The Kosovo Situation and NATO Military Action
By Frederic L. Kirgis
Kosovo is a province of Yugoslavia, not an independent state. Even though about 90 percent of its population is ethnic Albanian, the international community has not supported a right of secession for Kosovo. Since Kosovo remains a part of Yugoslavia in fact and in law, the current military action raises questions of external intervention in civil strife. In this case, though, the civil strife is likely to endanger peace and security in neighboring states and has already created large refugee flows into those states.
Until the advent of the United Nations, international law had little to say about what a government did regarding its own citizens in its own territory. In the U.N. era, it has become well established that governments do not have a free rein to mistreat their own citizens, and a wide range of international human rights standards has been established to prevent or rectify such mistreatment. The right of self-determination is one of the currently-recognized human rights, but it has not normally been regarded as a right of an ethnic or other minority to secede. It does, however, protect certain civil and political rights of ethnic groups as well as of individuals. The international community has treated it as applicable to the Kosovo situation, in the form of a right to increased autonomy within the Yugoslav state. But even if a central government, such as the government in Belgrade, is depriving a group of its right of self-determination, that alone does not permit intervention by external armed forces.
The United Nations Charter provides a mechanism for legitimating NATO armed intervention. Regional arrangements, such as NATO, are expressly permitted under Chapter VIII of the Charter. But Chapter VIII, Article 53, prohibits enforcement action (as distinguished from action in self-defense) by regional agencies without the authorization of the U.N. Security Council. In 1962 the International Court of Justice said that enforcement action is coercive action in the context of Chapter VII, which deals with threats to the peace, breaches of the peace and acts of aggression. If the NATO action is designed to coerce the Yugoslav government to accept the allied peace plan for Kosovo, it would require Security Council authorization under Article 53. On the other hand, if the NATO action is designed to ensure humanitarian relief for the people of Kosovo or merely to help them to repel armed aggression, one could argue that Security Council authorization may not be necessary.
In 1998, Security Council resolution 1199 expressed deep concern for the deterioration of the humanitarian situation in Kosovo, including reports of violations of human rights and of international humanitarian law, and emphasized the need to ensure that the rights of all inhabitants of Kosovo were respected. By invoking Chapter VII of the U.N. Charter, the Council implicitly found that there was a threat to the peace, breach of the peace or act of aggression of an international character. It demanded (among other things) that Yugoslavia withdraw its security units used for civilian repression, enable effective international monitoring to be done in Kosovo, facilitate the safe return of refugees and displaced persons, and make rapid progress toward a political situation in Kosovo. The Council also called upon U.N. member states to provide adequate resources for humanitarian assistance in the region.
Resolution 1199 thus expressly acknowledged that there is a situation in Kosovo of the nature covered by Chapter VII and recognized the role Yugoslav forces have played in creating the humanitarian crisis in the province, but it did not expressly authorize forceful intervention. The U.N. Secretary General, Kofi Annan, has said that in his view only the Security Council has the authority to decide that the internal situation in any state is so grave as to justify forceful intervention. The clear implication is that if any state or alliance, such as NATO, could intervene on its own, the U.N. system of collective security could be endangered or destroyed.
There are two possible arguments for intervention without Security Council authorization, but they both require an extension of recognized principles beyond the limits heretofore applied to them. The first is based on a limited right of humanitarian intervention to aid groups held captive or subjected to grave physical danger. The justification for humanitarian intervention is strongest when the intervening states are acting to protect their own nationals, as in the case of Israel's 1976 raid to release its nationals being held hostage at the airport in Entebbe, Uganda. The extended argument would be that in exceptional cases where peaceful means of alleviating a humanitarian crisis inflicted by a state on its own nationals have failed, and where the Security Council has recognized a threat to international peace, forceful intervention would be lawful so long as it is proportional to the situation.
The second argument is based on an extension of the right of collective self-defense. That right is recognized by Article 51 of the U.N. Charter, if the Security Council has not acted to deal with an armed attack. The right of self-defense, though, has traditionally been regarded as legitimate only in the case of an armed attack on a state. Even if the Kosovo authorities have requested self-defense help from NATO, since Kosovo is not a state under international law, the right of collective self-defense would have to be stretched to apply here. The argument for stretching it would stress the international community's recognition of the Kosovars as an entity entitled to a substantial measure of autonomy (and thus entitled not only to defend itself, but also to request others to help, so long as the help is proportional to the situation).