NATO's Role in Peace Operations: Reexamining the Treaty after Bosnia and Kosovo

• Author: Major J.D. Godwin
• Pages: 01

MILITARY LAW REVIEW

Volume 160 June 1999

NATO'S ROLE IN PEACE OPERATIONS: REEXAMINING THE TREATY AFTER BOSNIA AND KOSOVO

MAJOR J.D. GODWIN1

1. Introduction

   The North Atlantic Treaty2 contains no provisions that allow its members to participate in peace operations3 under Chapter VIII of the United Nations (UN) Charter.4 Nevertheless, in 1993, the North Atlantic Treaty Organization (NATO) began flying missions over Bosnia5 to protect UN

   peacekeeping forces and to monitor the so-called safe havens declared by

   the Security Council.6 At the same time, NATO naval forces were the primary component enforcing the UN arms embargo imposed on the warring factions within the Federal Republic of Yugoslavia.7 By December 1995, mediators negotiated an unlikely cease-fire and an unprecedented agreement to hand off UN peacekeeping duties to a multinational force under NATO's command and control.8

   The Bosnia mission was the first of its kind by NATO. As events in Kosovo have demonstrated, however, it is not its last.9 The end of the Cold War significantly reduced the chances of super-power confrontation; however, lower nuclear tension frequently masks increased regional violence grounded in historical ethnic, cultural, and religious differences.10 The

   conflicts in Bosnia and Kosovo are prime examples, but there are many others simmering within Europe and on its periphery. An incomplete list of recent examples includes near civil war in Albania,11 continuing friction between Greece and Turkey,12 and religious and political violence in Algeria.13 Meanwhile, the UN is spread thin attending to disturbances around the globe.14

   For a variety of reasons, the UN will not be able to keep pace with the growing cycle of violence. Political disagreements have disrupted the

   Security Council almost from the beginning.15 "Peacekeeping was discovered like penicillin . . . [by accident],"16 because super-power competition during the Cold War blocked the Security Council from effectively performing its intended peace-enforcement role.17 Many heralded the end of the Cold War as the renaissance of collective security.18 Conflicts such as those in Rwanda, Somalia, Bosnia, and Kosovo seem to demonstrate that these predictions were unfounded. For example, off and on since the Gulf War, Security Council members have been at loggerheads over measures against Iraq. Their political differences often encourage Saddam Hussein to defy the UN.19

   Financial and technical shortcomings also limit the UN's ability to respond effectively. As its peacekeeping activities expanded, the UN's peacekeeping budget increased almost fifteen times.20 The Secretary General sharply criticized the member states in his Supplement to An Agenda for Peace, released in early 1995, for their failure to provide funding for UN peace operations.21 He warned that many operations could not be pur-

   sued or, if pursued, could not be performed "to the standard expected."22

   Nevertheless, some major contributors, including the United States, continually refuse to pay their assessments.23

   Command and control of forces engaged in UN peace operations are a continual source of friction between the Security Council and the troop-contributing nations. The Secretary General contends operational and strategic control of the forces belongs to the UN alone.24 This position is unacceptable to many nations, especially the United States.25

   To survive the systemic problems, the UN has increasingly turned to regional organizations for help. This is a marked evolution for the UN. The drafters of the UN Charter very nearly did not recognize the rights of regional organizations. Chapter VIII and the self-defense measures of Article 51 were included only after the Latin American states insisted.26

   European members who feared a re-emergent Germany joined them.27

   After the Charter's ratification, the role of regional organizations was ill defined and often distrusted, as in the intervention of the Organization of American States in the Dominican Republic.28 Recent developments in Liberia, Bosnia, and Haiti, however, reflect the trend toward cooperation between the UN and regional organizations.29

   The political and military importance of NATO makes it an attractive partner to the UN. The UN's move toward regional cooperation has met

   NATO's willingness to take on a role in peace operations.30 This is a development for NATO as well.

   For almost five decades, NATO members insisted that the Alliance was not a Chapter VIII regional organization.31 Instead, the members carefully tied NATO's mission to collective self-defense.32 The North Atlantic Council's motive for limiting its agreement was partially driven by the fear that operating under Chapter VIII would give the UN Security Council an opportunity to meddle in the alliance's affairs.33 The North Atlantic Coun-

   cil particularly wanted to avoid the possibility of a Soviet veto over NATO initiatives.

   Ironically, the abrupt collapse of the Soviet Union left NATO without a focus for its overarching mission. North Atlantic Treaty Organization tried to justify its continued viability in the face of arguments that other European mechanisms were more appropriate.34 Rather than agreeing to disband, NATO took the initiative and declared in 1992 that it was willing to support peace operations conceived by the Conference on Security and Cooperation in Europe35 on a case-by-case basis.36 The following year, NATO extended the same pledge to the UN.37 The Partnership for Peace initiative and the concept of NATO expansion occurred at substantially the same time.38

   These ambitions could be aptly characterized as a full employment guarantee for NATO. The events in Bosnia quickly demonstrated that the existing European security structure was incapable of handling the crisis without the presence of United States armed forces.39 NATO moved to fill the gap. The recent addition of Hungary, the Czech Republic, and Poland to the alliance, perhaps with others to follow, will risk NATO involvement in the traditional ethnic or religious conflicts and border disputes, which have characterized the region. The same is true concerning the Partnership

   for Peace initiative.40 Events such as in Iraq and the continuing strife within the countries of the former Soviet Union may warrant NATO attention as well.41 Competition for Caspian Sea oil may well add fuel to the flames of war.42

   To meet these challenges, the alliance's vision must be as clear today as it was when the partnership was formed. The North Atlantic Treaty is fifty years old. It was designed to enable Western Europe to withstand the onslaught of the Soviet Union. That threat is gone, at least for the imm

   diate future. Meanwhile, threats along NATO's expanding periphery indicate that the alliance must prepare to perform humanitarian missions and to support fledgling democracies in a broader area to thwart the spillover of violence into its own region.

   This article argues that NATO does not need express UN Security Council approval before it can legally perform peace operations under Chapter VIII of the UN Charter, particularly when NATO performs humanitarian interventions and interventions on behalf of democratic governments. Many critics argue that these are not internationally accepted authorities for use of force.43 Just as peacekeeping evolved from Chapter VI without a textual basis,44 as Chapter VIII becomes energized, regional organizations will undertake peace operations in which the parameters are not discernible from the dry words of the UN Charter.

   The proposals that NATO should conduct peace operations within or adjacent to the North Atlantic region when prompted by humanitarian or democratic concerns, are in accord with the current practice of nations.45

   NATO should recognize them as legitimate aims. The treaty should reflect the Alliance's right to intervene when a regional government's action or inaction leads to an imminent humanitarian disaster. Likewise, the organization should have the ability to intervene on behalf of democratic governments that are overthrown by unconstitutional means. New members joining NATO understand that they are bound to maintain a democratic

   form of government, that their militaries submit to civilian control, and that they will settle long-standing ethnic and border disputes.46

   Reaffirming these basic values in the North Atlantic Treaty would emphasize the goals and aspirations of the present members. Endorsing these principles should be the price of admission for those nations seeking to join the alliance. Therefore, this article argues that the members of the North Atlantic Treaty should consider amending the treaty to clarify NATO's authority as a Chapter VIII regional association to perform peace operations beyond collective self-defense in the North Atlantic area.

   As noted above, NATO is already performing peace operations. The utility of changing the treaty to reflect what is already a fait accompli is questionable. The suggested changes, however, define the legal basis for future alliance action. The treaty defines both the rights and obligations of its members. Without a textual basis, NATO does not have a clearly defined legal right to conduct peace operations in its own charter. Conversely, NATO members have no affirmative obligation to participate in operations beyond the clear text of the treaty. Updating the treaty will clarify the legal foundation for NATO peace operations, which is currently based on strained re-interpretation of the treaty.47

   The amendments should also clarify the position of NATO members concerning out-of-area conflicts. The present treaty permits military action only within the North Atlantic region and only for collective self-defense.48 In all other instances, members are bound only to "consult" when an individual member's interests are threatened.49 Most of the conflicts that NATO will be called upon to help resolve originate in areas...