights, by comparing the victimization that they perpetrate to the perpetual victimization of their ethnic collectives in their national narratives experience. They both display a basic categorization of victim based sovereignty grounded in the binary categories of all human collectives as being either one of them a “victim” or apart of another group “perpetrator”, “good and evil” “human and un-human”. Hannah Arendt’s analysis of Adolf Eichmann’s trial in Jerusalem in 1961 and the popular reaction to it in Israel articulated the response towards Eichmann’s self-defense of “banality”. Arendt’s observations of Eichmann’s evil deeds having originated in a very ordinary human tendency towards obedience to authority was validated years later by quantitative research by professor Stanley Milgram. Milgram’s famous experiment showed that eighty percent of Americans would also follow orders from an authority figure to the point of lethal consequences to others. Milligrams participants were enlisted as “teachers” whose task it was to administer an electrical shock of increasing intensity to a “learner” when they were to answer a question wrong. The “learners” were paid actors who feigned severe pain upon receiving the shocks; the “teachers”—Milgram’s real subjects—were under the impression that they were administering the shocks as part of a behavioral study. The “learners” were prodded by one of Milgram’s 93 Percy. Part 2 at 3:13 94 Percy. Part 2 at 3:33
  • 50. 49 monitors who sat with the “teacher”. If the teacher were to show some form of questioning of the experiment the monitor would respond with the neutral statements such as “Please continue”, “Please go on.” or “The experiment requires that you continue.” but only when the subject resisted. 35 out of the 40 “teachers” or subjects in Milgram’s experiment went on to administer what they believed were shocks of 435 volts – a lethal dose to another human being.95 Milgram’s famous experiment has been replicated with different variants in different locations in the world with remarkably similar results. Yet, his initial published study which cited Arendt’s research on Eichmann was met with controversy in 1963 such as Arendt’s work had been received in 1961. The manner of criticism of Arendt’s observations of Eichmann’s trial in Jerusalem had an element of personal defamation that Milgram did not face in that Ardent, herself being a German Jew who had spent time in a concentration camp as a political refugee, was rejected from her collective group identity for departing from the cognitive binary model (explored in the methodology). In Israel she was labeled a “self-hating Jew.” Ardent lost many friends and colleagues as a result of “The Banality of Evil” most famously her colleagues in Israel who were amongst the intellectual architects of the state. The reason for this is that the cognitive model the state is based on is a binary system that cannot except that Eichmann or anyone could be both evil and human at the same time. The act of comprehending the Nazi as part of the categorical human race inferred that he was in the same category of the holocaust victim. The compartmentalization of certain acts as not “inhumane” but “un-human” obscures any possible path to understanding those acts in human terms. How can one use human tools to explain that which is considered not to be a part of the human experience? It alienates any self-awareness of the kind of behavior that could cause 95 Milgram,Stanley. 1963. Behavioral Study of Obedience. Journal of Abnormal Psychology 67 (4): 371–78.