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The World and Yugoslavia's Wars, Edited by Richard H. Ullman
Jean E. Manas
As soon as Yugoslavia's wars began, numerous forceful demands were made for outside intervention. Yet the intensity of these calls to action masked the extent to which all interventions (or would–be interventions) are plagued by the tension between two competing and equally legitimate goals. While outside actors—governments, nongovernmental organizations, and private individuals—strive to stop the fighting and secure peace, they also strive to serve justice, which sometimes requires the prolongation of hostilities. Resolving this tension between peace and justice is even more difficult than it initially appears.
Unfortunately, most policy discussions avoid this issue. Presuming a certainty and clarity of purpose, they focus instead on problems of implementation. This disposition is perhaps most evident in the routine invocation of the label "failed" to characterize the involvement of outside actors in the region. Logically, it would be difficult to speak of failure if there is no certainty regarding or clarity on what would constitute "success."
Two Ideals: Peace and Justice
Outside interventions in the former Yugoslavia have been motivated consciously by two ideals: peace and justice. The great majority of observers believe that it is morally unacceptable to discard one goal in favor of the other. Thus, both the singleminded pursuit of a utopian outcome and the acceptance of a patently unjust peace have been ruled out as a matter of course, and all proposed settlements have been appraised and graded according to the extent to which they promise to satisfy both ideals.
Although many outside intervenors (or would–be intervenors) pursued both peace and justice in the former Yugoslavia, they rarely faced up to the fact that, at any level of specificity, the two ideals are in tension: the pursuit of justice entails the prolongation of hostilities, whereas the pursuit of peace requires resigning oneself to some injustices. 1 Moreover, even those policy analysts who recognized this tension underestimated the challenge it poses. The tension cannot be resolved simply by engaging in an ad hoc "balancing" of peace and justice in order to determine what kind of arrangement maximizes both.
The problem with ad hoc balancing is that it creates a perverse incentive for the warring parties to embrace extremism and resort to violence. Since the international community will not agree to a settlement that does not promise to be peaceful, all a party needs to do is make it clear, by words and violent actions, that it will not settle for anything short of a complete capitulation to its demands. This very act moves the maximizing solution closer to the settlement desired by that party. In Yugoslavia the Bosnian Serbs pursued this strategy remarkably well: responding to every proposed settlement with continued fighting, they saw the internationally supported arrangement get closer and closer to their position.
Two principal approaches exist that hold out the promise of a principled rather than an ad hoc solution to this quandary. The first approach consists of drawing a line and sticking to it. But the difficult task arises of figuring out where the line ought to be. The second approach, by contrast, avoids this problem by adopting a position of neutrality with respect to the optimal arrangement: the "correct" arrangement is one to which the opposing parties agree. The next two sections discuss these approaches in turn and explore the difficulties associated with them.
A Framework for a Just Peace: International Law
In order to identify a "just peace," most observers turn to international law as the appropriate framework. International law takes the state as its foundational unit. It views the world as permissibly divided into a number of states with clearly delineated territories and is concerned primarily with regulating the interaction between these states. The law's first principle is that state borders are inviolable. This means, roughly, that states are prohibited from transgressing those borders, except in certain exceptional circumstances. Traditionally, the law also has declared states to be absolutely sovereign within their own territories. The post–World War II era, however, has witnessed the emergence of human rights norms that place certain limits on a state's power over its own population.
There is little question that human rights have been roundly violated in the former Yugoslavia. Hundreds of thousands of persons were forcibly expelled from their homes—and many thousands murdered—in an outrageous practice that has added a new expression to the English language, "ethnic cleansing." Clearly, for a settlement to uphold international legal norms, it would have to include a provision ensuring that all displaced persons be able to return to their homes. It also would require that the perpetrators of atrocities be punished.
International law thus imposes a number of important requirements on any potential solution. These requirements do not, however, shed much light on the core issue of Yugoslavia's wars—how the contemporary Yugoslav space ought to be reorganized in light of the competing claims to the identity of territory in that part of the world. The principle of the inviolability of borders is of no use: since the principle presupposes the location of borders, it does not purport to answer the question of where borders ought to be when a state is in the midst of a breakup.
The rest of the international legal corpus is not of much help either. At first blush, the principle of greatest applicability is that of the self–determination of peoples. This principle is presumed to help identify legitimate secessions. Moreover, if the principle is applicable, the central authorities are prohibited from trying to frustrate it, by force or otherwise. Under some interpretations of the principle, the seceding entity might even be entitled to make recourse to force in its effort to effect its secession. By contrast, if the principle is inapplicable, the central authorities are justified in using force to keep the state intact.
Naturally, the applicability of the principle depends wholly on how one defines the terms "self" and "people"; but surprisingly, international law provides little guidance as to how the terms are to be defined. There is consensus that the population of each territory considered to be colonial under the U.N. Charter constituted a distinct "people" or "self" for the purpose of the applicability of the principle of self–determination. 2 Little agreement exists, however, over whether the population of any substate unit other than a colony constitutes a distinct people for this purpose. 3 As Arnold Toynbee perceptively remarked in the wake of an earlier Balkan war, the self–determination principle "is merely the statement of a problem and not the solution of it." 4
Yugoslavia's wars have given rise to efforts to give the principle some meaning in the context of the breakup of a state that is not a colonial empire. These efforts, however, have been plagued by serious conceptual difficulties.
The Principle that States Ought Not Be Defined Ethnically
Implicit in much of the discussion surrounding the Yugoslav quandary has been the novel principle that the term "people" ought not be defined "ethnically," on the grounds that an ethnic definition augurs a bottomless pit and, because it is inconsistent with humanist values, it is thoroughly obnoxious. During the earlier stages of Yugoslavia's wars (up through spring 1992), this principle was cited as an argument against the partitioning of the state. During the later stages of the conflict (from early 1993), the principle has been invoked as a self–evident universal truth in the condemnation of Serb nationalist efforts to create a Greater Serbia or to carve self–governing Serb states out of Bosnia and Croatia.
Both uses of the principle reveal two fatal flaws. The first is that the prohibition against ethnic–based secessionism overlooks the ethnic bias built into most, if not all, existing states, including Yugoslavia and its six constituent republics. France is a French, not a Breton, state. Turkey is a Turkish, not a Kurdish, state. Yugoslavia, at least in its waning days, came to be viewed as a Serb state. The newly independent Croatia is a Croat state, and the newly independent Bosnia promised to be a predominantly Muslim state, more "Muslim" in any event than the Yugoslavia that the rural Serbs of eastern Herzegovina had come to view as their state.
It is such ethnic bias that has historically fueled and ultimately justified secessions. Indeed, the idea of an independent and united Yugoslavia itself was the result of a reaction to biases inherent in the seemingly multiethnic Austro–Hungarian empire (in favor of Austrians and perhaps Hungarians and definitely against southern Slavs) and the Ottoman empire (in favor of Muslims, and later Turks, and definitely against Christians and Serbs). If southern Slavs could secede from the Austro–Hungarian and Ottoman empires, why could not Croats secede from Yugoslavia and Krajinan Serbs secede from Croatia?
Moreover, whether the bias in favor of one group translates into severe oppression of a minority or not has little to do with the question of whether secession is justified. Indeed, "minority" ethnic groups might be treated very well in countries with a "majority" bias. Nevertheless, they might still want to have their own state in their respective regions. What would be wrong with that request if those secessionist minorities agreed to treat members of the current majority (who would become minorities in the new state) as well as they (the present minorities) are being treated currently in the larger state? Such a request cannot be deemed any more ethnicist than the insistence on the preservation of the status quo.
There are two responses to this line of reasoning, although both are ultimately unsatisfying. One response is that ethnicism is a bottomless pit. Once one recognizes the right to ethnic self–determination, there is no end to how many states could come into existence. But that response is a red herring and is fundamentally unpersuasive as a means of laying down a principled defense of a particular map. The problem with line–drawing is that today's line is as arbitrary as any.
Another response concedes that existing entities might have an ethnic bias, but that the right course of action is to correct the bias rather than destroy that entity. While it is difficult to argue with the aim of this response—"ethnic neutrality"—it appears to be unattainable. So long as citizens of a polity define themselves ethnically, that polity will, a fortiori, have an ethnic bias, if for no other reason than the existence and effects of bloc voting. Minority rights and other political arrangements protective of minorities might take the edge off this bias (and they are certainly welcome so long as they are universally applicable and not relevant only to certain parts of the world), but they cannot ever get rid of it completely. 5 No amount of protection for minorities will put the Breton speakers and the French speakers on an "equal" footing in France. The same holds true for the succession states of Yugoslavia. In any case, regardless of whether ethnic neutrality is ever attainable, there is no basis on which to reject secessionist demands if the seceding entity agrees to treat members of the majority as well as it currently is being treated in the larger state. If it is acceptable for Slovenes to be a minority in Yugoslavia, why is it unacceptable for Serbs to be a minority in Croatia, or for Croats to be minority in a Krajinan Serb republic?
There is a second, more subtle, reason why the effort to divide up Yugoslavia (or Bosnia) is no more ethnically motivated than the effort to preserve it. That reason is to be found in the definition of the term "ethnic group." If an ethnic group is defined by reference to certain characteristics, then clearly it is ethnicist to be for Croatia, for a Greater Serbia (or for Corsica, Kurdistan, or Quebec), but it is not ethnicist to be for Yugoslavia, for Bosnia (or for France, Turkey, or Canada). But by simply focusing on different characteristics, one can view Yugoslavia, Bosnia, France, Turkey, and Canada all as ethnically defined. One way to highlight these characteristics is to view these countries through the prism of their citizenship policies. If there were no such thing as a French or Canadian "ethnicity," there would be no automatic grant of citizenship to children born to French or Canadian parents. Nor would one be denied either citizenship on the basis of being born, say, to Chinese parents in Uruguay. Another way to highlight these characteristics is to reach back into history. Yugoslavia itself was the product of the efforts of southern Slavs to carve a southern Slavic nation–state out of two multiethnic empires: the Ottoman and the Austro–Hungarian. Viewed this way, the distinction between Yugoslavism and Croatianism (and in the later stage of the conflict between Bosnianism and Serbism) boils down to the fact that Yugoslavism (or Bosnianism) had, at the time, attained its ideal of a state while its adversary had not. This is hardly a ground on which to declare the latter's quest for a sovereign state impermissible.
Some might argue that Yugoslavia, as a mosaic of southern Slavs and other assorted Balkan peoples, ranked higher on the multiethnicity scale than Slovenia. However, that is hardly a basis on which to require Slovenia to remain part of Serb–dominated Yugoslavia, especially since Slovenia's avowed purpose in seeking independence was rapid incorporation into the European Union (EU), a development that would, at a minimum, be neutral from the perspective of multiculturalism, since any loss to pluralism in Yugoslavia would be offset by a gain in the EU.
Defending Secession along Republic Lines
Although in the initial stages of Yugoslavia's wars some outside actors (particularly the United States and the Soviet Union) argued against the partition of the country, for a long time thereafter there was quasi–unanimity in international circles that the "correct" map of Yugoslavia was one that divided the country along the lines of the Yugoslav republics. Slovenia, Croatia, Bosnia, Macedonia, and the rump Yugoslavia (Serbia, Montenegro, Kosovo, and Vojvodina) were each viewed as a distinct unit. Most international, and in particular Western, actors would not even consider the alternatives to this arrangement. "Yugoslavia" itself was relegated to the dustbin of history, while any efforts to change the republics' borders and to effectuate further secessions were pushed into the realm of illegality, if not immorality. Accordingly, Yugoslav troops trying to save the union and Serb troops trying to establish a rump Yugoslavia that included parts of Bosnia–Herzegovina and Croatia were labeled as aggressors. Likewise, Bosnian Serbs and Krajinan Serbs trying to create their own independent republics were dismissed as "warlords" or "thugs."
Certainly, had the international community insisted on maintaining the republics' borders and brought its considerable resources to bear on the various actors, "peace"—defined as a cessation of gunfire—might have been achieved. But then again, the cessation of gunfire would have been no less likely had the international community thrown its full weight behind the preservation of Yugoslavia or the creation of a Greater Serbia. Hence the central question: Why this particular map?
In an effort to explain their preferred map, international analysts came up with various justifications. They distinguished the first wave of secessions (Croatia, Slovenia, Bosnia, and Macedonia) from the later ones (those of the Krajinan Serbs, the Bosnian Croats, and the Bosnian Serbs) in a number of ways. But on closer examination, these distinctions are not as sharp as they have been made out to be.
One justification has been discussed already. Under this first rationale, the second wave of secessions were illegitimate because they were motivated by ethnicism, or the desire to improve the linkage between existing states and ethnic groups. But as indicated earlier, this argument is specious, more so as a way to distinguish the two waves of secessions. In Yugoslavia, the first wave of secessions was as ethnicist as the second. Croats and Slovenes wanted Croat and Slovene states; they did not wish to remain part of a multiethnic, federated Yugoslavia. On what principle can Krajinan Serbs be denied the same wish?
Under a second rationale, the first wave of secessions was legitimate because those secessions took place along administrative borders ("republic borders") that were recognized as such under Yugoslav law. 6 This is a curious argument. It is difficult to see why one would want the right to secession to depend on the preexistence of internal municipal borders. Did Algeria have a weaker claim to secession than Senegal because, under French municipal law, the former was part of France while the latter was a distinct colonial territory? Paris obviously thought so, but the U.N. General Assembly respectfully disagreed. 7 It also is difficult to see the equity in treating internal municipal borders as sacrosanct: Why should Crimea forever remain a part of Ukraine simply because an impulsive tyrant decided to redraw the Soviet Union's internal borders? Giving internal municipal borders the same weight as international borders also promises to frustrate efforts to deal with ethnonational tensions through regional autonomy and federalism arrangements. Fearful that an internal border, once drawn, would take a life of its own, a state would be reluctant to create a legal arrangement that would set an internal border. Turkey, for instance, would never recognize a Kurdish region in light of the precedent set by the Yugoslavia example. Indeed, this danger has even found an illustration in the Yugoslav context. Serbia has abolished the status of Kosovo as a distinct autonomous region. Although the international community has been unhappy about this act, it certainly was a logical step. The radical extension, in international discourse, of the prohibition on aggression to acts committed to prevent secession along internal municipal borders has made federal authorities wary of leaving those borders in place. Presumably this is a consequence that many international observers, particularly advocates of creative means of diffusing ethnonational tension, would consider undesirable.
Moreover, even if municipal borders were given a state–constitutive status, this would not necessarily help distinguish the first wave of secession from the second (although it may help render illegitimate inter–unit border struggles or federal efforts to keep the federation intact). The administrative border argument fails to provide guidance in identifying which administrative borders are state–constitutive and which are not. If republics could become states, what about "autonomous regions," such as Kosovo? If Bosnia–Herzegovina could become a state, why not Herzegovina or even Sarajevo or Bihac? These are not mere hypotheticals. For a time, Bihac did strive for statehood under the leadership of a Bosnian Muslim businessman who had no sympathy for the official Bosnian government in Sarajevo. 8
A third related, and particularly compelling, rationale for the legitimacy of secessions along republic lines is that they were permissible under the Yugoslav constitution. 9 Those who advance this contractarian argument maintain that it is only fair to hold the antisecessionists to a provision in their own laws. 10 This argument contains two flaws. First, it is unclear whether the Yugoslav constitution in effect at the time of the secessions did in fact provide for secession. Moreover, although some constitutional scholars have read that right into the constitution, one could legitimately respond that, in the absence of a mechanism for effectuating that right, the secessions were impermissible as they were actually carried out. 11 Second, and more important from the perspective of the larger international framework, this argument concedes that the legitimacy of a secession depends on the vagaries of a domestic document. Thus, regions of a nation–state with a particularly oppressive central authority that makes clear that the regions do not have the right to secede are placed in a comparatively worse position than regions of a nation–state governed by a central authority that experiments with decentralization. Again, this is likely not a consequence intended by those who wish to encourage different ways of letting different people coexist.
A fourth rationale grounds the state–constitutive stature of the republic borders not in their status under Yugoslav municipal law but in their recognition by the international community. Under this argument, a border, even if drawn for the first time internationally, becomes inviolable once the international community recognizes it as legitimate. This invocation of international "process" to legitimize a border holds some appeal, but it raises questions about the legitimacy of the process that led to the recognition of the borders in the first place. That a secession from a nation–state could be considered legitimate simply because a group of states decided to recognize a border running through that nation–state has significant consequences for the very concept of sovereignty. This invocation of process might have been less worrisome if the international community had in place a legitimate mechanism for the recognition of internal borders. But no such mechanism exists. The ad hoc mechanism set in place by the European Union, which mandated that only breakaway republics respectful of minority rights be recognized as independent states, might have filled the void (although this is highly debatable insofar as there existed no basis for requiring the warring parties to accept EU arbitration). But even that mechanism represents a lost opportunity, since the EU states, ignoring their own recognition criteria, elected to recognize Croatia despite the contrary recommendation of the Arbitral Commission established to apply those criteria.
In sum, no principled basis exists under international law to distinguish the two waves of secession. Naturally, the opposition to the later wave is understandable, driven as it was by reactions to the means (forcible expulsion of populations, mass killings) associated with efforts to actualize those secessions. But opposition to the means should be decoupled from opposition to the goal. Mass killings and forced expulsions would be objectionable even if the goal they were intended to serve was noble. Alternatively, a goal might be noble (or at least acceptable) even if the means utilized to effectuate it was illegitimate. Thus, a right to statehood cannot be extinguished (assuming it is applicable) simply because some of its advocates and beneficiaries have committed wrongs in an effort to vindicate that right.
Map–Neutrality and Intermediation: An Alternative Framework?
As we have seen from the preceding discussion, international law provides no basis for declaring that Yugoslavia's division along "republic" lines constitutes a superior response to the strife in the region. This is not meant to suggest, however, that any one of the alternate solutions (such as the preservation of Yugoslavia as a unified nation–state or its division along other lines) would have constituted a superior response. The discussion of the international legal framework was intended solely to demonstrate the difficulty of declaring any one map superior to another or announcing any one identity to have a greater claim to sovereignty than another, as the international community has rushed to do.
To some international observers, the implications of this line of reasoning are clear (and welcome). If no settlement is more just than another, then clearly no settlement is less just than another. If this is so, then one ought to choose the option that is most likely to secure the peace.
At first blush, this peace–oriented perspective makes the task appear easy. Obviously, the settlement that is certain to secure the peace is a settlement to which all the parties accede. From this perspective, whatever arrangement the parties agree upon constitutes a "just peace." And no arrangement would be deemed to constitute a "just peace" in the absence of such an agreement. In the search for a settlement, the international community should be steadfastly map–neutral and limit its role to helping the parties reach an agreement.
This particular approach to the search for a "settlement"—one that appears to be result–neutral and based on negotiation—is appealing in light of the difficulties of articulating a "correct" resolution to Yugoslavia's wars. Accordingly, the approach has gained adherents steadily as the conflict has dragged on. However, the approach is not as neutral as it is said to be. Substantive bias is built in to the very identification of the "parties" for purposes of negotiation, the choice of which is certain to affect the outcome.
This difficulty is rarely acknowledged because the definition of parties appears so natural and uncontroversial: Are there not three parties in Bosnia—the Bosnian Croats, the Bosnian Serbs, and the Bosnian Muslims? On closer examination, however, the process of fixing parties turns out to be as contestable as the process of determining a correct map. It requires not the fixing of "territorial" borders but the fixing of "communal" borders. Yet the problems inherent in fixing borders are the same across the board. In Bosnia, as elsewhere, there are competing identities, and most individuals feel the pull of more than one. Borders—any borders—will by definition do violence to some of these pulls just as they confer privilege and honor others. A Serb–dominated Yugoslavia disadvantaged the Croat identity. The creation of Croatia disadvantaged the Serb identity.
Similarly, the recognition that there are three legitimate parties in Bosnia is certain to disadvantage those who do not belong to any of these three communities and those who do not conceive of their identity as communally constructed. Some might feel Bosnian, pure and simple. Others might conceive of themselves as Serbo–Croat; still others as Yugoslav, Slav, or European, or more locally as Sarajevan. Some might even be agnostic with respect to ethnonational referents and conceive of their identity in gender or class terms. If there is no basis for declaring one particular territorial division of the Yugoslav space superior to another, how can there be a basis for declaring a particular communal division of Yugoslav society superior to another? If the carving up of Yugoslavia into six pieces cannot be justified, how can the division of Bosnians into three groups (or, as the Dayton accords will have it, two "entities") be justified?
Just as the central question earlier was "What map?" the central question here ought to be "What parties?" The answer to this question is not all that easy to determine, even if one were steadfastly fixated on peace. The pragmatic answer—that an entity would be deemed a party to negotiations if it had access to means of violence in sufficient quantities to affect adversely the peace—is unsatisfactory, even on its own terms. An international process that limits the seats around the negotiating table to entities with access to the means of violence renders access to means of violence an important goal for all entities. Such a process promises to undermine the very goal (peace) that it is designed to serve.
The Vindication of Fundamental Norms
Two conclusions emerge from the preceding discussion. First, international law, the one universally accepted framework for determining a principled settlement, is indeterminate on the salient issues associated with ethnonational strife and the accompanying struggle over the identity of territory. Second, the alternative of seeking peace, any peace, through intermediation also is plagued by conceptual difficulties. The implications of these conclusions are clear. Ideally, until the international community can find a basis for articulating what would constitute a "just peace" in the former Yugoslavia, it ought to have adopted a position of complete neutrality with respect to issues over which there is little certainty, such as the location of borders or the organization of contemporary Yugoslav space. As for mediation, in light of the substantive bias built into it and the problem of privileging parties with access to violence, the international community also should have considered abandoning that task. It goes without saying, of course, that the international community did not follow these precepts. One striking deficiency in the Dayton accords—at least on the conceptual level—is their failure to articulate the principles upon which they are based.
This is not to suggest that the international community would have had nothing left to do in the former Yugoslavia. Although it is formidably difficult to articulate what a "just" resolution of Yugoslavia's wars would entail, the ideal of justice is not wholly indeterminate. There are issues over which there is little uncertainty. The violation of fundamental norms (ethnic cleansing, mass killings) is unequivocally wrong. As the international community struggles over the challenge of coming up with a just settlement, it can (and should), in the interim, commit itself fully to the vindication of these fundamental norms.
This course of action might appear modest, but it is still a big job. First, those norms that are truly fundamental must be determined. All would agree that the prohibition on genocide is one such norm, but how far can the list be extended? Should, for instance, the prohibition on mass expulsion also be considered a fundamental norm, even though recent history is replete with examples of internationally sanctioned mass expulsions? 12
Second, the effort to vindicate fundamental norms does not necessarily provide clear guidance on the correct course of action. Just because we know that what they do is wrong does not mean that we know what we ought to do. Even as we focus on the most egregious acts, we cannot escape acute dilemmas. If we had insisted on the vindication of fundamental norms, we might have had to reject a settlement that will alleviate the immediate human suffering and minimize the probability that atrocities will take place in Yugoslavia in the future.
With respect to issues like these, there appear to be two options: the "realist/pragmatist" option and the "idealist" option. For the realists/pragmatists, purity is unattainable, even with respect to fundamental norms. A human rights crusade is a costly affair. What we need to do is balance justice against peace. As the Bosnian crisis reminded us, however, such balancing might change from day to day. What is an ideal balance today might not be so tomorrow. Allowing the "superior" solution to be determined by the specificities of time and place carries with it a high price tag. It encourages those who are unhappy with a particular solution to make sure that the solution no longer maximizes the competing values of peace and justice. For a Serb unhappy with the repatriation of the Muslim victims of ethnic cleansing, for instance, a rational alternative would have been to do whatever it takes to convince the international community that returning displaced persons to their homes will not maximize peace and justice. For a Bosnian unhappy with the results of ethnic cleansing, the rational alternative is to convince the international community of the exact opposite. Embracing "realism," then, risks depriving us of an ability to protect the realist solution, as marginalized actors will do all they can, and by any means necessary, to sabotage that solution.
In light of this cost, it might be tempting to go to the other extreme, to reject the realist position fully and to adopt the idealist position that the vindication of fundamental rights is not negotiable. Any settlement is unacceptable that does not provide that all war criminals will be punished and that all Yugoslavs will have the right to return to their homes. To the idealist, this is important, not simply with respect to the people affected but also to demonstrate to others that wrongdoing does not pay. But this purism comes with a price tag too. And the principal problem is that those costs are unlikely to be borne by the same people who would reap the benefits of a purist course of action. How is one to weigh the immediate suffering that a sustained war effort against Serbia would inflict on Bosnian (and Serb) civilians, as well as on U.N. troops, against the benefit that some victims will reap from that effort and the establishment of a desirable general precedent?
Coping with the Challenge
This close examination of the issues presented by Yugoslavia's wars leaves us in a quandary. The issues are not unique to this conflict, of course, but are to be found in all instances of ethnonational strife. As noted, one way out of the impasse generated by the struggle over borders, both territorial and communal, is to abandon altogether the effort to resolve the issues at stake in these struggles and to try instead to vindicate certain fundamental norms over which there is little uncertainty. Thus, outside actors had no basis in principle for declaring to the participants in Yugoslavia's wars what the "correct" borders of the reorganized Yugoslav space were. Nor did the outside actors have a basis for requiring that the parties abide by their (the outsiders') sense of an acceptable peace. They did not even have a basis for demanding an immediate end to hostilities. The outside actors have been on solid ground of principle only when requiring that the parties respect certain universal norms.
But as the argument thus far suggests, this alternative is not a perfect guide for action. Just because it is clear that some of what they did was unequivocally wrong does not mean that the moral calculus, as it applies to our actions, is crystal clear. What is the correct response to the violation of universal norms? What balance ought a response strike between the desire for justice and the yearning for peace? The basic tension reemerges even as we anchor ourselves in the paradigm of fundamental norms.
In the end, this leaves us with a call for reflection: reflection over the cost (to peace) we are willing to incur as we try to vindicate fundamental rights and the cost (to justice) we are willing to incur as we embrace peace. Some might characterize this call for reflection as an escapist retreat into the ivory tower: since we do not have the courage to fight evil and are reluctant to look the horror in the face, we pretend that things are more complex than they actually are to justify our inaction. While it is true that the raising of moral difficulties could be an excuse for inaction, that need not be the case. In any event, the possibility of paralysis is no justification for jumping on whatever bandwagon is traveling down Main Street on any given day.
This leaves us with a few suggestions that, while they may no longer be useful for settling Yugoslavia's wars, may help us to deal with similar conflicts elsewhere:
Endnotes
Note 1: Admittedly, not all international observers have pursued these two ideals, and some who have pursued peace and justice have also pursued other goals, such as containment. Yet it is safe to assume that the twin ideals of peace and justice have structured much of the policy thinking and discussion with regard to the former Yugoslavia. Many actors have embraced both ideals, in part, if not in whole. The remaining actors have, at a minimum, invoked them if for no other reason than to score rhetorical points. Hence, a careful examination of the two ideals and their interrelatedness is justified. Back.
Note 2: See, for example, Lee Buchheit, Secession: The Legitimacy of Self–Determination (New Haven, CT: Yale University Press, 1978), pp. 17–20. Back.
Note 3: At the height of decolonialization, most states agreed that the right to self–determination was to be limited to overseas colonies of Western colonial empires, in an unspoken rule that came to be known as "saltwater colonialism." See, for example, James Mayall, "Self–Determination and the Organization of African Unity" in I.M. Lewis, ed., Nationalism and Self–Determination in the Horn of Africa, (London: Ithaca Press, 1983). Unsurprisingly, many secessionists rejected the saltwater colonialism rule. Ironically, they were supported by at least one colonial power—Belgium—which, in a doctrinal argument that came to be known as the Belgian Thesis, argued that there existed no principled way in which to distinguish the anticolonialist struggle from the struggle for self–determination carried out by the indigenous peoples in the Americas. See Buchheit, Secession, pp. 74–75; and F. Van Langenhove, The Question of Aborigines before the United Nations: The Belgian Thesis (Brussels: Royal Colonial Institute of Belgium, 1954). Although Belgium was accused of engaging in a hypocritical effort to salvage its empire, its thesis highlighted the problem with the saltwater rule.
Many international legal scholars have since contested the strict limitation of secessionism to settings of saltwater colonialism. They have argued that the limitation is neither normatively nor legally grounded. See, for example, Alexis Heraclides, The Self–Determination of Minorities in International Politics (London: Cass, 1991), p. 38; Antonio Cassese, "The Self–Determination of Peoples," in Louis Henkin, ed., The International Bill of Rights (New York: Columbia University Press, 1981), pp. 91, 94–95, 112; John Collins, "Self–Determination in International Law: the Palestinians," Case Western Reserve Journal of International Law, vol. 12 (1980), pp. 137, 153; Ved Nanda, "Self–Determination under International Law: Validity of Claims to Secede," Case Western Reserve Journal of International Law, vol. 13 (1981), pp. 257, 266; Ernest Petric, "Self–Determination: Security, Integrity and Sovereign States" in Konrad Ginther and Hubert Isak, eds., Self–Determination in Europe: Proceedings of an International Workshop Held at the Akademie Graz July 5–6, 1989 (Vienna: Bohlau, 1991), pp. 23, 32–33; and Eise Suzuki, "Self–Determination and World Public Order: Community Responses to Territorial Separation," Virginia Journal of International Law, vol. 16 (1976), pp. 779, 861. Back.
Note 4: See Arnold Toynbee, "Self–Determination," Quarterly Review, vol. 484 (1925), p. 319. Back.
Note 5: This double–standardism was most evident under the League of Nations minority protection regime that was applicable only to a select number of countries, all losers of World War I. See generally Inis Claude, National Minorities: An International Problem (Cambridge, MA: Harvard University Press, 1955); and Patrick Thornberry, International Law and the Protection of Minorities (Oxford: Clarendon Press, 1991), pp. 38–40. In the modern era, France is most guilty of double–standardism in this domain. While pushing for minority rights in the Balkans (and elsewhere) on international legal grounds, France has always placed a reserve on the minority rights provisions included in international human rights treaties. Yves Plasseraud, "Qu'est–ce qu'une minorité en France aujourd'hui?" in Les minorités a l'age de l'État–nation (Paris: Groupement pour les droits des minorités, 1985), pp. 271, 274. According to these reserves, these provisions have no applicability in France, because France does not have distinct minorities. Back.
Note 6: This idea may be traced to Cassese, "Self–Determination of Peoples," pp. 92, 95. Back.
Note 7: See G.A. Res. 1573, December 19, 1960. Back.
Note 8: See Le Monde Diplomatique, January 1995. Back.
Note 9: For the argument, see, for example, Ben Bagwell, "Yugoslavian Constitutional Questions: Self–Determination and Secession of Member Republics," Georgia Journal of International and Comparative Law, vol. 21 (1981), pp. 489, 516–22. Back.
Note 10: See, for example, Marc Gjidara, "Cadre Juridique et Regles Applicables aux Problemes Europeens de Minorité," Annuaire Français de Droit International, vol. 37 (1991), pp. 349, 367. Back.
Note 11: See, for example, Bagwell, "Yugoslavian Constitutional Questions," p. 508, n. 8, 10. Back.
Note 12: One can point to the internationally sanctioned mass expulsions that took place after both world wars. After World War I, Greece, Turkey, and Bulgaria signed multilateral treaties whereby they agreed to exchange minority populations. See, for example, Convention between Greece and Bulgaria Respecting Reciprocal Emigration, Nov. 27, 1919, League of Nations Treaty Series 1, 1919, p. 67. These treaties were registered with the League of Nations, and the Permanent Court of Justice decided several issues arising in the course of their implementation. See, for example, Advisory Opinion No. 17, Interpretation of the Convention between Greece and Bulgaria Respecting Reciprocal Emigration, Permanent Court of International Justice, ser. B, no. 17, July 31, 1990. This involvement of the League organizations in administering forced population exchanges only contributed to enhancing their international legitimacy.
In the wake of World War II, many East European countries also engaged in mass expulsions in an effort to homogenize their countries ethnically. These expulsions were not minor affairs. According to realistic estimates, 14 million to 15 million people were forced to relocate. See Alan Dowty, Closed Borders: The Contemporary Assault on Freedom of Movement (New Haven, CT: Yale University Press, 1987), p. 98. Most, but by no means all, of these people were ethnic Germans. Several East European countries agreed to exchange their minorities, and some of those agreements were carried out, at least partially. See Alfred M. de Zayas, "International Law and Mass Population Transfers," Harvard International Law Journal, vol. 207 (1975), pp. 225–26. Instead of condemning these forced population movements, the great powers condoned them. See Claude, National Minorities, p. 115.
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