Why Crimea is not Kosovo – a follow up on The Kosovo Precedent

A follow up to The Kosovo Precedent and to answer the many questions about the relevance of the Kosovo Precedent to the case of Crimea.

The Kosovo Precedent in its legal component does not apply to Crimea and its democratic decision to secede from Ukraine and join the Russian Federation as part of Russia for the following reasons (see also Crimea’s peaceful struggle for independence):

1. The ruling on the Unilateral Declaration of Independence of Kosovo applies to regions of countries which have no Constitutional provisioning for a seceding process or are bound by a Constitutional body which would demand a majority ruling of the entire country without reflecting the regional interests and cultural backgrounds as is the case with the Ukrainian Constitution. The Autonomous Republic Crimea did and does have a ratified Constitution which does provide for the democratic process of referendum to change the state of the Republic and does authorize the parliament of the Autonomous Republic Crimea to initiate such process.
2. The Autonomous Republic Crimea was prior to its occupation by Nazi Germany and its Allies during World War II, a Soviet Republic and as such the Autonomous Republic Crimea was already entitled to decide on its own future by the means of referendum under the Soviet Constitution as well as the Soviet decree by which other Soviet States were entitled to hold such referendums which let to the breakup of the Soviet Union.

In short, Crimea was already provisioned for this process by its ratified Constitution and confirmed status as (former) Soviet Republic whereas Kosovo did not have such provisioning to which the “Kosovo Precedent” applies. But as explained in my previous post, there is more to the Kosovo Precedent: the use of military force by a foreign nation.

The Kosovo Precedent and what it means for Donbass and the rest of the world!

A Precedent is in most legal systems a binding ruling by an authorized Higher court which sets a framework for future cases with identical or at least very similar conditions and circumstances. Most published Precedents consist of the ruling itself and a detailed explanatory annotation to how and under which conditions this ruling should apply to future cases. A formal Precedent is seen as the application of the applicable laws and rules to a particular combination of conditions and circumstances. In future cases, the parties involved can plea to have this Precedent applied to the case at hand, or of course, argue that conditions and circumstances differ to the extend that this Precedent should not apply to this particular case.

In principal, a Precedent is valid until it is either overruled by a higher legal authoritative institution or when a Precedent is developed which specifies further conditions and circumstances to which it should apply. Depending on the legal system, the authoritative value Precedents can vary but most countries only accept rulings by Higher Courts as binding authoritative Precedent, referred to as Case Law. Rulings by Lower or Common Courts can be applied to similar cases but have no binding authoritative value, meaning that they are not binding for the Courts.

Beside the legal way of creating and applying Precedent Rulings and Cases, there is also the practical variation of Precedent Cases. In such practical Precedents, there is no actual ruling by a Court on the particular case. What is referred to as the Precedent is the mode of operation, actions and activities or lack thereof by a certain party under certain circumstances and conditions which would, following the principals of the Legal application of Precedents, also apply to other parties which conducted in the same manner and under the same or similar conditions and circumstances. Although such practical Precedents are not documented and annotated, it is common practice to argue that when Party A can or can not, then Party B can or can not as well under the same conditions.

What is commonly referred to as the “Kosovo Precedent”, actually consists of 3 components:

1. The advisory opinion on the Unilateral Declaration of Independence by Kosovo by the International Court of Justice.
2. The practical Precedent created by the deployment and use of foreign military force to implement the Unilateral Declaration of Independence by Kosovo.
3. The practical Precedent created limiting the jurisdiction of the responsible Tribunal to the native forces, individuals and authorities involved in the conflict and thereby excluding the foreign forces involved in the conflict from the jurisdiction of the responsible Tribunal.

The Odessa Massacre – How History repeated itself!

When Nazi-Germany attacked Europe, it had clearly separated strategies for Western Europe and Scandinavia on the one hand and Eastern Europe on the other hand. The Western European Nations were to be conquered and submitted under the rule of German Supremacy and cleansed of all unwanted populations, the so called “subhumans”. The strategy of Nazi-Germany for Western Europe and the Scandinavian countries was based on the believe that the population would rapidly accept the German rule and the Arian-supremacy. For Western Europe and Scandinavia, Nazi-Germany set out these objectives:

• Cleans all countries of unwanted “subhuman” population.
• Submit France, Belgium, The Netherlands, and Scandinavia in a Blitz-Krieg and place these countries under German ruling with focus on acceptance of being part of the 3rd Reich.
• Defeat England within 6 months.

For Eastern Europe, Nazi Germany set out an entirely different strategy. Eastern Europe was what Nazi-Germany considered “Lebensraum”, badly needed place to extend the 3^rd Reich eastwards and benefit from its fast agricultural potential, resources and workforce. After concurring the Eastern countries, the intention of Nazi-Germany was to have the Slavic race serve the Nazis as labor force. Hitler and his likes determined that to submit the Slavic populations and countries, they would have to achieve the following major objectives:

• Cleans Slavic countries of unwanted “subhuman” population.
• Reduce the Slavic population to the required amount as workforce.
• Defeat the strongest opponent in Europe: The Soviet Union.

These different objectives explain the brutality with which Nazi-Germany and its Allies operated in Eastern-Europe and the parts of the Soviet Union it conquered in the first year of their eastbound quest. The further east the Nazi-German troops wend, the harder the unbridled brutality against the population became, reaching the climax in Poland, Ukraine, Belarus and Russia. And puzzling in any way imaginable, the further east the Nazi-Germans and Allies conquered countries, the stronger the propaganda of “liberators from the Soviet Union” seemed to work. Especially in Western-Ukraine, the Nazi occupiers were welcomed and millions joined the armed forces as volunteers.