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Bouwhuis, Stephen --- "Kosovo: The Legality of Intervention?" [2000] AUJlHRights 20; (2000) 6(2) Australian Journal of Human Rights 57

Kosovo: The legality of intervention?

Stephen Bouwhuis [*]


Introduction

This article sets out the major arguments regarding the legality of intervention by the North Atlantic Treaty Organisation (NATO) in Kosovo and Metohia (or just ‘Kosovo’ as it is referred to in the Western media). The article begins with a brief factual outline of the conflict and the factors leading up to intervention. The various arguments with respect to the legality of the intervention are then canvassed. These arguments include those regarding the Charter of the United Nations, those based upon state practice and those regarding the legitimacy of States. The article concludes with speculation as to the likely future for Kosovo.

Factual background

Kosovo is a tiny province in the south of the Federal Republic of Yugoslavia (Serbia and Montenegro) bordering on Albania and Macedonia. Kosovo was the seat of the medieval Serbian State that was conquered by the Ottoman Empire in 1389.[1] The Ottoman Empire conducted a resettlement program under which large numbers of ethnic Albanians came to settle in Kosovo.[2] Serbia then reclaimed Kosovo from the remnants of the Empire in the Balkan Wars of 1912 and 1913.[3] Under the post-war government of Tito, the province was given increasing independence.[4] This independence was used by the Albanian majority to push for their own Albanian language schools and other institutions.

After the death of Tito the process of increasing independence for the province was reversed.[5] As the ethnic Albanians felt excluded from the new regime they began to establish their own governmental structures with limited functions in regard to taxation, social services, health care and education.[6]

In 1987, the then leader of the League of Communists in Serbia, Slobodan Milosevic, used Kosovo to rally the Serbian people to assert their rights in former Yugoslavia. To many this was seen as marking the beginning of the war in former Yugoslavia.[7] In the conflict that followed Bosnia and Herzegovina, Croatia, Macedonia and Slovenia broke away from former Yugoslavia to form separate States while Kosovo was reintegrated more closely back into former Yugoslavia.

While war raged in other provinces within former Yugoslavia the ethnic Albanians chose a largely non-violent waiting game. The high Albanian birth rate and Serbian migration out of Kosovo saw the Serbian percentage of the population decrease from 27 per cent in 1961 to less than 10 per cent with ethnic Albanians comprising the majority of the remaining population.[8]

The patience of ethnic Albanian paramilitary groups such as the Kosovo Liberation Army (the KLA) eventually wore out and they opted for armed struggle.[9]

Earlier parallels to the conflict

The emergence of the conflict within Kosovo followed a parallel path to that of the other provinces within former Yugoslavia. There existed a repressed population asserting a right to self-determination, a government in power that was claimed not to respect the rights of this population and, until the intervention by NATO, an international community reluctant to intervene in a determined manner.

The emergence of the conflict within Kosovo contrasts with Slovenia, which was one of the provinces of former Yugoslavia that escaped the majority of the fighting. In Slovenia, the forces of Federal Yugoslavia retreated from the province after a series of brief border clashes.[10] This was due to the low proportion of the population that was ethnically Serbian but also due to the ability of the province to amass an army of some 60,000 recruits with federal Yugoslavian weapons.[11] In Kosovo, by contrast, the ethnic Albanians were only able to assemble a small guerrilla army and also confronted the reality of the strong historical significance attached to Kosovo by the Serbian people as the birthplace of the medieval Serbian State.[12]

Intervention by the North Atlantic Treaty Organisation

The initial actions of the international community paralleled the positions taken with respect to the previous conflicts within former Yugoslavia. The international community has been represented in former Yugoslavia primarily by the Contact Group of Countries: France; Germany; Italy; the Russian Federation; the United Kingdom; and the United States. This grouping maintained the position that they neither supported independence for Kosovo or the status quo but rather supported ‘an enhanced status for Kosovo within the Federal Republic of Yugoslavia’.[13] This position paralleled that taken with respect to former Yugoslavia prior to the initial disintegration where support was initially provided to the Federal Government of Yugoslavia to suppress the desires of the provinces for independent statehood.[14]

Also paralleled were the initial tools of intervention, namely economic sanctions and arms embargoes.[15] These tools of intervention are designed to minimise Western casualties and accordingly to minimise the risk of domestic political backlash most clearly illustrated by the backlash against the peacekeeping operation in Somalia in the early 1990s.

The government of Yugoslavia had held out against such measures in the past, however, and sanctions have a very mixed record in terms of inducing political change, in addition to being a blunt instrument in that their effect is felt primarily by the poor and powerless. Sanctions also generally favour those already well armed, as was the case in the early stages of the conflicts in Bosnia and Herzegovina as well as in Croatia.

Given these parallels, what was surprising was the decision by NATO to intervene with sustained air power in Kosovo and to maintain this intervention in the face of considerable international criticism and in the face of the seeming intransigence of the government of Yugoslavia. The gamble was taken on the basis that air power alone could force a backdown by the government of former Yugoslavia without NATO having to commit ground troops, approval for which seemed to be proving very politically difficult for NATO governments.

Arguments regarding the legality of Intervention by the North Atlantic Treaty Organisation

1. Arguments regarding the Charter of the United Nations

The central argument against the legality of intervention by NATO is that based upon Article 2(4) of the Charter of the United Nations. As argued by Yugoslavia in the Case Concerning Legality of the Use of Force[16] NATO intervention in Kosovo involves a continuing breach of Article 2(4) of the Charter of the United Nations. Article 2(4) provides:

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

In support of the argument it is noted that there are only four formal exceptions to Article 2(4) contained in the Charter of the United Nations. It can be argued that the actions of NATO do not seem to fall within any of these formal exceptions. The first exception is Article 51, which provides that the Charter does not impair the right of self-defence if there is an armed attack against a Member State of the United Nations.[17] The actions within Kosovo do not seem capable of being classed as an attack against a Member State of the United Nations (as opposed to a province within a State) and it therefore seems that this exception does not apply.

Under the second exception, the Charter of the United Nations grants to the Security Council the ability to intervene if it determines that a threat to the peace, breach of the peace, or an act of aggression exists.[18] In this regard the Security Council passed Resolution 1199 (1998)[19] noting that in doing so it was acting under Chapter VII of the Charter requiring a determination that such a threat exists. This resolution called upon the parties to the conflict to cease hostilities and to improve the humanitarian situation in Kosovo. In light of the limited nature of Resolution 1199, it seems a far stretch to argue that it provided the authority for intervention by the United Nations in Kosovo.[20] It would seem, therefore, that the intervention was conducted without an authorising Security Council Resolution and that accordingly this second exception does not apply. Two further exceptions relating to Article 43[21] arrangements and the ‘enemy’ states of World War Two[22] are generally regarded as no longer operational,[23] and do not seem to apply in the present case.

In reply it can be argued that whilst these exceptions represent the only formal exceptions to the use of force in accordance with the Charter of the United Nations other exceptions can be implied based upon other provisions of the Charter. The most commonly cited articles in this respect are Articles 55 and 56. Article 55 provides that universal respect for and observance of human rights is important to create the conditions of stability and well-being that are necessary for peaceful and friendly relations among nations.[24] Article 56 requires States to pledge themselves to achieve these goals by ‘joint and separate action’.[25] Together these provisions within the Charter are used in support of a right of humanitarian intervention, the argument being that States are thereby under a positive duty to act to enforce observance of human rights.

In support for this argument one can view the Charter of the United Nations as a constitutional document for the organisation. This view sees the Charter as a document that requires flexibility in interpreting its provisions to remain relevant to contemporary conditions.[26] Such an approach supports the evolution of exceptions to provisions such as Article 2(4), which may not otherwise be supported based on a pure textual reading of the Charter.

Support for this approach can be found in the judgment of the International Court of Justice in the Case Concerning United States Diplomatic and Consular Staff in Teheran.[27] The case concerned the seizure of the United States Embassy in Teheran by Iranian Nationals. In deciding the merits of the case the International Court of Justice found Iran to be in breach of international law and demanded that the hostages be released, the premises and property of the United States returned, and that reparations be made to the United States.[28]

In reaching its decision the International Court of Justice referred not only to the Iranian breaches of the Vienna Conventions of 1961 and 1963 on Diplomatic and Consular Relations and the Treaty of Amity, Economic Relations and Consular Rights of 1955, but also to breaches of general international law.[29] The Court further stated:

Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.[30]

Though not supporting intervention per se the statement of the court does, at least, recognise that breaches of human rights, such as the deprivation of freedom and the use of physical constraint, are contrary to the principles of the Charter of the United Nations.

Further support for the legality of humanitarian intervention comes from the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations.[31] The Declaration provides in part that:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.[32]

The paragraph can be read as implying that the right of territorial integrity only applies to those States ‘conducting themselves’ in accordance with the requirements of the paragraph.[33]

Additionally, the Draft Articles on State Responsibility, being developed by the International Law Commission,[34] can be seen to lend support to the doctrine of humanitarian intervention. Article 19 of the Draft Articles provides for international crimes and international delicts that include ‘[a] serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid’.[35] In response all States are obliged ‘to cooperate with other States in the application of measures designed to eliminate the consequences of the crime’.[36]

Against these authorities, however, stands the judgment of the International Court of Justice in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua.[37] In this case the government of Nicaragua alleged that certain unlawful military and paramilitary activities had been carried out by the government of the United States against Nicaragua. The International Court of Justice found the United States to be in breach of international law and called on the United States to cease this activity and to make reparations to Nicaragua.[38]

Within the case, reference is made by the court to the impermissibility of an external power supporting a group within a State ‘whose cause appeared particularly worthy by reason of the political and moral values with which it was identified’.[39] The Court went on to state that:

In any event, while the United State might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect.

The statement is quite unambiguous. The use of force is not an appropriate means to ensure respect for human rights.

Whilst noting that there is no doctrine of stare decisis at international law[40] one can argue with the basis of the statement by the Court in Nicaragua. If, to use an all too common example, a government is engaged in genocide against its own people and has proven resistant to non-forceful options designed to unseat it, what recourse has the international community to end the genocide? In this regard one can note Article 1 of the Convention of the Prevention and Punishment of the Crime of Genocide, ‘[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish’.[41]

As was noted by the International Court of Justice in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,[42] the nature of the Convention has as one of its ‘consequences’ the ‘universal character both of the condemnation of genocide and of the co-operation required “in order to liberate [humanity] from such an odious scourge (Preamble to the Convention)”’. As was further stated by the court in considering preliminary objections in the Case Concerning Application of the Convention of the Prevention and Punishment of the Crime of Genocide (Genocide case’),[43] ‘the rights and obligations enshrined by the [Genocide] Convention are rights and obligations erga omnes ... the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.’

In the case of Kosovo one can argue that what was being engaged upon was a policy of genocide against the people of Kosovo and that entails grounds for invoking the doctrine of humanitarian intervention. In this context it is worth noting that the Genocide case is proceeding on a similar factual base to that in Kosovo. It is also worth noting that the International Criminal Tribunal for the former Yugoslavia has issued indictments for acts of genocide committed elsewhere in former Yugoslavia,[44] although no convictions for these indictments for genocide are yet to be recorded.[45]

In response, however, one can note that the indictments brought by the International Criminal Tribunal for Former Yugoslavia against senior officials in the Government of former Yugoslavia with regard to Kosovo did not include indictments for genocide.[46] Whilst acknowledging the difficulties in establishing an indictment for genocide, the lack of a count of genocide within the indictments weakens the case for asserting genocide within Kosovo if in only reflecting that it is apparently not considered that a sufficient prosecution for genocide can presently be made in this regard.

If genocide can be established then on this line of argument intervention was legal as an implied or emerging exception to the principle of non-intervention contained within Article 2(4) of the Charter of the United Nations. How far such an exception extends is an open question. Most supporters of a right of humanitarian intervention would extend the scope of the right to situations of ‘widespread and systematic violations of human rights’. No consensus exists, however, as to how ‘widespread and systematic’ such violations must be.

2. Arguments based on state practice and customary international law

A further argument can be made that there is a right of humanitarian intervention supported at customary international law independently of the Charter of the United Nations. The argument requires establishing the presence of the two requisite elements of customary international law, namely state practice and opinio juris.[47] The following are a few potential examples of state practice that could be argued to involve humanitarian intervention:

Intervention by the United Nations:

[S]ome might argue that this is an intervention into the internal affairs of Iraq, but I think the humanitarian concern, the refugee concern is so overwhelming that there will be a lot of understanding about this.[49]

Intervention outside the ambit of the United Nations:

Admittedly many of the examples cited above are ambiguous in that justifications other than humanitarian intervention were also relied upon as grounds to justify intervention. Many, such as the intervention by Vietnam against the Khmer Rouge Government in Cambodia, were also widely condemned by the international community. Additionally, in the cases of intervention by the United Nations the various Security Council Resolutions can be relied upon as the basis for legal authority. Overall, one would not place great weight upon these examples as supporting a right of humanitarian intervention, though they do indicate some support in this regard.

3. Arguments about the legitimacy of the State

Further arguments about the legality of humanitarian intervention can also be mounted. One of the most notable is that based within political philosophy and the rights of the people of a State. As perhaps best expressed by Tesón:

[B]ecause the ultimate justification of the existence of states is the protection and enforcement of the natural rights of the citizens, a government that engages in substantial violations of human rights betrays the very purpose for which it exists and so forfeits not only its domestic legitimacy, but also its international legitimacy as well.[60]

For a more positive perspective, the argument is that if a State has rights at international law it has them based upon the assumption that it is respecting the rights of its people. On this line of argument governments that are abusing human rights cannot object to intervention because intervention is directed against them and not against the people of the State. To allow a claim of non-intervention to apply in this situation is to assert that the government, and not the people of the State, enjoy the protection of the right of non-intervention.

This argument was also expressed by Senator Jesse Helms in his January 2000 address to the Security Council of the United Nations:[61]

The sovereignty of nations must be respected. But nations derive their sovereignty – their legitimacy – from the consent of the governed. Thus, it follows, that nations can lose their legitimacy when they rule without the consent of the governed; they deservedly discard their sovereignty by brutally oppressing their people.

Slobodan Milosevic cannot claim sovereignty over Kosovo when he has murdered Kosovars and piled their bodies into mass graves. Neither can Fidel Castro claim that it is his sovereign right to oppress his people. Nor can Saddam Hussein defend his oppression of the Iraqi people by hiding behind phony claims of sovereignty.

And when the oppressed peoples of the world cry out for help, the free peoples of the world have a fundamental right to respond.

The rights of minorities

A number of international instruments set out the rights of people belonging to minority groups within a State and the obligations of the State towards them. These minority rights do not of themselves give rise to a right to humanitarian intervention but arguably can be used in addition to other arguments concerning a right to humanitarian intervention. Within Kosovo both the ethnic Albanian and Serbian populations could be seen as minority groups.

In terms of international instruments, the most notable in this regard is Article 27 of the International Covenant on Civil and Political Rights. Article 27 provides that:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

As the Committee on Human Rights has noted, Article 27 may require positive measures to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with other members of the group.[62]

Also of significance is the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (Minorities Declaration).[63] The Declaration calls on all States to protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their territories and to encourage conditions for the promotion of that identity.[64]

Legality under the NATO Charter

An argument can also be mounted that the intervention into Kosovo by NATO was beyond the power of NATO under its own Constitution. The North Atlantic Treaty[65] forms the basic treaty underlying NATO. The treaty had been understood as primarily a defensive document, providing for the collective defence of its members. Intervention within Kosovo seemed to overstep this framework. In particular, Articles 1 and 7 of the North Atlantic Treaty could be used in support of the argument against the legality NATO intervention. Article 1 of the Treaty provides that:

The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.[66]

Article 7 provides that:

This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.[67]

The argument, based upon these two provisions, is that under the NATO Charter the Parties undertake to act consistently with the Charter of the United Nations and, as set out in Article 7, this includes the primary of the Security Council with regard to the maintenance of international peace and security.

In response it can be argued that the intervention did respect the ‘primary responsibility’ of the Security Council in this regard but that such primacy does not prevent resort to other methods for maintaining international peace and security where, for example, the Security Council is unable to resolve an internal deadlock . Further it can be argued that, as with the Charter of the United Nations, the North Atlantic Treaty is a constitutional document and as such destined to evolve as NATO evolves.

A significant legal hurdle remains in the face of both of these arguments, however, in the form of Article 53(1) of the Charter of the United Nations. Article 53(1) provides that:

The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under the regional arrangements or by regional agencies without the authorization of the Security Council ...[68]

Article 53(1) is unambiguous in its terms and prima facie it would seem that NATO breached Article 53(1) when intervening in Kosovo. One could try to argue in response that NATO is not a regional arrangement but rather a defensive association. In taking enforcement action, however, NATO would seem to have moved beyond a defensive formulation.[69] Indeed, NATO’s new Strategic Concept, as approved by the NATO Heads of State and Government in April 1999, recognises the primary but not sole responsibility of the Security Council for the maintenance of international peace and security.[70] As reported, this would allow NATO to act without approval of the Security Council to restore international peace and security outside of the Charter of the United Nations.[71]

On the argument outlined earlier, that the right of humanitarian intervention is either an implied or emerging exception to Article 2(4) of the Charter, Article 53(1) of the Charter is not necessarily a barrier to intervention. The argument is for a right of humanitarian intervention not strictly based upon the wording of the Charter but as either implied within or emerging from the document. It would be anomalous to argue that a right of humanitarian intervention exists as an exception to the Charter but that a further Charter provisions prevents only regional arrangements from exercising this right.

It should be noted, however, that NATO’s new Strategic Concept appears to go wider than just instances of humanitarian intervention. That NATO regards itself as able to intervene in other countries without the requirement of authorisation by the Security Council leaves it, as an organisation, largely unbridled by international law. Individual members of NATO, however, may still be required to argue for the legality of their actions as individual parties to the Statute of the International Court of Justice, through the proceedings brought by Yugoslavia.

The question before the International Court of Justice

Yugoslavia has brought the issue of the legality of the intervention is one now before the International Court of Justice in the Case Concerning Legality of the Use of Force. To date the court has declined to indicate provisional measures in the case largely because it could not be certain of its prima facie jurisdiction in the matter.[72] The court did not, however, rule out making a decision on the legality of the intervention by NATO in deciding the merits of the case. If jurisdiction can be established, and if the Court does decide the issue, it will face the interesting choice of either declaring the NATO intervention to be illegal under international law or legitimising the doctrine of humanitarian intervention.

The avenue for making out the argument for the legality of humanitarian intervention, as outlined within this article, lies in arguing that humanitarian intervention is an implied or emerging exception to the prohibition on the use of force in Article 2(4) of the Charter of the United Nations. The strongest arguments in this regard relate to the obligations upon States to prevent and punish the crime of genocide, although there also seems merit, at least in terms of political philosophy, in the argument that governments who fail to protect the rights of their peoples forfeit their rights to legitimacy.

Fears that to legitimise a right of humanitarian intervention may lead to abuses of the right by States are understandable given past invocations of the right. However, the international community, including governments, non-government organisations and the international media, have demonstrated an ever increasingly capacity to subject such justifications to objective scrutiny.

Likely outcomes for Kosovo

Security Council Resolution 1244 (1999)[73] sets out the principles that are to govern the future of Kosovo. These include a transitional administration as part of a political process aimed at ‘providing for a substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia’.[74] The reference to the territorial integrity of the Federal Republic of Yugoslavia and to ‘substantial self-government’ within the resolution would seem to imply a government for Kosovo de jure still part of former Yugoslavia but de facto an independent State. As in Bosnia and Herzegovina, the outcome is likely to be a de jure legal position reflecting the principle of territorial integrity and a de facto position representing independent statehood.[75]

Based on the outcomes of the conflict in the other provinces of former Yugoslavia, once would not expect Kosovo to become a state of peaceful ethnic co-existence at least anytime in the short or medium term. The Serbian minority who, for the most part, fled the province following the NATO intervention, appear to share this view. No doubt they were reminded of what happened to the Serbian minority who were expelled from Krajina in Croatia at the end of the conflict there. One of the most common failings of international interventions designed to unseat repressive regimes has been the failure to establish new governments respectful of human rights.

Of the many lessons to be learnt from the conflict in former Yugoslavia, one is surely that the hatreds created by ethnic conflict take a very long time to heal. This has made power sharing arrangements in Bosnia and Herzegovina as well as in Kosovo very difficult to implement. One can persist, however, with the hope that, with a bit of encouragement, moderate elements can come to power and that over time the hatreds can heal.


[*] BA (hons) LLB (hons) (UWA) LLM (int law) (ANU). Legal Practitioner, Supreme Court of New South Wales, Department of the Prime Minister & Cabinet, presently on secondment with the Commonwealth Attorney-General’s Department. The views expressed in this article are expressed in a personal and not an official capacity. I would like to thank Ms Melanie Tully and Ms Marie Wynter for comments upon an earlier draft of this article.

[1] Prifti P Socialist Albania since 1944: Domestic and Foreign Developments (MIT Press, Cambridge, 1978) 223; Zametica J The Yugoslav Conflict: An Analysis of the Causes of the Yugoslav War, the Policies of the Republics and the Regional and International Implications of the Conflict, 270 Adelphi Papers (1992).

[2] Zametica, above, note 2, 25.

[3] Bennett C Yugoslavia’s Bloody Collapse: Causes, Course and Consequences (New York University, New York, 1995) 23.

[4] Hagen W ‘The Balkans’ Lethal Nationalisms’ (1999) 78(4) Foreign Affairs 52 at 58; Zametica, above, note 2, 10.

[5] Hagen, above, note 5, 58; Hedges C ‘New Tinderbox, Same Fuse: A Serb Comes Full Circle’ New York Times 10 March 1998, A11; ‘Bloodshed in Illyria: Kosovo Could Reignite Flames in the Balkans’ The Times 4 March 1998, 19 (hereafter Bloodshed).

[6] European Action Council for Peace in the Balkans and Public International Law & Policy Group on the Carnegie Endowment for International Peace, Kosovo: From Crisis to a Permanent Solution (1997) (hereafter Crisis) <http://www.ceip.org/programs/law/kosovo.htm> Hagen, above, note 5, 58; Hedges, above, note 6, A11.

[7] Bloodshed, above, note 6, 19; Hedges, above, note 6, A11; Zametica, above, note 2, 26.

[8] Report of the International Commission on the Balkans, Unfinished Peace (1996) 114.

[9] Calabresi M ‘The Next Balkan War: Serb Repression and Albanian Nationalism Fuel a Revolt’ 151(2) Time Magazine 19 January 1998, 28; Caplan R ‘International Diplomacy and the Crisis on Kosovo’ (1998) 74(4) International Affairs 745 at 751-2.

[10] Zametica, above, note 2, p 15.

[11] Gow J ‘Deconstructing Yugoslavia’ (1991) 33(4) Survival 291, at 300; Zametica, above, note 2, 15 (estimates this number reached 165,000).

[12] See further, Heraclides A ‘The Kosovo Conflict and Its Resolution: In Pursuit of Ariadne’s Thread’ (1997) 28(3) Security Dialogue 317 at 318-20.

[13] Statement of the Contact Group of Foreign Ministers on Kosovo (24 September 1997).

[14] Bunce V ‘The Elusive Peace in the Former Yugoslavia’ (1995) 28 Cornell International Law Journal 709 at 713; Iglar R ‘The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia’s and Croatia’s right to Secede’ (1991) 15(1) Boston College International and Comparative Law Review 213; Radan P ‘Secessionist Self-Determination: The Cases of Slovenia and Croatia’ (1994) 48(2) Australian Journal of International Affairs 183 at 187-9 and 191.

[15] See SC Res 1160, 53 UN SCOR (3868th mtg), UN Doc S/Res/1160 (1998); SC Res 1199, 53 UN SCOR (3930th mtg), UN Doc S/Res/1199 (1998); and SC Res 1203, 53 UN SCOR (3937th mtg), UN Doc S/Res/1203 (1998).

[16] Legality of the Use of Force (Yugoslavia v Belgium) (Yugoslavia v Canada) (Yugoslavia v France) (Yugoslavia v Germany) (Yugoslavia v Italy) (Yugoslavia v Netherlands) (Yugoslavia v Portugal) (Yugoslavia v Spain) (Yugoslavia v U.K.) (Yugoslavia v US) [1999] ICJ Rep <http://www.icj-cij.org/> .

[17] UN Charter Art 51 provides: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of the right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.’

[18] UN Charter Art 39 provides: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Article 41 and 42, to maintain or restore international peace and security.’

[19] SC Res 1199, 53 UN SCOR (3930th mtg), UN Doc S/Res/1199 (1998).

[20] See further, O’Connell M E,‘The UN, NATO, and International Law After Kosovo’ (2000) 22 Human Rights Quarterly 57 at 77-82; Guicherd C ‘International law and the War in Kosovo’ (1999) 41(2) Survival 19 at 26-7.

[21] See UN Charter Art 43.

[22] See UN Charter Arts 53 and 107.

[23] See Arend A and Beck R International Law and the Use of Force: Beyond the UN Charter Paradigm (Routledge, London, 1993).

[24] UN Charter Art 55 provides:

[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

a. higher standards of living, of employment, and conditions of economic and social progress and development;

b. solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and

c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

[25] UN Charter Art 56 provides: ‘All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.’

[26] See for example, Asrat B Prohibition of Force under the UN Charter: A Study of Article 2(4) (1991) 56-63; Gordon E ‘Article 2(4) in Historical Context’ (1985) 10 Yale Journal of International Law 271 at 273; and Rodley N ‘Collective Intervention to Protect Human Rights and Civilian Populations: the Legal Framework’ in Rodley N (ed) To Loose the Bands of Wickedness: International Intervention in Defence of Human Rights (MacMillan, London, 1992) 14, 16.

[27] United States Diplomatic and Consular Staff in Tehran (U.S. v Iran) [1980] ICJ Rep 3.

[28] Ibid at 44-5.

[29] Ibid at 41.

[30] Ibid at 42.

[31] GA Res 2625 (XXV) 25 UN GAOR Supp (no 28) 121, UN Doc A/8028 (1970).

[32] Ibid (emphasis added).

[33] See for example, Schrijver N ‘NATO in Kosovo: Humanitarian Intervention Turns into Van Clausewitz War’ (1999) 1(3) International Law FORUM du droit international 155 at 155-6.

[34] Draft Articles on State Responsibility, Report of the International Law Commission on the Work of its Forty-Eighth Session 6 May-26 July 1996 UN GAOR – 51st Sess., Supp. No.10 (A/51/10) <http://www.un.org/law/icl/reports/1996/chap03.htm> (hereafter Draft Articles).

[35] Ibid Art 19(3)(c).

[36] Ibid Art 53(d).

[37] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US) [1986] ICJ Rep 14.

[38] Ibid at 146-9.

[39] Ibid at 108.

[40] See especially, Statute of the International Court of Justice Art 59 that provides that decisions of the International Court of Justice have no binding force except ‘between the parties and in respect of that particular case’.

[41] Convention of the Prevention and Punishment of the Crime of Genocide 78 UNTS 277 (entered into force 12 January 1951).

[42] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide [1951] ICJ Rep 15 at 23.

[43] Application of the Convention of the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) [1996] ICJ Rep 595 at 616.

[44] Radovan Karadzic and Ratko Maladic, for example, were indicted for genocide, crimes against humanity and violations of the laws or customs of war as a result of their attack against the UN designated ‘safe area’ of Srebrenica (Press Release by the International Criminal Tribunal for Former Yugoslavia CC/PIO/026-E, 16 November 1995).

[45] The trial of Milan Kovacevic, charged with crimes including genocide and complicity to commit genocide, was terminated upon the death of the accused (Prosecutor v Milan Kovacevic: Order of 24 August 1998 <http://www.un.org/icty/kovacevic/trialc2/order-e/80824MS2.htm> ) and Goran Jelisic was acquitted of genocide as the Trial Chamber considered that the necessary intent to commit genocide had not been established (Prosecutor v Goran Jelisic: Judgment of 14 December 1999 <http://www.un.org/icty/brcko/trialc1/judgement/jel-tj991214e.htm> ). The Trial of Radislav Krstic, who is also charged with crimes including genocide, is proceeding.

[46] ‘President Milosevic and Four Other Senior FRY Officials Indicted for Murder, Persecution and Deportation in Kosovo’ (Press Release by the International Criminal Tribunal for Former Yugoslavia JL/PIU/403-E, 27 May 1999).

[47] See especially, North Sea Continental Shelf Cases (F.R.G. v Denmark; F.R.G. v Netherlands) [1969] ICJ Rep 3 at paras 71-74.

[48] See generally, Adelman H ‘Humanitarian Intervention: The Case of the Kurds’ (1992) 4(1) International Journal of Refugee Law 4; Freedman L and Boren D ‘“Safe Havens” for Kurds in post-war Iraq’ in Rodley N S (ed) To Loose the Bands of Wickedness: International Intervention in Defence of Human Rights (MacMillan, London: 1992) 43, 59; Harrington M E ‘Operation Provide Comfort: A Perspective in International Law’ (1993) 8 Connecticut Journal of International Law 635 at 645; Rodley, above, note 27, 32; Sarooshi D The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Clarendon Press, Oxford 1999) 226-9; Tesón F R ‘Collective Humanitarian Intervention’ (1996) 17 Michigan Journal of International Law 323 at 346-7; Thomas C ‘The Pragmatic Case Against Intervention’ in Fordes I and Hoffman M (eds), Political Theory, International Relations, and the Ethics of Intervention, (St. Martin’s Press, New York, 1993) 91, 103.

[49] Freedman and Boren, above, note 49, 55.

[50] See generally, Crawford S M ‘UN Humanitarian Intervention in Somalia’ (1993) 3 Transnational Law and Contemporary Problems 273 at 289-90; Hutchinson M R ‘Restoring Hope: UN Security Council Resolutions for Somalia and an Expanded Doctrine of Humanitarian Intervention’ (1993) 34 Harvard International Law Journal 624 at 634; Sarooshi, above, note 49, 211-17; Tesón, above, note 49, 348-55.

[51] See for example, SC Res 814, 48 UN SCOR (3188th mtg), UN Doc S/Res/814 (1993) preamble (factors relied upon in making this determination included violations of international humanitarian law, absence of the rule of law, famine and drought and the lack of administrative institutions) and SC Res 865, 48 UN SCOR (3280th mtg), UN Doc S/Res/865 (1993), preamble (factors relied upon in making this determination included fighting, banditry, lack of order and of government and attacks against persons engaged in humanitarian and peace-keeping efforts).

[52] See, eg, SC Res 940, 49 UN SCOR (3413th mtg), UN Doc S/Res/940 (1994).

[53] See, eg, SC Res 841, 48 UN SCOR (3238th mtg), UN Doc S/Res/841 (1993) preamble (factors relied upon in making this determination included the humanitarian crisis, the climate of fear and persecution, economic dislocation and the failure to reinstate the government of President Jean-Betrand Aristide) and SC Res 917, 49 UN SCOR (3376th mtg), UN Doc S/Res/917 (1994), preamble (factors relied upon in making this determination included a lack of democracy, the importance of a proper and secure environment for legislative action, failure to comply with agreements, killings, arbitrary arrests, illegal detentions, abduction, rape, enforced disappearances, denial of freedom of expression and the freedom of armed civilians to operate). See further, Reisman M W ‘Haiti and the Validity of International Action’ (1995) 89(1) American Journal of International Law 82.

[54] See, eg, SC Res 827, 48 UN SCOR (3217th mtg), UN Doc S/Res/827 (1993), preamble (factors relied upon in making this determination included widespread violations of international humanitarian law, including mass killings, organised and systematic detention and rape of women as well as ethnic cleansing); SC Res 836, 48 UN SCOR (3228th mtg), UN Doc S/Res/836 (1993), preamble (factors relied upon in making this determination included violations of international humanitarian law, ethnic cleansing, refusal of the Bosnian Serbs to sign the Vance-Owen Peace Plan, the plight of the civilian population and the obstruction of humanitarian assistance) and SC Res 913, 49 UN SCOR (3367th mtg) UN Doc S/Res/913 (1994), preamble (factors relied upon in making this determination included the situation in Gorazde and other areas of Bosnia and Herzegovina, attacks on civilians and humanitarian relied workers, the failure of the Bosnian Serbs to negotiate in good faith and to uphold their commitments and the harassment and detention of United Nations Protection Force personnel). See further, Kresock D M ‘“Ethnic Cleansing” in the Balkans: The Legal Foundations of Foreign Intervention’ (1994) 27 Cornell International Law Journal 203.

[55] See for example, SC Res 929 49 UN SCOR (3392nd mtg) UN Doc S/Res/929 (1994). See further, Tesón, above note 49, 362-5. See generally, Human Rights Watch, ‘Leave None to Tell the Story’: Genocide in Rwanda (1999); Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda (1999) <http://www.un.org/News/ossg/rwanda_report.htm> .

[56] See for example, Burmester B F ‘On Humanitarian Intervention: The New World Order and Wars to Preserve Human Rights’ (1994) 1 Utah Law Review 269; Nanda V P ‘Tragedies in Northern Iraq, Liberia, Yugoslavia, and Haiti – Revisiting the Validity of Humanitarian Intervention Under International Law – Part 1’ (1992) 20(2) Denver Journal of International Law and Policy 305 at 315-19.

[57] See for example, Leifer M ‘Vietnam’s Intervention in Kampuchea: The Rights of State v The Rights of People’ in Fordes I and Hoffman M (eds), Political Theory, International Relations, and the Ethics of Intervention (St. Martin’s Press, New York, 1993) 145; Nanda, above, note 57, 321-3.

[58] See for example, Nanda, above, note 57, 319-21; Ronzitti N Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (M Nijhoff Publisher, Dordect, 1985) 102-5; Tesón F R Humanitarian Intervention: An Inquiry into Law and Morality (1988) 161-4, 169-70; Thomas, above, note 49, 93; Wolf D ‘Humanitarian Intervention’ (1988) 9 Michigan Yearbook of International Legal Studies 333 at 349-51.

[59] See for example, Wippman D ‘Enforcing the Peace: ECOWAS and the Liberian Civil War’ in Damrosch L F (ed), Enforcing Restraint (Council of Foreign Relations Press, New York, 1993) 157.

[60] Tesón, above, note 59, 15.

[61] Senator Jesse Helms, Chairman on the Senate Foreign Relations Committee, remarks to the United Nations Security Council, 20 January 2000 <http://www.usia.gov/topical/pol/usandun/helmstx.htm> .

[62] Committee on Human Rights, General Comment 23, Article 27 UN Doc HRI/GEN/1/Rev 1 at 38 para 6.2 (1994).

[63] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (‘Minorities Declaration’) (GA Res 47/135, annex, 47 UN GAOR Supp (no 49) at 210, UN Doc A/47/49 (1993)) <http://www1.umn.edu/humantrs/instree/d5drm.htm> .

[64] Ibid, Art 1.

[65] North Atlantic Treaty, signed 4 April 1949, 34 UNTS 243 (entered into force 24 August 1949) <http://www.nato.int/docu/basictxt/treaty.htm> .

[66] Ibid (emphasis added).

[67] Ibid (emphasis added).

[68] UN Charter Art 53(1) (emphasis added).

[69] See further, Falk R A ‘Kosovo, World Order, and the Future of International Law’ 93(4) American Journal of International Law (1999) 847 at 852.

[70] The Alliance’s Strategic Concept: Approved by the Heads of State and Government Participating in the Meeting of the North Atlantic Council in Washington DC on 23rd and 24th April 1999, paras 15 and 39.

[71] NATO Asserts Right to Act Without UN Approval: Alliance Reaffirms Expansion Plans CNN News April 24 1999. See further, Kay S ‘After Kosovo: NATO’s Credibility Dilemma’ (2000) 31(1) Security Dialogue 71.

[72] The Case Concerning Legality of the Use of Force (Yugoslavia v Belgium) (Yugoslavia v Canada) (Yugoslavia v France) (Yugoslavia v Germany) (Yugoslavia v Italy) (Yugoslavia v Netherlands) (Yugoslavia v Portugal) (Yugoslavia v Spain) (Yugoslavia v UK) (Yugoslavia v US) 1999 <http://www.icj-cij.org/> .

[73] SC Res 1244 54 UN SCOR (4011th mtg) UN Doc S/Res/1244 (1999).

[74] SC Res 1244 54 UN SCOR (4011th mtg) UN Doc S/Res/1244 (1999), annex 1, principle 6.

[75] See for example, Bass W ‘The Triage of Dayton’ (1998) 77(5) Foreign Affairs 95.


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