Tag Archives: Legal

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.

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

When Crimea called, nobody was listening. Crimea’s peaceful struggle for independence

What started after the Crimean War was concluded after World War I and the Russian Revolutions. Countries were created after the default of the Austrian-Hungarian Empire and the transformation of the Ottoman Empire into modern Turkey. Drawn up borders and created countries started to exist in the former borders of fallen empires without respecting the desires of the population and ethnic and cultural backgrounds. Yugoslavia and Czechoslovakia are examples which were created in 1918 and less than a century later stopped to exist.

Yugoslavia ceased to exist by the hand of violence, a brutal civil war between those members seeking independence and those opposing it and murderous attempts of land grabbing even between those seeking to depart from Yugoslavia. At the height of the civil war, the West intervened with even more brutal violence against the violent Serbian efforts to maintain Yugoslavia as a state or at least extend the territory of Serbia. Both Serbia and Bosnia paid a high price. The first for their struggle against the break up of Yugoslavia, the later for their independence from Yugoslavia and the ruling Serbian power base.Croatia, victim and perpetrator in its attempts to free itself from Yugoslavian and Serbian dominance and at the same time pushing to extend its borders into Bosnian territory, played a dubious role and in the end gained independence into the republic it is today. When Kosovo developed its desire for unilateral declaration of independence, the West stretched all its might and military capabilities to ensure this would take place as requested by the majority of the now independent republic.

Czechoslovakia showed the world another path to break the unwanted union which was created in the vacuum at the beginning of the 20th Century. Negotiations as equal partners, acting and reacting to every hurdle on the path of independence, the former Republic was dismantled into 2 proud and independent republics with a strong bond. Not a bullet was fired! This all was possible, good and bad, in the vacuum which was created by the default of the Soviet Union.

During this process of default, former Soviet Republics had the opportunity and took that opportunity. Ukraine and Belarus, founding members of the United Nations, were greeted into their independence by Western powers. Other former Soviet Republics like Georgia and Uzbekistan followed the same path and declared independence under their own constitutional powers. The Baltic states, disputed Soviet States since they were absorbed under the German-Russian pact, were supported in their strive for independence by the same Western powers and obtained this independence. All implemented treaties, preliminary and ratified constitutions came into force and Western powers and the Russian Federation cooperated to ensure the transitions were done peaceful, ensuring that legislation and will of the people were aligned.

One former Soviet Republic was deprived of this process: Crimea!

Continue reading When Crimea called, nobody was listening. Crimea’s peaceful struggle for independence

On the subject of evidence and opinions

The conflict in Ukraine and the downing of Flight MH17 is covered by 24/7 attention in media and online platforms. The amount of information coming through all channels in an incredible pace is overwhelming. Opinions and interpretations are formed and shared with the speed of light, presented under the cover of information and evidence. In all this, it becomes difficult to identify truth, facts and fiction.

Most concerning is the amount of unsubstantiated opinions which are presented as facts and evidence, and are carried by crowds of online users and mass media. If that would not be enough, there is a growing amount of fabricated hoaxes which are mixed in with information.

Here are some simple facts about evidence:

  • Evidence that a suspect has the capability to commit a crime does not provide evidence that the suspect committed the crime.
  • Evidence that a suspect has a possible motive to commit a crime does not provide evidence that the suspect committed the crime.
  • Evidence that a suspect was at the scene of the crime at the moment of the crime does not provide evidence that the subject committed the crime, unless evidence is available the the subject and only the subject was at the scene of the crime at the moment of the crime.
  • The above do however substantiate the suspicion of committing the crime and the need to continue to treat the suspect as suspect.
  • Eyewitness testimony is not direct evidence, neither in confirming that the suspect committed the crime, nor in denying that the suspect committed the crime. Eyewitnesses can of course be influenced up to being paid to testify.Honest eyewitnesses can be influenced by their own believes, by information by others, by fear and most of all by time. The longer the time frame between the event and the testimony is, the higher the risk that the memories of the eyewitness have been influenced by external information and personal considerations of the eyewitness.
  • Pictures and videos are not direct evidence. The first challenge is to confirm that these were made at the time and location of which they are stated to be made. The next challenge is to determine if these have not been manipulated. And thirdly, quality, angle, range, etc. of the picture or video can have influence on the information provided.

Continue reading On the subject of evidence and opinions

The faith of foreign volunteers in the Ukrainian Conflict

The recent arrest in Spain of 8 Spanish combatants, serving as volunteers for the rebel militias in South-East Ukraine, have sparkled vivid discussions among various communities and groups, including lawyers of different countries and backgrounds. Those without a legal background (and some with legal background) focus their discussions on good versus bad, in which being good or bad depends on personal views and beliefs. The good guys are referred to as volunteers, the bad guys are the mercenaries and soldiers of fortune. Both sides alike. Fellow researchers and confreres try to find answers in the legal environment of laws and rulings within and outside of Spain and precedents from prior conflicts in past decades.

A complicating factor in this matter is the Minsk II Protocol which provides several sections which apply to or impact foreign volunteers involved in this conflict. A pardon and amnesty, pullout foreign formations and mercenaries and disarmament of illegal groups are defined as follows:

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.

10. Pullout of all foreign armed formations, military equipment, and also mercenaries from the territory of Ukraine under OSCE supervision. Disarmament of all illegal groups.

Continue reading The faith of foreign volunteers in the Ukrainian Conflict

A prelude to pleading the Crimea Case, Part 2

After becoming part of the Russian Empire in 1783, the 19th century was a period of relatively calm for Crimea. Driven by a truce between the Russian Empire and its opponents the Ottoman Empire and British Empire, the Black Sea was neutralized and Crimea was no longer the prime target to weaken the Russian Empire and the strong Black Sea Fleet stationed in and around Sevastopol.

Aside from recent developments on the peninsula Crimea, the 20th century shaped the political environment of Crimea with more dynamics than most European countries endured over multiple centuries.

The Russian Revolutions which started in 1905, partially raging in parallel to World War I, and their aftermath leading to forming the Soviet Union in 1922, also had their impact on the political environment of Crimea. Ahead of many other later Soviet States, Crimea declared itself Crimean People’s Republic in 1917 and installed its first formal Constitution as independent Crimean People’s Republic in early 1918 which was ratified by the Authoritative Parliament of the Republic. (Thanks to my friend and mentor throughout all phases of my professional life, I am the proud owner of a rare copy of this Constitution and a certified translation). Challenged by all influences and fractions playing their part , the Crimean Republic continued to expand its political and legal foundation as a republic and its alliance with the socialists movement which eventually founds it destiny in the Soviet Union.

Continue reading A prelude to pleading the Crimea Case, Part 2

A prelude to pleading the Crimea Case, Part 1

The peninsula of Crimea has become in the focus of attention in February 2014 and for many, that is also the moment that the history of Crimea started. A part of Ukraine and suddenly occupied and annexed by force by the Russian Federation, where Ukrainians and Tatars used to live in peace until Russia came. At least, that is what Main Stream Media wants us to believe and shockingly high amounts of people actually do believe. On the question where, if this would be true, suddenly all those ethnic Russian citizens of Crimea came from, in most case the answer is “those are retired Russian service men with their families, they don’t belong on Crimea”. Given the fact that the fast majority of the Crimean population is ethnically Russian, that would add up to an amount of retired service men and families that by far exceeds the manning of the Black Sea Fleet stationed at Crimea.

The true Russian roots of Crimea start in 1783, when the Crimean Khanate fell to the Russian Empire, after centuries of occupation by many, including Bulgars, Khazars, Kipchaks, the “Golden Horde”, and period of ruling by the Ottoman Empire. Just to put this in historical perspective:

  • Canada was founded much later in 1867
  • The USA declared independence just years earlier in 1776 and had their independence war still ahead of them.
  • Germany as we now know it and as it pulled the world into World Wars which also raged on Crimea, was founded even later than Canada, in 1871.
  • Ukraine as we now know it, was still to be founded by the Soviet Union in the 20th Century and in this historical time frame divided in different states and part of different empires, including The Ottoman Empire, The Polish Kingdom, The Austro-Hungarian Empire and even Lithuania, with a small Cossack Republic which disappeared as fast as it emerged.
  • Belgium, later a ruler of parts of Africa and beneficiary of the aftermath of the Crimean War, was founded in 1830.
  • The Netherlands has a longer history as Nation and attempts to destroy this nation since 1648.

Continue reading A prelude to pleading the Crimea Case, Part 1