Jus ad Bellum/UN Charter/Sovereignty

The Value of Kosovo as a Non-Legal Precedent

By Ashley Deeks
Saturday, August 24, 2013, 2:12 PM

Jack’s post makes the point that the Kosovo precedent won’t get the U.S. government very far if it is looking for a solid international legal precedent for intervention in Syria.  That seems absolutely right.  But it also seems worth asking: if Kosovo isn’t a good legal precedent for Syria, how good a precedent is it in the policy, practical, and moral realms?  Should the U.S. government cite Kosovo as a precedent at all?

When contemplating a future (controversial) action, the U.S. Government likes nothing better than to be able to point to historical precedents - similar acts that the USG took in similar circumstances.  This is true even when the historical precedent being invoked was supposed to be (as Jack notes) no precedent at all, but only a one-off action taken under extraordinary circumstances.  Indeed, one concern about the Executive's decision not to decide whether a coup had taken place in Egypt was the lack of prior examples of such non-determinations.

The reasons for preferring to be able to point to precedent generally are several, and many law review articles pore through these reasons.  In the use of force context, having a precedent to point to shows that the existing Administration is mindful of history and is not recklessly endorsing controversial decisions without regard to Executive actions that came before.  Second, being able to point to a precedent from your own government illustrates that some other (presumably sentient) set of government officials made choices similar to the one your Administration is about to make – and therefore supports your claim that the action contemplated is not unreasonable.

Enter Kosovo.  The NYT today identifies that the Obama Administration is looking to the 1999 Kosovo air war as precedent for action in Syria.  As many readers will recall (and as I discussed briefly here), virtually none of the NATO states that participated in the Kosovo bombings offered legal justifications for their actions.  Instead, their diplomats explained why their actions were legitimate as a moral and policy matter.  This is known in some corners as the “factors” approach, the idea being that there was an unusual confluence of factors that made it imperative for NATO to intervene, but those factors were so many and so distinct that it would be difficult for states in the future to claim Kosovo as a precedent for actions seen as less desirable by the international community writ large.

The clearest statement of the factors that the U.S. found relevant in the Kosovo context can be found in a March 23, 1999 press statement by State Department spokesperson Jamie Rubin (preserved here).  Here is the core defense of the U.S.’s role in NATO action in Kosovo:

There has been extensive consideration of this issue with our NATO allies. We and our allies have looked to numerous factors in making our judgment, including - there have been serious and widespread violations of international law; there has been the use of excessive and indiscriminate force; Yugoslavia has failed to comply with OSCE and NATO agreements, with UN Security Council resolutions, with its obligation to cooperate with the War Crimes Tribunal, as well as with numerous other commitments.

With Belgrade giving every indication of conducting a new offensive against Kosovar Albanians, we face the prospect of a new explosion if the international community doesn't take preventive action. It could be an explosion that exceeds the suffering of last fall. In short, Serbia's actions constitute a threat to the region, particularly Albania and Macedonia and potentially NATO allies Greece and Turkey.

On the basis of such considerations, we and our NATO allies believe there are legitimate grounds to threaten and, if necessary, use force. These issues have been repeatedly discussed. I think if you look, the NATO alliance, the European Union, the members of the Organization of Security and Cooperation in Europe are all united that we cannot stand by and let the Serbs crack down again on the Kosovar Albanians, when they have shown such reasonableness in agreeing to this peace agreement. That is the consensus of the European Union, the NATO alliance, the United States; and we believe that is a substantial and legitimate grounds for action internationally.

Fast forward to Syria.  A number of the Kosovo factors have clear parallels in the Syria context: serious refugee flows; the likelihood of destabilizing the region further (see Lebanon); a (likely) multi-lateral coalition supporting action; general disregard for (soft) UN Security Council Resolutions; and serious, widespread violations of international law.  Some of the Kosovo factors don’t resonate (no peace agreements; the coalition that would act is not from the same geographic region in which the humanitarian crisis is taking place).  But the United Nations now has what looks like pretty conclusive evidence that Assad’s regime has used chemical weapons – a factor absent in Kosovo but critical in the Syria factors column for sure.

Though the Times quotes a senior Administration official as saying, “It’s a step too far to say we’re drawing up legal justifications for an action, given that the president hasn’t made a decision,” that doesn’t actually ring true.  Either the speaker was hinting at the fact that the U.S. justifications for using force in Syria are unlikely to be legal ones, or the official is being coy.  Dollars to donuts says that State, Defense, Justice, and NSC lawyers are hard at work, maybe in conversations with close NATO allies, drawing on the Kosovo non-precedent precedent to shape the argument that intervention in Syria is legitimate, if not lawful.