The Kosovo war helped consolidate the Responsibility to Protect norm. But Lena Surzhko-Harned and Jiří Nykodým argue that it also created the 'Kosovo precedent', which has since been used to undermine international law. Russia has often invoked this precedent to justify its current war in Ukraine
One of the many victims of Russia's aggression in Ukraine is international law. Russia has blatantly violated the centuries-old system of norms, predicated on sovereignty, that govern interstate relations. Yet its defiant leadership continues to claim that it is acting within the framework of the law.
The Kremlin justifies its actions by blaming 'The West' collectively, accusing Western nations of applying international norms in an arbitrary fashion. The Russian Federation leadership has frequently used the so-called Kosovo precedent to justify illegal military activity in neighbouring countries, including Ukraine.
So, did the Kosovo precedent create conditions that allowed Russia to violate fundamental United Nations principles of sovereignty, and undermine the credibility of international law?
The answer, in short, is yes. Why?
In March 1999, in response to the 'ethnic cleansing' of Albanian Kosovars ordered by President Milosevic, NATO launched airstrikes on Serbian targets. Russia strongly opposed the strikes, and demanded a halt to bombing operations. Its reasons were manifold.
On the one hand, there are strong historic ties, and many parallels, between Russia and Serbia, two Slavic, Orthodox nations. On the other, Russia wanted to keep its actions in Chechnya and 'near-abroad' out of reach of the amorphous 'international community'.
The Russian leadership argued that such military operations, and the secession of Kosovo from Serbia, breached the very foundational principle of sovereignty and territorial integrity.
The Kosovo precedent allows the international community to intervene in humanitarian crises without approval from the UN Security Council
This set a precedent allowing the 'international community', driven by the interests of a powerful state (i.e. the US), to intervene 'when needed' without approval from the Security Council. The Kremlin feared that such a powerful position for the 'international community' might weaken Russia's role and say in international affairs. Russia even worried that this precedent might threaten its Soviet-era puppets in Africa and the Middle East.
The current Russian government frequently invokes the Kosovo precedent to justify its war in Ukraine. Paradoxically, to defend its behaviour, Russia also relies on the Responsibility to Protect norm.
Responsibility to Protect (R2P) is a principle officially adopted at the 2005 United Nations World Summit. It was introduced in direct response to the genocides in Rwanda and Srebrenica, but most importantly to the war in Kosovo. Its primary purpose is to prevent or halt mass killing and misplacement of innocent civilians if a sovereign authority has overreached its powers or is unable to secure its citizens. In such a scenario, the international community would be obliged to address the situation according to R2P rules.
Unlike 'traditional' humanitarian intervention, R2P shifted the focus toward endangered people, and states’ responsibility to ensure their safety. It was thus designed to assist struggling states, not to act only when states collapse entirely.
More than 80 UNSC resolutions, 50 resolutions of the UN Human Rights Council, and 13 resolutions of the UN GA invoke R2P in connection with various humanitarian crises.
Russia denounces Responsibility to Protect as a 'western' or 'colonial' instrument, and regularly opposes its application
Yet some have criticised R2P as a 'western' or 'colonial' instrument. Since R2P's introduction in 2005, Russia has opposed its application on several occasions. Besides minor warnings, condemnations, or humanitarian aid resolutions, Russia has vetoed almost every critical proposal since Libya in 2011. Notable Russian vetoes include resolutions concerning Syria, Zimbabwe, Myanmar, Venezuela, and Yemen. From 2011 to 2015 alone, Russia vetoed four resolutions condemning violence against civilians in Syria.
Russia did not approve of R2P, and consistently opposes its application. Yet it has avoided openly criticising R2P in the UN. Moreover, Russia has itself used the language of R2P to justify its encroachments into so-called near-abroad (neighbouring) countries. By invoking the Kosovo precedent, Russia is suggesting that in Kosovo, the collective West established a new precedent for intervention.
Accusations of genocide, ethnic cleansing, and the need to protect Russian-speaking minorities and diaspora, have been Russia's main arguments for its intervention in Georgia, annexation of Crimea, and the 'special military operation' in Ukraine.
During the annexation of Crimea in 2014, Putin claimed:
Crimean authorities referred to the well-known Kosovo precedent – a precedent our Western colleagues created with their own hands in a very similar situation, when they agreed the unilateral separation of Kosovo from Serbia. This is exactly what Crimea is doing now
vladimir putin, speech to russian parliament, 18 March 2014
In other words, Russia is doing exactly what it had opposed 15 years before. However, in this case, the Crimean authorities are doing so without any evidence for mass atrocities. Instead, the Russian leadership claimed that 'authorities in Kyiv were preparing to commit mass atrocities against the Russian-speaking population in South-eastern regions'. The Kremlin used very similar language in 2021, and again in 2022, to justify the 'denazification' of Ukraine. Putin also called for the removal of the Kyiv government, which he accused of genocide in the Donbas region.
The Kosovo precedent thus appears to have taught the West and Russia very different lessons. In the West, R2P is a tool for dealing with genocide, war crimes, ethnic cleansing, and crimes against humanity. Russia, meanwhile, learned to manipulate this international norm to show that it is no less moral than its hypocritical Western colleagues.
