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.