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Â In seeking to examine the possible legal bases for the North Atlantic Treaty Organisation’s (NATO) intervention in Kosovo in 1999, this essay will look to consider the relevant substantive law and make use of secondary literature in the form of academic opinions derived from journal articles and text books to inform and support the arguments made.
The North Atlantic Treaty Organization’s (NATO) intervention in Kosovo at the start of 1999 led to some significant controversy and question marks regarding the action’s legality that was taken, its effect as a precedent, and also in relation to developing new procedures of international law. This is because those that participated in this state of affairs were faced with a significant legal and moral quandary in relation to prohibitions of international law regarding the use of force to limit the occurance of grievous international human rights violations. With this in mind, there is a need to show an understanding of the fact that most of those involved with the crisis in Kosovo looked to maintain what were considered to be the greatest law and morality standards. The problem is that the political leaders involved in the actions that they took fell someway short of their obligations in this regard with the actions of Slobodan Milosevic (leader of the Federal Republic of Yugoslavia (FRY)) being considered to be particularly significant. Such a view is founded upon the fact that the FRY committed several significant grievous international crimes against ethnic Albanians living nationally – although both the ethnic Albanians and Serbs partook in aggressive acts against one another so as to both be considered to be at fault.(1) In addition, matters in this regard have arguably only been further exacerbated by the fact that the Kosovo Liberation Army (KLA) also partook in several momentous terrorist and aggressive activities acts against the Serbs and FRY forces. At the same time, however, it is interesting to note that the United Nations (UN) was also somewhat at fault in view of the fact it did not actually serve to effectively meet the problems inÂ Kosovo in what is considered to be a timely and effective manner in keeping with its responsibility.
NATO’s intervention in Kosovo served to not only violate the terms of the UN Charter 1945 but also international law to risk destabilising the rule of law in this regard that served to prevent an individual countery or particular group of countries from involving themselves in such matters of international concern regarding the use of force withinout the UN Security Council’s (UNSC) authorisation or self-defense. As a result, no matter how well intenioned it may be argued that NATO’s actions were, they could still be deemed to be an unfortunate precedent for countries to look to use force to prevent international crimes being committed in other countries. Therefore, the recognition of the doctrine of humanitarian intervention could bring about a significant escalation of violence internationally along with a certain amount of discord and disorder so as to then reduce the level of human rights protection around the globe. With this in mind, there is a clear need for better rules of law to be developed to limit the potential for these terrible risks and safeguard human rights because international law in contemporary times served to prevent possible violations of both human rights and humanitarian law perpetrated by countries against their own people. The reason for this is that every state must look to act in response to violations through the utilisation of both non-forcible actions and countermeasures to appease the international community.
On this basis, it is also pertinent for a selection of both intergovernment and non-governmental organisations to look to partake in resolving such problems. However, NATO’s activities in Kosovo served to raise question marks in relation to as to whether international law serves to provide forÂ the use of force by foreign countries as individuals or as a collective with a view to preventingÂ violations of international human rights and humanitarian law in a state like Kosovo. For some considerable time the UNSC involved itself in events in Kosovo leading to the passing of three Resolutions under Chapter VII of the UN Charter 1945 before NATO’s bombing began (2) as these resolutions established a plan of action that implemented the Organization for Security and Co-operation in Europe (OSCE) and the Kosovo Verification Mission (KVM) in Kosovo. (3) In addition, the UNSC Resolutions also required the FRY, KLA, and all other countries and organisations to prevent the use of force and limit human rights violations. (4) Therefore, although these Resolutions did not serve to provide for the the use of force by outside entities, (5) they did serve to reaffirm the FRY’s sovereignty and territorial integrity (6) since outside entities did not have the authority to be able to look to take actions forcibly. With this in mind, with a view to avoiding potential vetoes, the UNSC Resolution that was adopted prior to NATO’s bombing did not serve to retroactively legalise their acts since they instead only served to prospectively allow for foreign countries to be able to act in the FRY so as to maintain peace. (7)
Matters were then only further exacerbated by the fact that none of the internationally permissible uses of force under the terms of the UN Charter regarding acts of enforcement by the UNSC under Chapter VII and self-defense under Article 51 serves to offer justification legally for acts to be able to be carried out by NATO. (8) On this basis, the International Court of Justice (ICJ) then served to acknowledge such problems in relation to its decisions regarding the refusal to fulfil the FRY’s requests for safeguards through the provision of interim measures. (9) With this in mind, many academics and government officials have looked to provide for the recognition of exceptions to the terms of the UN Charter 1945 regarding placing limits in relation to the use of force through liberal interpretations of "territorial integrity" and what is considered to be "inconsistent with the purposes of the Charter" under Article 2(4). (10) However, whilst such arguments may be considered somewhat baseless since the use of force in bombing another nation’s state then violates its territorial integrity irrespective of what motivates them, (11) the UN Charter 1945′s primary purpose is to safeguard the interests of succeeding generations against the potential for war (12) with a view to then maintaining peace and security internationally. (13) At the same time, however, human rights protection internationally has also come to be recognised as the principle purpose behind the enactment of the UN Charter 1945 - although it also needs to be understood what is subsidiary to the objective of preventing war and the use of force internationally in relation to limits upon the use of force under the Charter.(14) Nevertheless, it has been recognised that neither regional organisations use of force against nonconsenting countries nor interventions to provide to support for domestic insurrections is allowed without the authority of the UNSC or resorting to the use of self-defense whilst any other use of force is no longer permitted under the UN Charter 1945.(16)
In spite of the limitations recognised as present in keeping with the terms of the UN Charter 1945, however, interventions for humanitarian reasons have offered a legal basis for action on the part of NATO. Nevertheless, unfortunately, humanitarian intervention is not an exception to the use of force under the terms of the UN Charter 1945. (17) Moreover, ‘humanitarian interventions’ doctrine is somewhat ill-defined with a lack of a rule of law allowing for the use of force where problems arise as was the case in Kosovo. This is because the majority of cases where the doctrine is applied commonly involve state actions being undertaken so as to then safeguard their people against potential danger that may be said to fall under the label of self-defense instead as a result. (18) However, there in view of the potential risk of abuse there is a need to look to closely adhere to what are considered to be the fundamental limitations of the use of force under the UN Charter 1945 even where it could be considered lawful to look to protect a nation’s people. Finally, it is also to be appreciated that few if any interventions are available whereby countries intervening have been able to expressly found their activities on humanitarian intervention in support of such a right.
NATO’s intervention in Kosovo may, however, have established a precedent for developing new international law to safeguard the recognition of people’s human rights. The reason for this is that the general understanding of international law in this regard could end up varying as a result of breaches of the current law and new state practice’s development. However, the intervention that transpired in Kosovo’s case served to present some significant problems. By way of illustration, in the ICJ’s decision in the Nicaragua case, it was found that, in order to be able to challenge an international law rule, state practice needs to be based upon the variance in the rule of law. (25) Nevertheless, it has been recognised that NATO has proved unable to be able to justify its activities founded upon a rule of law including humanitarian intervention throughout its campaign. (26) As a result, it has proved to be only in relation to most recent suits against countries involved with NATO intervening in the Kosovo conflict before the ICJ that the respondents finally started to identify legal justifications for the actions taken (27) – although only Belgium mentioned humanitarian intervention as a potential justification at law. (28)
Another significant challenge to developing international law already in place in this regard is that the rule that serves to limit the use of force has been derived from the terms of the UN Charter 1945. However, by way of its specific provisions, the UN Charter 1945 has served to override all inconsistent treaties (29) and, as a result, it is to be expected that a similar rule will be applicable to developments in relation to international law generally. Therefore, it would seem that the only effective solution is to look amend the UN Charter 1945 through the recognition of what is perhaps best labelled as an equal status norm (30) and that the doctrine of humanitarian intervention is merely a new and improved interpretation of the Charter. In the alternative, however, it could also be argued the legal system that has developed internationally has varied significantly since the UN was established leading to the development of humanitarian intervention as a right. Nevertheless, it is also to be appreciated that when the UN Charter was established international law was fofussed upon the recognition of state sovereignty as foremost importance. (32) Moreover, it would seem that new developments in international human rights law have authorised all states to act in the face of grievous violations of human rights. (33)
On this basis, it would seem arguable contemporary public international law and an interpretation of the UN Charter 1945 have served to allow for humanitarian intervention without authority under Chapter VII or a need to act in self-defense. However, it is also to be understood that widespread state practice does not exist in support of this view in with of the fact that previous UN General Assembly Resolutions have condemned the value of specific interventions, other Resolutions and also declarations serving to address an array of inter-related subjects. (34) As a result, a doctrine of humanitarian intervention to legitimise the actions of NATO in Kosovo is unavailable. Nevertheless, as a matter of policy, international law should make humanitarian intervention legal and would also serve to safeguard human rights that are already included within the remit of both international law and the UN Charter 1945. Conversely, however, there is a need to understand that humanitarian intervention can present grievous risks of abuse illustrated by almost all of the previous actions that have been put forward for its support. (36) The reason behind this is that once it is put into place such a right would be difficult to counter so that humanitarian intervention has lead to serious difficulties despite its well-intended objectives.
In spite of these limitations and risks, however, the value of a doctrine of humanitarian intervention could be increasing - although as to whether many states may accept this rule is somewhat striking remains to be seen. With this in mind, with a view to keeping interventions illegal and needing countries to break the law may be the best way to serve to limit abuse. On this basis, if the international community wants to generate new laws that allow for humanitarian intervention, this should only apply to situations involving significant violations of human rights. Sufficient support was, however, previously somewhat lacking in view of the fact that events in Kosovo and other similar developments have served to vary the situation. Nevertheless, the existing law under the terms of the UN Charter 1945 has given the UNSC the right to then be able to make such interventions. (37) But, aside from the period immediately after the UN’s inception, such a procedure has not proved all that efficacious. (39) Therefore, if humanitarian intervention beyond the UN Charter 1945′s traditional interpretation is to be sought, this must be founded upon principles based on arguments that have been made in its favour with a view to limiting the potential for abuse. (40) In addition, the necessary international consensus could be established either by superseding general international law on the basis of agreement of the UN’s membership and not underestimating the difficulty of accomplishing this objective. One could, however, argue this plan would serve to conform to the UN Charter by – (a) promoting human rights; (b) minimising the potential and degree of intervention; (c) implicitly earning U.N. authorisation, and (d) building upon ambiguities in the Charter regarding regional organisations’ authoity. Nonetheless, unfortunately, it is difficult to justify NATO intervention in Kosovo even on these suggested grounds if one focuses on the situation at the time when the intervention began. (43)
Article Title: Anticipatory Humanitarian Intervention in Kosovo. Contributors: Jonathan I. Charney – author. Journal Title: Vanderbilt Journal of Transnational Law. Volume: 32. Issue: 5. Publication Year: 1999. Page Number: 1231.