Anticipatory humanitarian intervention in Kosovo.

• Author: Charney, Jonathan I.

1. INTRODUCTION

   The intervention by the North Atlantic Treaty Organization (NATO) in Kosovo during the spring of 1999 aroused controversy at the time and still provokes questions about the legality of the action, its precedential effect, and procedures for developing new international law. The participants faced a legal and moral dilemma between international law prohibitions on the use of force and the goal of preventing or stopping widespread grave violations of international human rights. This commentary seeks to chart a course for the future in light of the current legal and moral environment.

   Many individuals on all sides of the Kosovo crisis maintained the highest standards of law and morality. Regrettably, others, particularly political leaders, fell short of their moral or legal obligations or both. Of the latter, the leadership of the Federal Republic of Yugoslavia (FRY) headed by Slobodan Milosevic stands out. The FRY committed grave international crimes against the ethnic Albanians in Kosovo. However, both the ethnic Albanians and the Serbs in Kosovo engaged in aggressive and brutal actions against each other and both were at fault, legally and morally.(1) The Kosovo Liberation Army (KLA) has also committed terrorist and other brutal acts against the Yugoslav Serbs and the FRY forces. As for the United Nations, though perhaps not morally at fault, it did not address the Kosovo problem in a timely and effective manner, as is its responsibility.

   Indisputably, the NATO intervention through its bombing campaign violated the U.N. Charter and international law. As a result, the intervention risked destabilizing the international rule of law that prohibits a state or group of states from intervening by the use of force in another state, absent authorization by the U.N. Security Council or a situation of self-defense. The NATO actions, regardless of how well-intentioned, constitute an unfortunate precedent for states to use force to suppress the commission of international crimes in other states--grounds that easily can be and have been abused to justify intervention for less laudable objectives. As now conceived, the so-called doctrine of humanitarian intervention can lead to an escalation of international violence, discord, and disorder and diminish protections of human rights worldwide. If current international law and organizations are inadequate to solve problems like the Kosovo situation, better rules of law and improved organizations might be developed to avoid these terrible risks and properly protect human rights.

2. U.N. CHARTER LAW AND GENERAL INTERNATIONAL LAW

   Contemporary international law prohibits violations of human rights and humanitarian law committed by a state against its own citizens. These duties are owed erga omnes, to all the world. Every state is obliged to respond to those violations, individually and collectively, by the use of nonforcible actions and countermeasures. A variety of intergovernmental and nongovernmental organizations may also take part in combating such violations. The NATO actions in Kosovo, however, raise the question whether international law permits the use of force by foreign states, individually or collectively, to stop violations of international human rights and humanitarian law committed within a single state. The answer turns on U.N. Charter law and contemporary international law derived from it.

   The Security Council was involved in the Kosovo matter for some time. It adopted three resolutions under Chapter VII of the Charter prior to the NATO bombing campaign.(2) These resolutions laid out a plan of action that authorized the Organization for Security and Co-operation in Europe (OSCE) to place an observer force, the Kosovo Verification Mission (KVM), in Kosovo to monitor the situation.(3) The resolutions also called upon the FRY, the KLA, and all other states and organizations to stop using force and called for a halt to violations of human rights.(4) The resolutions did not authorize the use of force by any outside entity.(5) Rather, they reaffirmed the sovereignty and territorial integrity of the FRY.(6) In this situation, outside entities had no authority to take forcible actions. To avoid a veto, the Council resolution adopted subsequent to the bombing did not retroactively legalize NATO's actions but only prospectively authorized foreign states to intervene in the FRY to maintain the peace.(7)

   Neither of the permissible uses of force in international relations under the U.N. Charter--enforcement actions by the Security Council under Chapter VII and self-defense--provides a legal justification for the NATO action.(8) The International Court of Justice (ICJ) acknowledged this problem (without purporting to decide the merits) in its decision refusing to grant the FRY's request for interim measures of protection.(9)

   Various scholars and diplomats have searched for exceptions to the U.N. Charter prohibition on the use of force, principally through liberal interpretations of the phrases "territorial integrity" and "inconsistent with the purposes of the Charter" contained in Article 2(4).(10) Those arguments are unfounded. The use of force by bombing the territory of another state violates its territorial integrity regardless of the motivation.(11) Furthermore, the first purpose of the Charter is "to save succeeding generations from the scourge of war"(12) by "maintain[ing] international peace and security."(13) The protection of human rights is also among the primary purposes of the Charter, although subsidiary to the objective of limiting war and the use of force in international relations, as found in the express Charter prohibitions on the use of force.(14) This interpretation is supported by the travaux preparatoires of the Charter. They establish that the phrases "territorial integrity" and "inconsistent with the purposes of the Charter" were added to Article 2(4) to close all potential loopholes in its prohibition on the use of force, rather than to open new ones.(15) Neither the use of force by regional organizations against nonconsenting states nor intervention to support domestic insurrections is permitted absent authorization by the Security Council or resort to self-defense.(16) Any other uses of force that may have been legal under pre-Charter law ended when the Charter entered into force.

3. HUMANITARIAN INTERVENTION

   Despite the limitations in the text of the U.N. Charter, humanitarian intervention arguably provides a lawful foundation for the NATO actions. Unfortunately, humanitarian intervention is not an exception to the Charter prohibitions on the use of force.(17) No reference to such a right is found in the Charter. The doctrine of "humanitarian intervention" is not well defined, and the evidence does not establish a rule of law permitting the use of force against a state in situations like that of Kosovo.

   Most situations in which this theory is arguably applied actually involve actions by states to protect their citizens abroad from alleged mortal danger. Such intervention probably falls under the doctrine of self-defense.(18) Examples include actions in the Congo, the Dominican Republic, Entebbe, Grenada, and Panama.(19) With the apparent sole exception of the Entebbe raid, however, many consider that the justifications given for those interventions were actually ruses to conceal that they were conducted for other political objectives.(20) This risk of abuse points to the need to adhere closely to the core Charter prohibitions on the use of force, even though it may be lawful to intervene to protect a state's own nationals. Other situations invoked as solidly supporting the theory of humanitarian intervention also fall short.(21) For example, India intervened in East Pakistan allegedly to protect the ethnic Bengalis during the 1971 civil war in Pakistan. A large majority in the U.N. General Assembly condemned this action, and India clearly had objectives other than merely humanitarian ones.(22) The resolution adopted by the General Assembly in response to this incident makes clear that the international community opposed the doctrine. Intervention executed apparently for humanitarian reasons has often been justified as a matter of law on the basis of an alleged request to intervene by the government of the state concerned, for example, in Czechoslovakia, the Dominican Republic, Grenada, and Hungary.(23) Not only were the requests of dubious legitimacy, but the humanitarian grounds put forward were designed to mask other political objectives. Some situations have involved the collapse of a state's effective government, and intervention was allegedly undertaken to restore order, as in Cambodia, the Congo, Liberia, and Uganda. Again, other political interests have often animated the intervening states.(24)

   Finally, few, if any, interventions can be found in which the intervening states have expressly based their actions on the right of humanitarian intervention. In the absence of such a linkage by the intervening states, the actions can hardly serve as opinio juris in support of such a right.

4. NEW LAW

   Perhaps the Kosovo intervention sets a precedent for the development of new international law to protect human rights. After all, general international law may change through breach of the current law and the development of new state practice and opinio juris supporting the change. The Kosovo intervention, however, presents problems in this regard. In the Nicaragua case, the International Court of Justice found that, to challenge a rule of international law, the state practice relied upon must be clearly predicated on that different rule of law;(25) however, NATO has not justified its actions on the basis of a specific rule of law--even humanitarian intervention--new or old. Throughout the campaign, NATO offered no legal justification for its action.(26) Only in the recent suits against the intervening NATO states before the...