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:
- The advisory opinion on the Unilateral Declaration of Independence by Kosovo by the International Court of Justice.
- The practical Precedent created by the deployment and use of foreign military force to implement the Unilateral Declaration of Independence by Kosovo.
- 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.
Precedent on the Unilateral Declaration of Independence by Kosovo
In its advisory opinion, the International Court of Justice, a binding authoritative Institution for all members of the United Nations, the ICJ came to the conclusion that the UDI of Kosovo is not prohibited by International Laws or Treaties and thus is to be accepted by the international community and the members of the United Nations. This Precedent on UDI in relationship to Kosovo has far reaching implications for all countries which have either internal disputes between regions and ethnic population groups or, as is also the case in Ukraine, have historical roots which are not reflected in the current territorial environment and constitutional instruments. Especially in such cases as we have seen in the former Yugoslavian Republic and see now in Ukraine, the ICJ explicitly ruled that a UDI is an applicable instrument to declare independence and form a new state within the boundaries of an existing state.
As argued in an earlier post (The road to independence), such Unilateral Declaration of Independence and the following necessary proceedings are a valid instrument for declaring a new state within the current territory of Ukraine. Either jointly as Donbass or Novorossiya, or independently as DPR and LPR, the Kosovo Precedent on the UDI determine that these regions of Ukraine are entitled to declare such independence and are entitled to have this independence recognized by the members of the United Nations. This Precedent also explicitly determines that the ruling authoritative body for an UDI is the International Court of Justice and not the local governing Constitutional body which in almost all cases would rule against such UDI within its own borders.
Precedent on the use of force by foreign powers in the case of Unilateral Declaration of Independence
Several NATO countries have chosen to deploy military force within Kosovo and towards Serbia / Former Yugoslavia to enforce the implementation of UDI as it was declared by Kosovo. With this, it is very important to understand that the use of force by foreign nations occurred years before the ruling of the ICJ on the legal basis of the Kosovo UDI. Although there is no legally binding ruling on this use of force and therefor this is a practical Precedent, it does however provide a case in which other countries or unions could decide to deploy and apply military force to enforce the implementation of an UDI within another country.
The practical Precedent of applying military force by NATO in Kosovo and Serbia to enforce the Kosovo UDI, creates a Precedent in which the Russian Federation, but for example also China or Chechnya, could deploy and apply military force on Ukrainian territory to enforce the Unilateral Declaration of Independence by DPR and LPR and other regions which have voted by Referendum to declare independence from Ukraine. Even bombardments of positions, supplies and infrastructure well within Ukrainian territory would be “allowed” when following the practical Precedent created by this strategy of NATO forces in Kosovo and Serbia. As we all know, NATO countries still have large military components stationed in Kosovo which would authorize countries which would decide to act on the UDI by Donbass or DPR and LPR to also station military components for a longer period of time in these regions.
There is however a pitfall in the comparison between the situation and circumstances in Kosovo and those of the self-proclaimed republics in Eastern-Ukraine. As several scholars, including myself, have argued during the 2012 Yalta Conference, the Precedent on Kosovo explicitly applies to the formation of an independent country within the borders of a country by an UDI. The Precedent as such does not provide a framework for the seceding of territory from one country to the next country and this is however what the the self-proclaimed republics within Ukraine have stated as their intention: secede from Ukraine and join the Russian Federation as part of Russia.
This difference does also shed a different light on a role of Russia in enforcing the UDI of Novorossiya or DPR and LPR. When the ultimate objective of the UDI is, as was stated by authorities of both self-proclaimed republics, to secede from Ukraine and join Russia, there are adequate arguments to plea that Russia is not supporting the UDI for reasons other than to extend its territory by the regions of Ukraine which have decided to secede the Republic and its Constitutional powers. As stated earlier, under these conditions and with these objectives of the parties involved, there are even adequate arguments to plea that the Precedent on Kosovo does not apply to self-proclaimed republics in Eastern-Ukraine.
Maybe we will discuss the “Novorossiya Precedent” a few years from now, maybe there will be a ruling by the ICJ that the Kosovo Precedent does apply to Novorossiya and its self-proclaimed republics. Maybe there will be an entirely different outcome but one thing is for sure: the conflict will continue to cause casualties under the civilian population until there is a solution, either by political means or by force. The legal details will be sorted out in the court rooms and that brings me to the next and very concerning Precedent from the Kosovo case.
Precedent on selective jurisdiction and prosecution of war crimes in the Kosovo conflict
Besides the armed conflict between pro-Kosovo and pro-Serbia forces and elements, several NATO countries have used military force in Kosovo and Serbia. The prosecution of war crimes committed by forces, individuals and authorities of the former members Yugoslavia have been placed under the jurisdiction of the International Criminal Tribunal for the former Yugoslavia, commonly known as Yugoslavia Tribunal, a special mandate of the International Crime Court. This ICTY Tribunal was mandated to prosecute crimes against humanitarian laws committed in former Yugoslavia, which include of course the Kosovo conflict. By now, the ICTY is succeeded by the International Residual Mechanism for Criminal Tribunals which carries the mandate for this and other conflicts.
There is no explicit mandate however, to investigate, prosecute and when needed convict, crimes and violations of the humanitarian laws and more explicitly, violations of the Geneva Convention committed by the NATO forces involved in the Kosovo and Balkan conflict. There are however many duly documented cases of the use of force by NATO countries without securing the safety of civilians and non-combatants as stipulated by the Geneva Convention. There are even cases in which there is reason to believe that attacks were carried out by NATO forces in which it was well known that civilian casualties would result from these actions.
This is certainly not a new development. After the war, the winner is the good guy, the loser the bad guy. The defeated country or alliance has always been the subject of convictions for war crimes whereas the victorious nations are mostly pardoned by victory and using force to bring justice. In the case of Kosovo, the use of force by NATO was non-proportional and NATO did not utilize its High-Tech capabilities enough to prevent civilian casualties. Some argue that the Kosovo campaign was a continued military solution to further weaken Serbia, a traditionally strong and loyal partner of Russia.
Regardless of the political agendas of parties involved, there should at least be an impartial investigation into the role of NATO forces in Former Yugoslavia in the same manner as the Tribunal was mandated to investigate and prosecute the native forces and individuals. There is no such mandate and there is no such independent body appointed to at least investigate. With this, a dangerous practical Precedent was created. The NATO role in Afghanistan, the Allies in Iraq, the NATO role in Libya. The use of private companies in armed conflicts by the USA. All these are without impartial investigation by an authoritative body and the tendency is that this will remain so.
In the conflict in Ukraine, there is another aspect which is on the one hand in line with this tendency and on the other hand even complicates the matter of future prosecution of war crimes and crimes against humanity by all parties. Paragraph 5 of the Minsk II Protocol:
5. Provide pardon and amnesty by way of enacting a law that forbids persecution and punishment of persons in relation to events that took place in particular districts of Donetsk and Luhansk oblasts of Ukraine.
This pardon and amnesty, of which the content and jurisdiction is still to be determined, in the first instance will prohibit the prosecution of war crimes and violation and is yet another dangerous step on a path towards further dirty civil wars. When that development in Ukraine and the indirect consequences of the practical Kosovo Precedent will create an environment in which there are no means of prosecuting the perpetrators of severe War Crimes, any future demonstration can easily escalate into a revolution which might be abused to start a civil war in which the war criminals and responsible parties can not and will not be held responsible for their crimes.
Are we sure that this is the world we want to create? It is the world we have started to create and without changes on all levels, especially politically, this will be the world we will have to try to survive in and hope we will never end up at the wrong side of the barricades! Or that others decide that we need a revolution and just carry it out without us…