The Value of Kosovo as a Non-Legal Precedent
Published by The Lawfare Institute
in Cooperation With
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.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.