Did Kosovo Herald a New Era for NATO and the United Nations?
A talk delivered by Ambassador Gunnar Pálsson*
at the University of Iceland
14 February 2003
* The author served as the Permanent Representative of Iceland to the United Nations in 1994 - 1998 and as Permanent Representative of Iceland to NATO in 1998 - 2002.
The military intervention of NATO against the Federal Republic of Yugoslavia (FRY) in the Spring of 1999 marked the first time in its fifty years history that the Alliance had resorted to the use of armed force against a sovereign state.
Did this event herald a new era in international affairs, where states or coalitions of states could, in the name of human rights or humanitarian law, take military action outside the established mechanisms for enforcing international law? Questions of this kind continue to be raised in the aftermath of the Kosovo crisis, in particular as regards the role and responsibility of NATO vis-a-vis the Security Council of the United Nations.
The UN Charter
The "established mechanisms" for enforcing international law, normally refers to the United Nations; the Charter and, under its authority, the Security Council.
The United Nations Charter containes a fundamental principle of modern international law (see the 1969 Vienna Convention on the Law of Treaties), the principle of the non-use of force. It states that "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 ..." (Article 2, paragraph 4).
On this view, authoritative among the international community, the use of force is basically contrary to international law, unless justified with reference to the right of states to self-defence, also provided for in the Charter (Article 51), the authorization of the Security Council under Chapter VII of the Charter, dealing with threats to international peace and security, or some other rule of exception, such as the doctrine of humanitarian intervention.
The Charter enshrines another fundamental principle of international law, the principle of non-intervention in the internal affairs of states (Article 2, paragraph 7). Whatever the intention at the time of the United Nations founding in 1945, it is nowadays widely accepted that human rights can no longer be regarded as belonging exclusively to the internal jurisdiction of states. Here, one can point to a variety of instruments, political and legal, developed within the UN itself (the Commission on Human Rights, ECOSOC, expert committess on the rights of women and children) to monitor and control the implemetation of human rights treaties.
The Security Council
The Security Council has primary responsibility for the maintenance of international peace and security (Article 24). Under Chapter VII, the Security Council is the sole source of legitimacy on the use of force in international relations and the only body that can enforce international law. This, as has been pointed out, is without prejudice to the sovereign right of self-defence.
The Charter, including its provisions on the role of the Security Council, is sometimes held up as the nearest thing we have to a constitution of the international community. It has been duly ratified by all United Nations member states and must be regarded as law of the land. Similarly, all resolutions passed by the Security Council are legally binding for the member states.
How does NATO}s decision to strike militarily at the FRY stand up against such a regime?
The Kosovo crisis
On 24 March 1999, NATO launched Operation Allied Force against the Federal Republic of Yugoslavia. The operation, which took the form of a series of precision-guided air strikes against strategically important targets, continued for 77 days, until 10 June 1999, when President Milosevic began full withdrawal of Yugoslav forces from Kosovo.
The episode is commonly referred to as the war in Kosovo. But it is essential to bear in mind the specific and limited objectives of the intervention. The NATO member states did not declare war on the FRY. There was no intention to defeat the FRY as such militarily or to dislodge its government.
In fact, the goals of the intervention were not even defined by NATO itself. What NATO set out to do was to compel the FRY to accept the demands that had repeatedly been put forward by the so-called "international community"; the United Nations, the Contact Group, the G-8, the OSCE, the Western European Union and the European Union:
- The parties to the conflict, the Serbs and the Kosovar Albanians, had to cease armed hostilities and initiate peace negotiations;
- The FRY should withdraw the bulk of its military, armed police and heavy weapons from Kosovo;
- International humanitarian and relief organizations should be allowed unlimited access;
- The parties should co-operate unconditionally with the International Criminal Tribunal for the Former Yugoslavia; and
- Refugees should be enabled to return to their homes.
After considerable blood-letting, the FRY finally acceded to those demands in early June 1999. The humanitarian catastrophe was ended, an international peace force, (KFOR) lead by NATO and sanctioned by the Security Council (UNSCR 1244), was successfully deployed and the international community assumed responisbility for the civil administration through the United Nations Mission in Kosovo (UNMIK). Almost four years later, the situation in Kosovo is stable and the province has its first democratically elected government. The reconstruction effort continues and Mr. Milosevic, an alleged war criminal who brought death and destruction to Kosovo and other parts of Yugoslavia, remains in the custody of the ICTY in The Hague, awaiting justice.
By hindsight, the effort as a whole was a resounding success. Nevertheless, NATO}s military intervention cost lives - as most military operations do - including lives of innocent people. Mistakes were acknowledged to have been made in the conduct of the war and a row opened with NATO}s Russian partners over NATO}s role vis'a'vis the United Nations Security Council. Some contended that the United Nations had been sidelined and disputed the legitimacy of the operations according to international law. So how was the intervention justified?
The legal basis
Anyone who examines the legal basis of the intervention, will be struck by two basic facts; there was no Security Council resolution specifically authorizing the air strikes and no agreed legal clarification of the operation was adduced by the member states of the Alliance.
While there was no single resolution mandating NATO to do the United Nations} bidding, the Security Council had passed three separate resolutions pertinent to the situation in Kosovo (UNSCR 1160, 1199 and 1203), all with reference to chapter VII of the United Nations Charter. Of those, SCR 1199 (23 September 1998), was the most important one, because it detailed the demands of the international community on the FRY under international law. In the resolution it was determined that the situation in Kosovo constituted a threat to regional peace and security. The resolution testified that military and police forces under the control of the FRY had committed serious and widespread violations of international humanitarian law. It also considered FRY actions to constitute serious violations of commitments undertaken by the FRY under the Helsinki Final Act, as well as its obligations under international law of human rights. The resolution also took aim at the Albanian Kosovars by condemning all acts of violence by any party as well as terrorism. But taken as a whole, the resolution could only mean - and was widely understood to mean - that the situation in Kosovo was no longer a matter of the domestic jurisdiction of the FRY. Therefore, the principle of non-intervention was no longer deemed to hold.
Still, no specific action, by force of arms, was mandated from NATO or other regional organizations. Unlike other previous Security Council resolutions passed under chapter VII, for example on Bosnia and Somalia, where intervention had been authorized on humanitarian grounds, 1199 did not authorize member states "to take all necessary measures" to enforce compliance. Arguably, no exemption had been made from the principle of the non-use of force in the case of the FRY.
In the strictest legalistic sense, NATO had not been authorized to take action. But was it for that reason acting unlawfully in launching air strikes against the FRY? If it was, it was not the first time in recent memory that members of the international community had taken military action against other states without Security Council authorization. For example, Tanzania}s invasion of Uganda in 1978 had not been condemned, mainly because of the serious human rights violations perpetrated within the country by President Amin. By the same token, safe areas had been established in the Kurdish regions of Iraq, following atrocities committed by Saddam Hussein, without a Security Council mandate. In other words, there were recognized precedents for humanitarian interventions without explicit Security Council approval.
Such precedents would not, of course, have established the necessary legal basis. But there were other "extenuating circumstances" that had to be taken into account:
- For some months before the intervention, there had been extreme- and growing - humanitarian distress in Kosovo, requiring urgent relief. Massacres were taking place and hundreds of thousands of people had been displaced from their homes. United Nations relief organizations, including the UNHCR, had admitted themselves incapable of coping with the situation.
- Other means had been exhausted and no practicable alternative in sight, if lives were to be saved. Belgrade had been given repeated ultimatums that went unheeded.
- The international community was playing for exceptionally high stakes. Instability in Kosovo threatened to undermine progress achieved on the basis of the Dayton accords in Bosnia. It threatened to spill over and affect the stability and security of Albania and the FYROM. It could have ended in conflagration in Southeastern Europe and beyond.
- As member states of the United Nations, many of the Alliance member states would have welcomed a Security Council resolution giving the intervention a clear legal basis. But the Security Council was at an impasse, incapable of resolving a dispute between permanent members, some of whom had early on shown clientist leanings in dealing with Mr. Milosevic.
- Last but not least, inaction, it was feared, would damage the credibility of both the United Nations and the Alliance, especially as the Security Council had already decided that the situation in Kosovo was a threat to regional peace and security. Only a few years before, peoples' faith in the efficacy of the United Nations had been seriously shaken, both in Rwanda (1994), where the organization had sat on the fence while hundreds of thousands of innocent people had been slaughtered, and in Bosnia, where it had been powerless in trying to forestall a massacre in Sebrenica (1995). The Alliance, having unsuccessfully attempted a policy of dissuasion, had no other choice but to make good on its threats against Milosevic if it wanted to be taken seriously ever again. What the issue essentially boiled down to was whether the international system, absent the necessary unity in the Security Council, was able to deal with a serious threat posed to international law and order by a solitary tyrant.
Why then, did not the Alliance member states establish among themselves what the legal basis was or should be? It can never be sufficiently emphasized that all the member states had satisfied themselves that the air strikes were legal and consistent with the "established mechanisms" for enforcing international law. None would have countenanced acting outside the framework of the law or placing NATO above the law. On the contrary, the action taken was seen as restoring the sanctity of that law, even if it meant cutting a procedural corner or two. Owing to their different constituencies and legal traditions, it was nevertheless left to individual member states to work out the precise terms in which the action was to be justified.
What are students of the law of armed conflict to make of all this?
First of all, there can be no doubt that the nineteen Allied governments responsible for the military intervention in Kosovo in the Spring of 1999 have been vindicated in the way they responded to the situation. The intervention was, under the circumstances, the right thing to do. To allow a tyrant to engage in repression and ethnic cleansing with impugnity on our very own doorsteps would have set a precedent far more dangerous for the future of Europe than taking action in the absence of the desired authorization of the United Nations.
Does that mean that Kosovo has set a pattern for things to come; that coalitions of states can from now on take military action outside the "established mechanisms" for enforcing international law? We need to be careful, in responding to such a question, to not concede the very premise on which the question is based; that a coalition of states, in this case NATO, took independent military action outside the framework of international law. This was hardly the case. The action did not proceed in a diplomatic vacuum but was part of a comprehensive approach, subscribed to by the international community, to promoting the goals of security, stability, democracy and peace. Fundamentally, it was an exercise in coercive diplomacy, meant to force an outlaw party to comply with the demands set out among other things in the resolutions of the United Nations Security Council. From this point of view, NATO}s military intervention in Kosovo was not so much a challenge to the international system as an effort to shore it up.
Was it then a one-time event, never to be repeated? This we cannot predict. In many ways, the Kosovo situation was unique. At the same time, its lessons will no doubt be absorbed into our common stock of prudential rules, to be used in the future as circumstances may require. But they are not lessons that oblige us to abandon the current international security system founded on the Charter of the United Nations. That system, including the principle of the non-use of force, will remain our ultimate frame of reference for the forseeable future - if only because we have no other.
Did Kosovo Herald a New Era for NATO and the United Nations?