A better plan for Kosovo

One of the most cherished principles of international law – the territorial integrity of states – is about to be undone as part of the latest Western attempt to cover up failure in the Balkans. The UN envoy to Kosovo, Martti Ahtisaari, recommends that Kosovo become independent. Despite the reaction of Serbia's moderate president, Boris Tadic, who told Mr. Ahtisaari that "neither Serbia nor I, as its president, will ever accept the independence of Kosovo," the Security Council will be asked to dismember a sovereign UN member state for the first time in its history.

Even though the Security Council has repeatedly reaffirmed the territorial integrity of what is now Serbia, Ahtisaari and his Western supporters have changed their minds. There are two possible explanations. The first is simply that Ahtisaari has taken the more politically popular position (at least in the West), ignoring international law in favor of pragmatism and completing the West's oversight of the disintegration of Yugoslavia. The second is that Kosovo's independence is justified as a means of punishing Serbs for the killings and mass expulsions that were unleashed against Kosovar Albanians after the beginning of the NATO bombing campaign against Serbia in 1999.

The first explanation would be difficult to challenge, if only earlier pragmatism had been more successful. Instead, the former Yugoslavia is now composed of six independent states, most of which are significantly more ethnically pure than before the wars. Nationalism has not disappeared, and Ahtisaari's assertion that "Kosovo shall be a multiethnic society" will not make it so.

The second explanation has greater appeal, since Serb forces did commit international crimes in Kosovo both before and during the NATO bombing. But it is based on only a half-truth, conveniently ignoring the fact that both Serbs and Albanians in Kosovo have sought to repress the other whenever they have had the power to do so. In the year before the NATO campaign, it is estimated that approximately 2,000 people were killed in Kosovo, mostly ethnic Albanians killed by Serbs. In the year following the NATO intervention, approximately 2,000 people also were killed in Kosovo, this time mostly Serbs killed by Kosovar Albanians. Both Serb and Albanian leaders have been indicted by the International Criminal Tribunal for the former Yugoslavia in The Hague.

Since the UN protectorate over Kosovo was created in 1999, there is little evidence that the Albanian majority in Kosovo is willing or able to protect the small number of Serbs who remain in the territory, most of them in protected enclaves.

What, then, to do? Rather than dictate separation, the only course consistent with both international law and long-term stability in the Balkans is to continue to press for a negotiated settlement between Kosovo and Serbia. Unfortunately, the one option that might encourage such a settlement is partitioning Kosovo, which has been inexplicably rejected by international mediators from the beginning. Partition is not without its problems, but it would serve the interests of both parties better than the all-or-nothing option offered by Ahtisaari.

Ceding the northern part of Kosovo to Serbia would enable most Serbs now in Kosovo to remain within Serbia, and it may be acceptable to Kosovar Albanians if it is part of a final settlement that includes full and unconditional independence. Of course, those Serbs who remain scattered throughout Kosovo would be at risk, but their small numbers would constitute a minimal threat to the new state. Ensuring that Serbs have access to monasteries and other holy places within Kosovo would encourage economic and other ties between Serbia and Kosovo, which all observers agree are necessary for Kosovo's long-term viability.

Conditions in the Balkans and the desire of diplomats to "do something" cannot justify overturning two basic principles of international law: territorial integrity and the nonacquisition of territory by force. Insisting on independence for Kosovo is likely to trigger a Security Council veto by Russia and/or China, which would raise the stakes and make the situation even more untenable. UN-mandated independence after an armed intervention by outsiders would embolden separatists everywhere. And denying statehood to other groups that have suffered at least as much (Kurds, Tamils, and Chechens, for example) would make a mockery of morality and consistency. Adopting the Ahtisaari proposal would mean that might makes right in the Balkans, and it would serve neither peace nor justice.

• Hurst Hannum is Sir Y.K. Pao Professor of Public Law at the University of Hong Kong and professor of international law at Tufts University's Fletcher School of Law and Diplomacy in Medford, Mass.