The Precedential Value of the Kosovo Non-Precedent Precedent for Crimea
When the Obama administration invoked the 1999 Kosovo intervention as a precedent in the run-up to the planned Syria invasion, I wrote a post that argued that Kosovo was not a precedent for lawful international action. The Kosovo intervention violated the U.N. Charter, but the West was less concerned with that fact than with limiting the intervention's precedential value.
When the Obama administration invoked the 1999 Kosovo intervention as a precedent in the run-up to the planned Syria invasion, I wrote a post that argued that Kosovo was not a precedent for lawful international action. The Kosovo intervention violated the U.N. Charter, but the West was less concerned with that fact than with limiting the intervention's precedential value. Mike Matheson of the State Department famously said that NATO tried to justify the action in a way that would “not weaken international legal constraints on the use of force,” and he listed the contextual factors preceding the intervention as a “pragmatic justification designed to provide a basis for moving forward without establishing new doctrines or precedents that might trouble individual NATO members or later haunt the Alliance if misused by others.” The Independent International Commission on Kosovo (and many others) came up with a pithier account: the intervention was "illegal but legitimate.” The United States also tried to limit the future impact of its recognition of Kosovo as an independent State in 2008, explaining that “[t]he United States considers Kosovo to be a special case that should not be seen as a precedent for other situations” (emphasis added).
Russia has always hated the Kosovo intervention and Kosovo’s independence, and probably doubly abhorred the Obama administration’s proposed reliance on the Kosovo non-precedent precedent as a justification for its (almost) invasion of Syria. But Russia is now invoking Kosovo---both the 1999 intervention, and Kosovo’s 2008 declaration of independence---in support of Crimea’s independence movement. Last week Russian Foreign Minister Sergey Lavrov proclaimed (at just before the 10-minute mark): “If Kosovo is a special case then Crimea is a special case; it’s just equally special.” Not to be outdone by references to Kosovo, the presidents of the European Commission and European Council said on Sunday: “The referendum is illegal and illegitimate and its outcome will not be recognised" (emphasis added).
Russia has always hated the Kosovo intervention and Kosovo’s independence, and probably doubly abhorred the Obama administration’s proposed reliance on the Kosovo non-precedent precedent as a justification for its (almost) invasion of Syria. But Russia is now invoking Kosovo---both the 1999 intervention, and Kosovo’s 2008 declaration of independence---in support of Crimea’s independence movement. Last week Russian Foreign Minister Sergey Lavrov proclaimed (at just before the 10-minute mark): “If Kosovo is a special case then Crimea is a special case; it’s just equally special.” Not to be outdone by references to Kosovo, the presidents of the European Commission and European Council said on Sunday: “The referendum is illegal and illegitimate and its outcome will not be recognised" (emphasis added).
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
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