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Home EJIL Analysis Crimea: Does “The West“ Now Pay the Price for Kosovo?

Crimea: Does “The West“ Now Pay the Price for Kosovo?

Published on April 22, 2014        Author: 

There is a lingering sentiment on this blog (see the posts by Nico Krisch and Christian Marxsen) that “the Kosovo issue” has facilitated the blatant violations of international law recently committed by Russia with regard to Crimea (notably the unlawful annexation of that territory), and that “the West’s” behaviour in the Kosovo context now prevents clear condemnations and robust reactions towards these violations. That view has also been espoused elsewhere (see, e.g., Marcelo Kohen, “L’ Ukraine et le respect du droit international”, Le Temps, 13 March 2014 and Bruno Simma, “The West is hypocritical” (interview), Der Spiegel, 7 April 2014). The basic idea is that “the West” now pays the price for Kosovo, and that such a situation was predictable (and has been predicted) by those who now deplore it, and allows them to think (or even to say): “Well, we warned you from the beginning on, and this is now what comes out of it … so we were right”.

In this post, I would like to investigate the soundness of this position. We first have to ask what is meant by “the Kovoso issue”. Actually “Kosovo” refers to two events: not only to the sponsoring of Kosovo’s independence in 2008, but also to the possible unlawfulness of NATO’s military intervention of 1999. Both events were politically linked, and they concerned three different core norms of international law: the prohibition on the use of force, territorial integrity/inviolability of boundaries, and the self-determination of peoples.

In the Crimea crisis, all three norms are again at stake: Russia both relies on its right or even responsibility to intervene with military means to prevent human rights abuses committed against ethnic Russians and Russian citizens (humanitarian type /R2P-type intervention) and on the Crimean (or even Eastern Ukrainian) right to secession based on the right to self-determination whose exercise in Crimea led to a disruption of Ukrainian territorial integrity.

Did Russia abuse these norms? It did not abuse them in the technical sense of abus de droit. Abuse in its technical sense is present when a norm is being applied properly on its face, but with negative consequences which hurt the legal position of other actors, maybe unforeseen by the authors of the rule. This was not the case in the context of Crimea. So we are speaking of an abuse in a non-technical sense, more in the sense of distortion of facts and misapplication of norms (I will come back to this).

Generally speaking, the special character of the international legal system, namely the absence of a central authority to determine whether a rule really applied (or has been wrongly asserted), and the near-to-non-availability of robust sanctions requires us to be more vigilant towards the susceptibility to abuse of the norms of the system. So this is a problem of the international legal system at large.

This means that we should not favour international legal norms that are intrinsically easier or more prone to abuse (in that broad sense) than others. But are there norms which lend themselves more to abuse than others? Yes: Norms, which are so vague that they create large grey zones, or which have a lot of complicated exceptions, seem to be more prone to abuse than others. It is particularly difficult to tell whether they have been properly applied or whether they have just been asserted, although in reality they do not apply.

However, neither “humanitarian intervention” nor “remedial secession” is vaguer than typical norms of international law. They hinge on massive and persistent human rights violations, on the exhaustion of negotiations and on the failure of milder means. While there is of course a leeway when determining at what point these requirements are met (which type of human rights violations? How long must negotiations for a different solution been conducted, etc.?), this leeway is not unusually broad (in comparison to other norms of international law, e.g. most human rights provisions).

What is the alternative rule which the critics of “the West’s” behavior in Kosovo would have preferred to be upheld? It is the rule of strict state sovereignty, strict non-intervention, and strict territorial integrity, admitting neither a humanitarian intervention nor a remedial secession. But, importantly, this rule can also be abused (and has often been abused) by the territorial sovereign, by the government in power. Syria and Russia (with regard to Chechnya) are examples for this type of abuse.

Another point is that the argument of possible abuse is a purely formal one. Should this argument be allowed to override considerations of substance? A norm that is patently important, intuitively “right”, in conformity with the entire system of international law and accepted by all actors (such as the prohibition of genocide and the prohibition on the use of force) should – I submit – not be discarded simply because there is the possibility that one participant in the international legal system might fake facts and then (erroneously) apply that norm.

With regard to the Russian behavior in Crimea, three points merit attention. First, we must distinguish the fabrication of facts from wrong legal arguments. Russia to some extent distorted the relevant norms’ content (for example by misreading the ICJ’s Advisory Opinion in the Kosovo case and exaggerating its holding). The most important distortion is however a purely factual one. Russia claimed that there were widespread and systematic human rights violations of Ukrainians with Russian ethnicity which warrants secession and also Russian intervention. Because this is simply not true (as verified, e.g. by the Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights Situation in Ukraine of 15 April 2014), the norms on which Russia relied did not apply. This was not a question of their vagueness or inconsistency.

Second, Russia did not respect the proper legal procedures. Even if the facts − which the Russian media had basically invented − had existed, Russia would still not have been entitled to intervene with military means to support the organization of an uninformed and unfree referendum which led to the territory’s request for joining Russia and the subsequent redrawing of state boundaries.

Third, Russia does not display any opinio iuris supporting a remedial secession of groups who are grossly discriminated against and politically maginalised, because it consistently denies this allowance to groups (e.g. Chechnyans) within its own state. This shows that the government’s reliance on legal arguments is not guided by any legal conviction but is purely strategic.

Does it matter, for our assessment of Russian action in Crimea, whether the NATO intervention in Serbia in 1999 without any Security Council mandate had been illegal, and Kosovo’s secession, too? Scholars’ and politicians’ opinion about the lawfulness of the intervention is divided. I tend to view it as a humanitarian intervention, exceptionally tolerable on higher grounds. A well respected expert report qualified it as “illegal but legitimate” (The Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (OUP, Oxford 2000), at 186).

The legal qualification of the Kosovo secession is again a different matter. Even if the Kosovo intervention is deemed unlawful, this was too remote to legally taint the Kosovar declaration of independence of 2008. The consent of Yugoslavia (Serbia) to resolution 1224 and the ensuing legal framework erected a legal firewall between the prior possible violations of the prohibition on the use of force and the Kosovo secession nine years later. So the secession must be assessed on its own merits. I tend to qualify it as a “remedial” secession which was exceptionally justified on account of blatant human rights violations, political marginalisation, persistent denial of internal self-determination of Kosovar Albanians, and as the only way out of a stalemate.

Even those who accept the legitimacy or even legality of the NATO intervention and of the secession under international law must admit that this was not a clear case, but a hard one, bordering on illegality and/or constituting a development of international law. The “non-precedence-talk” by Western actors can halt such a development – if at all – only to the extent that it prevents the ascription of an opinio iuris to those actors. However, the acknowledgment that there was, at those points in time, probably no clear-cut rule, but only one-in-the-making, does not absolve us from making proper legal distinctions. And the common wisdom that the interpretation and possible development of international law is (inter alia) guided by political, including geo-strategic, interests, does not absolve us from this either.

On the contrary premise that either (or both) the Kosovo intervention or the Kosovo secession was illegal, we indeed have a problem of credibility. Actors who breached the law in a previous case sound hypocritical when they point their finger to another actor’s violations of the law. This is not only a matter of politics, but raises the legal problem of double standards. Applying double standards is extremely pernicious for the rule of law and fairness. One of the core elements of the rule of law is the principle that like cases must be treated alike. However, the principle of equal treatment can not apply in the realm of unlawful behaviour, because this would condemn the supervising actors to perpetuate unlawfulness.

Also, the principle of tu quoque does not apply to serious violations relating to norms on the protection of the human person (cf. the expression of this principle in Art. 60(5) VCLT) – and these are (inter alia) the ones at stake here.

All things considered, even if the Kosovo intervention and/or the Kosovo secession were unlawful (a view which I do not espouse), this would not “undo” in any way the unlawfulness of Russian action.

A final observation: Does it matter whether a legal norm is prone to abuse specifically by powerful players, and does it matter how great the temptation and probability of such an abuse is? From a formal legal point of view, no. The formal rule is the principle of state equality. All states are in an equal way obliged to respect international law, which means that all states are legally prevented from fabricating facts and wrongly applying norms to those facts. That other participants in the system will hesitate to criticize and sanction a powerful law-breaker does not alter this principle.

From a legal policy point of view, these factors may of course be taken into account. However, lawyers should not, in an act of anticipating resignation towards power politics, refrain from upholding the rule. It is their job to do that, because others will do the rest anyway.

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11 Responses

  1. Duncan French

    Great post as always…I just find the “exceptionalism” argument of Kosovo, which is perpetuated to some extent here, unfortunate and rather Euro-myopic. Of course, Russia should not use the “Kosovo issue” to justify Crimea. But in our non-hierarchical system, where little weight was given to the G77 statement against humanitarian intervention, what has Russia to be concerned about from the legal argumentation of others?

  2. Kushtrim

    Great post. Even assuming that the West had to pay a price (a view which I also do not share), the question is for how long one can employ the “theory of debt”. One should not forget that the same argument was utilised during South Ossetia and Abkhazia crisis. The developments in eastern Ukraine should not be neglected.
    On another note, Putin has recently argued that NATO enlargement prompted Russia’s move in Crimea. It remains to be seen whether the West will also have to pay for the EU enlargement policies in the region.

  3. Joost

    Liebe Anne,

    First you say that NATO intervention “was too remote to legally taint the Kosovar declaration of independence.” Then you say that Kosovo independence was “exceptionally justified on account of blatant human rights violations” against Kosovar Albanians.

    Now my question is: at the time Kosovo declared independence, weren’t the “human rights violations” as much in the past as NATO intervention itself? Why could events that are “too remote” to taint Kosovo independence be now relied to make the case for “remedial secession”?

    You, who are a very charming woman, don’t you think this again raises the question of double-standards?

  4. Jordan

    AND Russia did not have Article 52 of the U.N. Charter on its side. The NATO authorization of “regional action” in accordance with U.N. Article 52 when the U.N. S.C. was veto-deadlocked and could not authorize or control “enforcement action” per Articles 42 or 53 made the NATO authorized intervention into Kosovo recognizably lawful under the U.N. Charter.See, e.g., 34 U. Pa. J. Int’l L. 431, 435-440 (2013) (also addressing “regional action” by the O.A.S.), available at http://ssrn.com/abstract=2272291
    I agree that there also is no significant evidence of human rights violations in Ukraine of such a level as to raise even the issue of “humanitarian intervention,” whether or not such would be permissible in view of the three (only three) forms of armed force that are proscribed in Article 2(4) and/or is permissible under a developing CIL.

  5. Veronika Bilkova

    Thank you, Anne, an interesting post as always.

    I agree that a state cannot in principle justify its own unlawful act by an unlawful act committed previously by another actor, in a completely unrelated scenario (well, the state could try to argue that its act is part of he same evolution aimed at changing customary law as the previous one. But as far as I know, noone has made this claim in the Crimean context).

    Yet, is it not possible to doubt the sincerity of actors who accept the results of an unlawful act, when it is carried out by a friend, but express supreme moral outrage, when a similar act is carried out by a non-friend? That is how I read the “Paying the price for Kosovo” argument – for me, it is moral and political rather than legal. And it certainly cuts both ways, as Marko showed in his post.

    Joost asked the question that I was also wondering about. Why is it that one event from 1999 is fully irrelevant for the legal assessment of what happened in 2008, while another event from the same year can in your view serve as the legal basis of the latter event?

    I am also not convinced by Jordan´s argument about Chapter VIII. Even if we accepted that the NATO is a “regional organization” under Chapter VIII (not a self-defence one under Article 51), there would still be a question whether Chapter VIII entitles “regional organizations” to use force: a) without the UN SC authorisation; and b) outside their region (FRY was not a member of the NATO in 1999).

  6. Jordan

    Veronika: regarding NATO, please see the article regarding NATO’s perceived role. I assume that you would agree that the O.A.S. and, perhaps the League of Arab States, woould fit easily into the UN Article 52-53 matrix, which is just as much a part of the U.N. Charter as Articles 39, 41-42 and 51. Perhaps Russia should stop annexing foreign state territories and prefer that they are independent states and join a new regional organization that can authorize Russian adventurism!
    Note that NATO engaged in military force in Libya as well as in Kosovo. Why woould a regional organization that can authorize “regional action” be limited to threats of force and aggression, etc. merely occurring within its region if the threats and aggression impact in the region?
    Might NATO authorize the use of armed force in response to Russian threats to NATO countries, if not re: Ukraine?
    Should humanity be unable to respond to aggression because the Security Council is veto-deadlocked? because an aggressor is a permanent member of the Security Council (and has a “free pass”)?
    Should humanity sit by and watch genocide and other crimes against humanity escalate in a country merely because the Secutiry Council is veto-deadlocked?

  7. Veronika Bilkova

    Jordan: first of all thanks for the article that I will read with pleasure.
    a) I personally see a difference between the NATO and the OAS/LAS, though I admit that organizations may evolve in time and change their nature.
    b) Articles 52-53 are certainly as much part of the UN Charter as Articles 39, 41-42 and 51 (and many other provisions). Yet this does not mean that they entitles regional organizations to use force as they like. After all, Article 53 is quite clear in stating that “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council”. This provision can certainly give rise to criticism but it is there.
    c) The military action in Libya war authorised by the UN Security Council under res. 1973. So it is a different story than Kosovo.
    d) “Perhaps Russia should /…/ join a new regional organization that can authorize Russian adventurism!” Well, Russia is already a member of the CIS, in whose activities, moreover, Ukraine has occasionally participated (though it is not a de iure member). Despite that, I would not claim that the CIS can “authorise” Russia to use force in Ukraine. Would you?
    e) “Might NATO authorize the use of armed force in response to Russian threats to NATO countries, if not re: Ukraine?” I do not think, NATO can “authorise” any use of force at all, in the sense in which “authorisation” is normally used with respect to the UN SC. It can certainly act in collective self-defence, if one of its members is attacked and also if it is (or, rather, its members are) asked to come to help to a non-member attacked by another state. But that would be a classical Article 51 (not Articles 52/53) scenario.
    f) It is interesting how “the NATO” in one paragraph turns into “humanity” in the next one.
    g) The dilemmas you raise in the last two questions are obviously very strong in emotional terms (in this sense, they leave only one legitimate answer, which is why they are asked in the first place…). Yet, you seem to suggest that those who abhor aggression, genocide and crimes against humanity (and who would dare not to…) automatically have to accept the instruments you suggest(“authorisation” by the NATO etc.). And that, moreover, they need to agree that these instruments are applicable, and should be applied, to the current Russia/Ukraine case. I share the abhorrence for aggression, genocide and crimes against humanity (but again, who would not) but I have my doubts about the other points.
    But this is of course only my personal position. Humanity might see it differently.

  8. Jordan

    Thanks Veronika. I did not mean to be harsh in any way with respect to your claims (just chatting more generally and perhaps harsh re: Russia’s conduct), and I apologize if any of my remarks were taken elsewise. The last two questions were not meant to be tied merely to a NATO authorization or “regional action.” More generally, I would like others to consider the possibility of “regional action” authorized by the O.A.S., the O.A.U., etc. to counter genocide and other crimes against humanity when the S.C. is veto-deadlocked. I note that in your part (b) above that you recognize the phrase “enforcement action” with respect to Article 53. One of my general claims in the article is that an Article 52 “regional action” is different than a S.C. authorized “enforcement action” — something to consider in view of the obvious textual differences and policies at stake.
    Regarding your “(c)” my point is that NATO was operating outside of Europe as NATO (and apparently no one thought that NATO’s actions were ultra vires), but, yes, you are correct that NATO operated under a S.C. authorization.

  9. […] Crimea: Does “The West“ Now Pay the Price for Kosovo? […]

  10. Nikolai Topornin

    Dear friends,

    There is a big difference between Kosovo and Crimean case. Crimea from 1784 was an integral part of Russia, the 3/4 of its population are Russians, the transfer of Crimea from Russia to Ukraine in 1954 from the very beginning was illegal (it was violation of Soviet constitution). Crimea has nothing in common with Unkraine, this is the truth. When Unkraine separated from the USSR they should have gone without Crimea or at least ask Crimeans about their choice. That wasn’t done. From russian point of view Ukraine occupied Crimea and return or Crimea to Russia in 2014 is just a restoration of historic truth. Indeed we may crtisize the juridical aspects of how it was arranged (referendun etc) but there is no doubt that in its essense it is a right thing.
    International community paid attention only to violation of territorial integrity principle, however the case is not such simple as it looks. When BRD re-united with DDR nobody argued it because historic truth was restored. When Crimea united with Russia – there are sanctions. This is double standards approach, isn’t it?
    I just call you to examine the case with all the details and in full complexity and not to simply follow ambigous political lines which go to the era of “cold war”.

  11. […] There are limited grounds for using force against another state, all missing here: authorization by the United Nations, self-defense, or invitation. No, no and no: Russia didn’t even bother arguing the first two, and the treaties it signed for its Black Sea Fleet’s bases certainly didn’t allow Russian troops to roam free. The only other justification – humanitarian intervention or R2P – looks totally pretextual; there was no evidence of threats to Crimean Russians that would meet the high threshold that doctrine requires. If we have to argue about whether or not Kosovo met the standard, there is no way Crimea or even eastern Ukraine could. […]