Precedents – entering an unstable era

The lack of consensus regarding what a certain territory makes special (and its corresponding rights especially different comparing to others) is not only a specificum of the Kosovan case. And while pleading for precedents loses its persuasiveness with each next case, the international community grows more divided; likewise, legal arguments are turning more into an instrument, instead of guaranteeing stability.

By Miloš Petrović

The need for secession of Kosovo* derives from the narrative that this case, as a result of a specific weight of the conflict and its background, deserves to be treated in a special manner. Whereas a large number of countries have supported such an argument by granting Kosovo* its international recognition, a significant part of the world still does not consider it a specific case, or at least not as one which would contribute to stability. Apart from the classic row between the supporters and opponents of Kosovan independence, there is an additional fault line which has for years complicated progress towards any mode of consensus: from the countries which perceive it as a precedent which sets a “good” example to other situations, through actors which consider this a specific case which cannot and must not be compared to others, to those who see it as a precedent with a negative sign.

In the eyes of a large part of the international community, what to a certain degree makes  the Kosovan case a special one is the nature of conflict which has claimed thousands of lives, going a long and bloody way from an unsuccessful anti-terrorist combat, over a civil-ethnic clash and persecution of the Albanian minority, to a turning point following the international intervention of NATO against FR Yugoslavia and the exodus of Kosovo Serbs. As a matter of fact, this ‘humanitarian intervention’ for many experts represents one of the first examples of postmodern argumentation of warfare, which national and international law considers secondary to the universal (global) priority of protection of human rights. Regardless of its selective and controversial use, this approach, especially after 9/11, has been applied in numerous conflicts. As a result of the new, postmodern reality of warfare, which materialized in the form of ‘humanitarian intervention’, Kosovo has subsequently been abandoned by most Serbian state institutions, in parallel with the forcible resettlement of Kosovo Serbs, which the State could not contain nor limit, in spite of the UN Security Council resolution which formally kept the territory within its scope. For his ill-starred internal and international policies, Milošević was punished already the following year during the popular uprising, leaving in legacy a rump state territory and an isolated country, but it was nevertheless already too late: the previously enforced precedent could not have been undone.

State institutions again showed impotence to prevent or reduce the attacks on remaining Kosovo Serbs, their property and cultural-historic symbols during the unrest in 2004. Many countries began to see the independence of that territory as a necessary, logical outcome of the earlier intervention, whereas the alternatives such as negotiating minimal arrangements of cooperation with Belgrade have not been given much consideration nor were viewed as realistic. Support to such a secession has been justified by ‘uniqueness’, maybe more out of fear not to cause a regional domino-effect than out of essential belief in the specificity of Kosovan situation in the global frame. Besides, every conflict situation indeed represents a special case: henceworth a high degree of discrepancy regarding what any case makes to an-enough-degree-specific in order for it to be universally acceptable, especially in a growingly multipolar world.

A significant number of African, South American, as well as some European countries had very serious dilemmas regarding the acceptance of Kosovo’s particularity, so even following the decisions to recognize Priština’s unilateral declaration of independence, some have decided to limit diplomatic cooperation with that territory out of concern that it still may not constitute a “good” precedent. And vice versa: a large part of the international community does not recognize such a secession because of negative message which such an act may send: that position of some (minority) groups may be evaluated and treated according to the postmodern logic – humanitarian and political arguments, rather than firmly in line with traditional legal principles. In the post-Soviet European space alone, the Kosovo precedent has since 2008 been quoted in cases of secession of Georgian regions of Abkhazia and South Ossetia, followed by the Ukrainian Crimea, Sevastopol and Donbas regions: to those striving to be independent it is difficult to clarify why their situation is less specific or prioritized, especially when they as well have some (international) support and some moral or other grounds for their cause. On the other hand, the experience of frozen or prolonged conflicts shows that recognition does not necessarily need to be universal: independence, regardless of how illusive or half-recognized, to some is better than nothing. Still, such “solutions” are not preferred nor stabilizing, but leave room for subsequent escalation, which is a growing concern in the increasingly unstable international circumstances.

The lack of consensus regarding what a certain territory makes special (and its corresponding rights especially different comparing to others) is not only a specificum of the Kosovan case. Growing disagreements between key international actors regarding numerous neuralgic territories is a reflection of an increasingly polycentric world. This is a logical outcome of playing with postmodern fire, the consequences of which some recognize, whereas others do not think that the world has changed. And while pleading for precedents loses its persuasiveness with each next case, the international community grows more divided; likewise, legal arguments are turning more into an instrument, instead of guaranteeing stability. Be it as it may, the postmodern logic of conflict understanding, with all the suspense it brings, is ever more present and it may be fatal not to be aware of that. At least in order to avoid something which appears to be an even more unpredictable and less just future.

Miloš Petrović holds a PhD in Political Sciences from the University of Belgrade.

The views expressed in this article do not necessarily reflect those of TransConflict.

Interested in writing for TransConflict? Contact us now by clicking here!