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: _________

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Table of Contents

Abstract……………………………………………………………………………………………2

Introduction……………………………………………………………………………………..3-8

Background…………………………………………………………………………………….8-32

Methodology………………………………………………………………………………….32-40

Analysis………………………………………………………………………………………40-54

Conclusion……………………………………………………………………………………54-56

Bibliography………………………………………………………………………………….58-61

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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.

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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. HaaretzBremmer, 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 Atlantic2Edwards-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.

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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).

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

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, 201511 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..13 Reuters. 6 April, 2015. Obama: Nuclear Deal Does Not Depend On Iran Recognizing Israel.

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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 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;

14 Ravid, op cit.15 Many examples of this will be discussed in the evidence presented in later sections of this study16 See:“The Declaration of the State of Israel” 1948“the Declaration of the state of Kosovo” 2008The evidence of this will be discussed extensively in later sections17 Erebara, Gjergj 29 June 2011 “Israel Dismisses Talk of Recognizing Kosovo" Balkan Insight. Web. Accesed 7 May 2015.

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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.

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

18 The evidence of this will be discussed extensively in later sections

6

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

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.

19 The Ministry of Foreign Affairs of Israel 159. Cabinet communique on Foreign Minister Sharon’s visit to Russia- 11 April 1999. As a matter of fact, Israel has proposed itself as a possible mediator between Russia and Ukraine. See Lazaroff, Tovah. 27, Jan. Liberman Ready to Mediate between Russia and Ukraine 2015 Reuters20 Tanjug, Interfax. 8 May 2015. Serbia Won’t Recognize Kosovo, President Reiterates. B92.net21 Van Crevland, Martin. 2013. Kenote Speach “The Balkans and the Middle East are they mirroring Each Other?” Peja/Pec conference Kosovo 2013.

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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.

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

22 Human Rights Watch. 26 October 2001. Under Orders: War Crimes in Kosovo: In-Depth Report Documents Milosevic Crimes.23 The Ministry of Foreign Affairs of Israel 159. Cabinet communique on Foreign Minister Sharon’s visit to Russia- 11 April 1999

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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

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 24 BBC. 21 July 2006. Suez Crisis: Key Players. .25 The Ministry of Foreign Affairs of Israel 159

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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

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?

26 Charter of the United Nations Articles 2 (4) and 24 27Fisk, Robert. 2014 Ariel Sharon The Independent. 28 Security Council. 1999. Press Release SC/6659 3989th Meeting (AM) 26 March 1999

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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 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

29 Reuters 17 Feb. 2008 Serbia Condemns Breakaway Kosovo as ‘False State. Print.

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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

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

30 International Court of Justice Advisory Opinion of 22 July 2010: ‘Accordance with International Law of 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.33 Term addressed in the methodology

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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

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.

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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

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

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 Albanians who were mass executed is still growing as graveyards are still being uncovered years later see:36 Johnson, Mark. 2002. Law Incarnate Brooklyn Law Review Vol. 67 Number 4. Pg 95137 BBC News. 28 July 2010. Kosovo Serbia Border Post Set Alight. Web. 18 Aug. 2015.

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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

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 38 Kosovothanksyou.com39 Ministry of Foreign Affairs of Kosovo. 2010. Kosovo Calling

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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 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 40 BBC News Kosovo declared 'fully independent' 10 September 201241 Interfaith Kosovo. 2013. Kosovo Jewish Week 2013.42 Garland, Geneva. Feb 1 2012. The Jewish Community of Kosovo. Interfaith Kosovo.

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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.

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”; 43 CNN. 29 March 1999. NATO, British leaders allege 'genocide' in Kosovo.

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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

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

44 Human Rights Watch “Failing Darfur; Entrenching Impunity Government Responsibility for International Crimes in Darfur IV. Ground Forces of Ethnic Cleansing”6: IV.45 For more on the subject of the holocaust as a legal basis for the understanding of 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.

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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,

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 46 Newcomb, Steven T. 2008. Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery. Golden, Colo: Fulcrum Pub. Print. 47 This will be explained in the methodology section of this paper in the work of Steven Newcomb.

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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.

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

48 Ball, George W. 1980. The Coming Crisis in Israeli-American Relations. Foreign Affairs. Web. 13 July 2015.

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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

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

49 “Basic Laws – Introduction” 2003 http://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm50 Herzl, Theodor. The Jewish State. First. United States of America: White Dog Publishing, 2010. Print. 51 Ibid.

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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

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. sourcing Sami Hadawi, Village Statistics 1970

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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 Palestine vol III annex A Oral Evidence Presented at Public Meeting Lake Success 4 July, 1947 http://unispal.un.org/UNISPAL.NSF/0/7735B7DC144807B985256E8B006F4A7156 “Basic Laws – Introduction” 2003 http://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm

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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. Challenging ILA Policy of Tenders Open Only to Jews for Jewish National Fund Lands.59 Ibid.60 According to the right of return law 5710-1950: 1. Every Jew has the right to come to this country as an oleh**. 2. (a) Aliyah shall be by oleh's visa.

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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.

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“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

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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 199966 Percy at 32:40

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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 According to the peace negotiations, Serbian majority provinces in Kosovo have the right to participate in 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

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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

opposed to the Israeli and Serbian idea of the collective realization of rights, and collective ideas

of guilt and innocence. 70 Law on Special protective zones 2008/03-L039 http://www.kuvendikosoves.org/?cid=2,191,24871 Kostovicova, Denisa. 2005. Kosovo: the Politics of Identity and Space Routledge.

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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

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 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.

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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

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

74 Reuters. 18 Aug 2015. “Iran Plans to Sign Contract for Russian S-300 Missiles next Week.” Web. Accessed 18 Aug. 2015.

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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

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

75 Winter, Steven L. 2003. A Clearing in the Forest: Law, Life, and Mind. University of Chicago Press, Print.76 Winter: 2003, 70

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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

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

77 Ibid.

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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

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

78 See background and Rosenberg and Selina79 http://2001-2009.state.gov/g/drl/rls/rm/2001/4486.htm

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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

perpetrated by “un-humans”80 as based in the example of the Nazi of the Holocaust. I make this

80 This definition is obviously not implying that Nazism should be devoid of responsibility or agency for its crimes before and during WWII.

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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

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

81 University of Virginia School of Law. 2015. Scalia Defends Originalism as Best Methodology for Judging Law..

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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

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

82 Prucha, Francis Paul. Documents of United States Indian Policy. U of Nebraska Press, 2000. Print. Pg. 22

37

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.

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

83 Minnesota Historical Society. 1908. Minnesota Historical Society Collections. Print. Pg. 43

38

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

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

39

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.

“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

40

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

under the 1950 Law of return or “Right to Aliyah”. In Kosovo, citizens of both ethnic Albanian

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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 involving the property restoration of both Serbs and Albanians see: http://www.kpaonline.org/SearchSC/frmSearch.aspx 85 Ibid.

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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

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“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.

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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 5:4090 Percy. Part 1 at 1:20

45

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 :4592 Percy. Part 2 at 1:40

46

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 3:1394 Percy. Part 2 at 3:33

47

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.

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perpetration. If one understands themselves to be human, and this specific kind of evil to be “un-

human” then there is no cognitive model available to comprehend these acts—the model is

flawed.

Serbian nationalism is also defined by this binary idea of categorization of human behaviors.

Like Eichmann in Jerusalem, Milosevic in The Hague displayed an inability to comprehend his

own evil. As Arendt observed in Eichmann having an “inability to think for himself” and

deferred to the thoughts and orders of a hierarchy of the Nazi party state authority; Milosevic

fashioned himself as a mere conduit of the thoughts of the Serbian Nationalist masses and

attempted to exonerate himself by exonerating the collective.

“You claim that I had some sort of magical influence over the people and manipulated them, whereas I was only their mouthpiece. Accusing me you are accuse the Serb Academy of Sciences and the two million people who listened to me at Kosovo Polje; you accuse the elite of our intelligentsia. And all the Serbs in general.”96

Milosevic challenged the court’s jurisdiction over him with the idea that he could not be tried as

an individual for the crimes committed “accusing me you are accusing all of Serbia”. He

maintained that his actions were never outside of the dictates of the established law.

“All the changes we made to the structure of Serbia were implemented using perfectly legal means. We followed the proper procedure.”97

Milosevic justified his actions that victimized others in the same manner that he was making a

constant comparison to the entire premodern narrative of Serbian victimization. He was

articulating the Serbian Nationalists feelings of discrimination being merely in a demographic

disadvantage from the “other” the idea that demographics can in itself be a threat is based in the

deep belief that both Serb and Jewish Nationalists hold that the “other” is innately the enemy.

96 Vaksberg, Tatiana. 2002. Milosevic Between Crime and Punishment. East European Constitutional Review 11 (3).97 Percy. Part 4 at 2:20

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This is best illustrated by the example of a conference I attended in Kosovo entitled “the Balkans

and the Middle East: are the Mirroring Each other?” held at the Patriarchate of Pec October 14th-

15th 2012

This conference was hosted by the Office of the Kosovo and Metohija Committee of The Holy

Assembly of Bishops of the Serbian Orthodox Church (SOC). This is the office that holds the

ownership of the land for the state of Serbia in Kosovo, therefore it is a reflection of the State

through its religious wardens. The monastery where it was held is deemed by the Ahtisari plan to

be of cultural and spiritual importance for Serbia and therefore a “Special Protective Zone”. To

Serbia, this is sovereign land. While the conferences title advertised it to be a comparison of two

regions, it only included either Israeli or Serb representatives.

Martin Van Crevland, a renowned Israeli war historian, faculty of the Hebrew University of

Jerusalem was the key note speaker of this conference. In his speech Van Crevland elaborated on

what he thought Serbia could learn from Israel, and that was that they were both victims of the

Muslim world and that isolationism was the only alternative.

Van Creveld’s main thesis on security is isolationism is the best policy "build a wall, keep the

animals out and to hell with the rest."98 He is not a moral entrepreneur who engaged in the debate

of the ethical supremacy of the victim, he is a strategist who's admits to the sole interest of his

own ethnicity, which he considers to be as one in the same as human nature itself.

MVC-“We build a wall and to hell with the rest. We use the hammer to quiet the outside, we learned that in 2006 with Lebanon, now it is quiet at that boarder for 6 years.”

Me-“But if that is what you want is that sustainable? How do you know it is not the quiet before the storm and you will see a reaction in response to your aggression that is even greater? The only factor to aggression that has been discussed at this conference is Islam, there was no awareness of factors like poverty and disenfranchisement that

98 Key Note Speech.

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inspires aggression. You talk about the intellectual architects of your opponent without looking at the factors that expand the recruitment pool that amount to the strength of his force, the politics of bread. The mass of forces are the underclass who are disenfranchised by your policies and join Hezbollah because they give them bread and promise to avenge them. Can you ever build a wall high enough to combat the aggression you antagonize on the outside?”

MVC- “You have a point my friend, these are legitimate factors that contribute to war, but it will be a waiting game, how long will it take for the wall will be high enough for them to not to have contact, and see each other, not make faces from across the fence, and get used to the idea.”

Me- “Does a prisoner ever get used to the idea of being in jail? And can you build a wall high enough to keep out a nuke?”

MVC-“Yes he does, and if that happened then we don’t have anything to worry about because it will all be over, and if that is the case we are taking half the world with us.”

Me- “Well I don’t want to be in that half you are dragging down.”

MVC- “I can see this is true, we both have our objectives defined then, I am an old man and you have more time in your life to prove your theory, at least before any of this were to happen.” 

The former the Serbian ambassador to Turkey and current faculty in the Philology department of

the University of Belgrade, Darko Tanaskovic, concurred with Van Creveld on the point of

“Ottoman mismanagement” and went further in his address claiming a “neo-ottomanist” doctrine

that was being implemented under Turkish influence.

Former head of the Israeli Defense Forces (IDF) Military History Department and former deputy

head of the National Security Council of Israel, Col. Shaul Shay, referred to the emerging youth

movements in the middle east commonly known as “the Arab spring” as “the Arab tsunami”

calling it a “crossroads in history and the road the nationals involved take will determine our

future.” He urged the Serbian Nationals in the room to stand firm against the tsunami.

“The Islamic World is not ready to absorb the basic values of modernism and democracy, nor does acceptance of basic Western structures imply democracy.”

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Tanoskovic presented a clear comparison of Serbia and Israel in their similarities being:

1. Permanent Turmoil, 2. Difficult Neighbors, 3. Difficult Position and 4. Victims of Neo-

Ottoman colonization. The differences between the two according to Tanoskovic are 1.Serbia is

less developed then Israel 2. Serbia cannot practice isolation tactics such as Israel can 3. In his

words "We don’t have use of the hammer as Israel does, even legally when we try the hammer

lands on top of our heads." 

Srda Trifkovic presented an article he had written for the Jerusalem Post. The main problem was

in dealing with the dominant Muslim demographic.

“In both cases there’s a small piece of disputed real estate – rich in history, poor in everything else, and badly mismanaged by the local Muslim majority chronically hostile to its non-Muslim neighbors. In both cases that majority craves internationally-recognized statehood, and in both cases the demand is based on a bogus claim of distinct nationhood (“Kosovar” or “Palestinian”) that conceals the broader expansionist agenda – greater- Albanian and Palestinian Arab-Islamic, respectively.”99

And yet, Kosovo’s state officials persist in courting Israel’s favor, and offer it as an example for

its people to model ideas off of as a successful state that emerged after genocide.

While there are differences aplenty between Israel and Kosovo, the notion of being a “Start-Up Nation” with uncertain borders, oppositional neighbors, and a painful national past may well provide the basis for future collaboration. In the meantime, the love of many Kosovars for Israel seems well-established (Kosovo Foreign Minister Enver Hoxhaj, September 29th 2013)

It is also a model that the people of Kosovo strive to emulate. In the words of US rabbi Joshua

Stanton:

At the Conference on Faith and Reconciliation that I took part in, I asked fellow participants why it might be that Kosovars had such a strong (and positive!) reaction to me as a Jewish person. A couple of

99 Trifkovic, Srdja. 2012. “US Kosovo Policy – Bad for Israel.” The Jerusalem Post, 2–13.http://www.jpost.com/Opinion/Op-Ed-Contributors/US-Kosovo-policy-bad-for-Israel.

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diplomats explained that the role of key Jewish officials in the Clinton Administration in deciding to intervene on behalf of Kosovars accounted for a good part of it…. why was it that many Kosovars loved Israelis so much?...More than anything else, many Kosovars see themselves as having a similar national story as Israelis. Facing the possibility of genocide or ethnic cleansing, Kosovars seemingly miraculously emerged with a country of their own.”100

Yet at the same time Kosovo’s definition of the state itself, especially in its ideas of collective

versus individual rights and culpability, are in opposition. During his speech at the

Holocaust memorial event, the Prime Minister of Kosovo Hashim Thaci spoke

to this distinction.

“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.”101

This statement of Thaci’s is in direct conflict with the Serbian and Israeli idea of collective rights

and culpability.

Russia, Serbia’s closest ally maintains the same justification of its acts of violence in the Ukraine

as a “protective force”, also using the language of human rights and also holding up its perpetual

victimization as a competition to neutralize its own acts of perpetration. This is why Israel

supported them in the operation to the dismay of the U.S. State department. As well as why

Israel persists in supporting Serbia in not recognizing Kosovo, a state that was built by the brawn

and steel of NATO. It has much less to do with who is financially contributing as it does who has

the fundamental differences in how they see what makes a state, a state.

100 Stanton, Joshua. 2013. Why Kosovo Loves Isreal.101 Interfaith Kosovo. 2013. Prime Minister Thaçi's Speech - Holocaust Commemoration Event.

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Conclusion

Newcomb identifies the point of entry into the law where the metaphor of the discovery doctrine

becomes common practice in Johnson vs. McIntosh. The impact of that metaphor became the

legal mechanism that was used to disenfranchise the Native American people from their land and

livelihoods. The moment in which the perpetual victim metaphor enters into the law for Serbia is

the Ahtisaari Plan, which is also the document that underscores the difference in the

understanding of sovereignty between Serbia and Kosovo. Serbia's idea of ethnic statehood is

ratified by the international community in this document through its implementation by the

United Nation’s Interim Administration Mission in Kosovo (UNMIK) and the Organization for

Security and Cooperation in Europe (OSCE). Kosovo’s cognitive model of sovereignty enters

the law in the property return cases in the KPCC. The Ahtisaari plan expresses Kosovo’s idea of

sovereignty and at the same time is held to concede on the conditions of the Serbian model

which claims ethnic sovereignty within Kosovo’s borders.

The metaphor of perpetual victimization enters into Israeli law in the declaration of

independence, the Laws on Basic Human Rights and Dignity and the Supreme Court’s decisions

on the use of article 8 of the Basic Law which claims a priority of rights for its ethnic sovereigns

within and outside of its borders. 

These two kinds of constitutions cannot co-exist in a diplomatic partnership without eventually

entering in conflict. The impact of differences in the fundamental ideological concepts of the

statehood can be seen in the growing unrest in Kosovo for the continued concessions negotiated

by the government of Kosovo with Serbia. Protesters argue that the concessions to Serbian ethnic

minorities give too much power to their former oppressor.102 More importantly, a growing

102 ABC News. 2015. Kosovo Police Arrest Opposition Leader for Parliament Unrest November 28.

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faction of these protestors are demanding to hold a referendum marked by ethnic nationalism,

calling for Kosovo to merge into Albania in what would be a greater Albanian state.

The growing inability for the US and Israel to work in partnership originates in the same

conceptual differences. The impact of these differences is evident in Israel’s growing defiance of

the US in their settlement activity and their military operations in the occupied territories. More

importantly in Israel’s growing support for Russia in their use of military force in Ukraine and

Syria103 that have damaged NATO assets. These recent actions have reinvigorated the divisions

of the cold war, however this time America’s ally Israel is on the other side of the iron curtain.

The idea that the only alternative to the victimization of a group is the creation of a state should

be challenged. The entitlement of an ethnic collective above others to a set of political rights in

that state should be challenged. Past victimization should not be recognized by the international

community as a legal argument for acts of aggression to another group as evident in the misuse

of the law which denied human rights to Albanians, and currently to Palestinians, and is

responsible for the precarious conditional sovereignty of Kosovo. Serbia will persist in their non-

recognition of Kosovo, Israel and Russia will continue in supporting Serbia on this ideological

line that divides them further with the United States and NATO.

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