The Kosovo Situation and NATO Military Action
March 12, 1999
When the Yugoslav government refused to sign the American-drafted peace accord for Kosovo, and after repeated warnings to Yugoslavia, NATO forces have begun an aerial bombing campaign against Yugoslav military targets. The question arises whether international law permits the use of armed force against Yugoslavia under these circumstances.
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).
About the Author:
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.
Counterpoint: Human Rights Should Know No Boundaries
Printed in The Washington Post.Sunday, April 11, 1999.Outlook Section
The Kosovo Albanians I got to know while working on a book on nationalism in the early 1990s had a way of bidding farewell that I shall never forget. "Next time," they would say, "may we meet in free and independent Kosovo." Most of them, I learned, were not interested in actually changing the borders of their province; for them, self-determination meant choosing their own government and gaining some measure of independence from Serbia. They talked about being part of a free Europe, where frontiers would be fluid and permeable, and the rights of minorities would be protected.
All of this seemed like a fantasy as the fighting began in the summer of 1998. Yugoslav President Slobodan Milosevic believes in borders--and believes in going to any lengths to retain them. Specifically, he believes in the use of force--including mass expulsion and paramilitary hit squads--to keep Kosovo within Serbia, within Yugoslavia. The international community also believes in borders--and has questioned the wisdom and legality of crossing them to settle internal disputes in a sovereign state. The legal debate concerns a tension between two competing principles: respecting the territorial integrity of states and guaranteeing universal human rights and self-determination. In fact, it is a debate about nothing less than the very purpose of the United Nations. The international community's response to the crisis in Kosovo provides a test case of these competing views.
Those who cling to existing borders view the fundamental purpose of the U.N. as ensuring global security by maintaining the status quo. Others--and I fall firmly into this group--contend that to emphasize security without regard for human rights sacrifices the core purpose of the organization--namely the promotion of peaceful and just societies.
Two weeks ago, when the American Society for International Law met in Washington, that conflict came to the fore in a series of heated arguments. At face value, the words of the U.N. Charter, the most fundamental document of international law, appear to favor anti- interventionists, who believe that intervention is susceptible to misuse and that what a state does within its own borders is largely its own business. Article 2(4) of the charter, which was adopted in 1945, clearly declares that states "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state . . . ." Exceptions exist where a state acts in self-defense or where the U.N. Security Council finds a "threat to the peace, a breach of peace or act of aggression" and authorizes the use of force.
In the case of Kosovo, each of these exceptions is problematic. The self-defense exception has been read narrowly. States may use force against other states only to defend themselves and their allies from actual attack (and not from mere anticipation of attack). The neighboring states of Albania and Macedonia have not been attacked, and the self-proclaimed Albanian Kosovo was never recognized as a state. Thus, the self-defense exception would have to be stretched to apply to Kosovo.
Nor does the Security Council authorization exception apply. Three U.N. Security Council resolutions on Kosovo, which Serbia has flagrantly disregarded, found the existence of a threat to the peace and enjoined Serbia to take certain actions, such as reducing troops. But it would be a strain to contend that those resolutions authorize the use of force. What's more, at the bidding of Russia and China, the Security Council recently and explicitly rejected the use of force.
Anti-interventionists further support their argument by pointing out that another article of the U.N. Charter forbids the U.N. and individual states from intervening in "matters which are essentially within the domestic jurisdiction of any state." But this article also supports the notion of humanitarian intervention. Since at least 1945 and the post-World War II Nuremberg trials, gross violations of fundamental human rights are not considered solely within the domestic jurisdiction of any state but matters of concern to the entire international community.
Read on a little further in the charter, and you will find Articles 55 and 56, which implore "all Members [to] pledge themselves to take joint and separate action" to promote "universal respect for, and observance of, human rights and fundamental freedoms for all," suggesting that the U.N. Charter not only permits intervention on humanitarian grounds, but in some cases requires it.
It's not that humanitarian intervention is a new concept. (Hugo Grotius, the father of international law, recognized the principle as long ago as the 17th century). The broad acceptance of human rights principles is a recent phenomenon, however. And as human rights have gained acceptance, the notion of state sovereignty has lost ground: Where a state is incapable of protecting human rights or is itself the perpetrator of abuses, human rights cannot be guaranteed without eroding the ancient principle of state sovereignty.
One reason for many international lawyers' caution about applauding the doctrine of humanitarian intervention is that, in the colonial and Cold War periods, it could be misused by strong states as a pretext for vigilante activity and for the occupation of weaker and politically disobedient countries (some people would include the U.S. interventions in Grenada in 1983 and in Panama in 1989 as examples). However, the post-Cold War era provides us with an opportunity to salvage the doctrine. Drawing from the U.N. Charter itself, U.N. Security Council resolutions and other international documents and decisions, we need to identify workable criteria that limit the scope of humanitarian intervention so as to respect borders. Where human rights abuses target a particular racial, ethnic or religious group, the argument for intervention is strong.
Meaningful humanitarian intervention does not threaten world order. Rather, it vindicates the fundamental principles for which the United Nations was created.
Bajram Kelmendi, an ethnic Albanian from Pristina and one of Europe's leading human rights lawyers, used to say to me, "We may not win, but the law is on our side." Two weeks ago, he and his two sons were murdered by a Serbian hit squad. Their deaths underline a need for a human rights vision that transcends borders.
About the Author:
Julie Mertus, formerly a visiting professor at Emory, is a professor of law at Ohio Northern University. She recently returned from a fact-finding mission in the Balkans and is the author of a forthcoming book on Kosovo.
Branko M. Rakic
Professor Kirgis gave a detailed analysis of possible arguments for NATO's intervention in Yugoslavia without authorization of the Security Council. He concludes that there are two possible arguments of this kind, both of which require "an extension of recognized principles beyond the limits heretofore applied to them".
The principles evoked by professor Kirgis are in fact exceptions to the general principle of prohibition of use of force in international relations, which is certainly the paramount principle of international public law
One of the basic principles of law interpretation, not only of international law but of law in general, is the principle of prohibition of extensive interpretation of provisions that are exceptions to the more general and higher legal principles. Even the ancient Romans knew this and they created the following maxim: EXCEPTIONES SUNT STRICTISSIMAE INTERPRETATIONES, EXCEPTIONES NON SUNT EXTENDENDA (exceptions are strictly interpreted, exceptions cannot be extended).
It is clear that rules giving the possibility of the use of armed forces in international relations are an exception to the prohibition against war and that recourse to war can be allowed only by strict application of the exceptions authorizing the use of force and with strict adherence to established procedures (in this case this would mean the authorization of the UN Security Council).
Without going into more details (and there are more details in professor Kirgis' legal arguments that show further weaknesses for justifying the aggression against Yugoslavia) and especially without going into an analysis of the allegations used for justification of the military intervention against Yugoslavia, I believe that this comment by itself is sufficient to prove that NATO intervention against Yugoslavia CANNOT be justified by any legal argument.
About the Author:
Branko M. Rakic, Faculty, Belgrade University School of Law