Reconsidering the legality of humanitarian intervention: lessons from Kosovo.

• Author: Mertus, Julie
• Position: Seeking Reconciliation of Self-Determination, Territorial Integrity, and Humanitarian Intervention

For nearly ten years, human rights advocates tried to focus public attention on Kosovo. They issued report after report of gross and systemic human rights abuses in the troubled region. Nearly all of the reports detailed crimes committed by Serb civilians and Serb police against Albanian civilians.(1) They warned of escalating violence and impending forced deportations, and implored intergovernmental organizations and individual countries to take preventative action.(2) International policymakers had overwhelming evidence that the pressure in Kosovo was mounting and that an even greater human rights disaster loomed near.(3) Yet they treated the warnings as those of the boy who cried "wolf." Without the "wolf" of all-out war, international leaders failed to treat Kosovo seriously. Indeed, international leaders failed to treat the Kosovo situation seriously even after many Albanians grew impatient with their campaign of "passive resistance" to Serb aggression and instead supported a new tactic of armed resistance. This situation became even more drastic at the end of 1997 when the Kosovo Liberation Army (KLA) was at the vanguard of armed resistance.(4) Still, international leaders failed to take preventative action. Even after the hot spring of 1998, when Serb forces killed fifty-one members of an Albanian family in retaliation for KLA provocation,(5) and after the summer of 1998, when Serb forces began a scorched-earth policy of destroying whole villages,(6) international leaders obstinately refused to take effective action. Indeed, even after the Milosevic regime reneged on its October 1998 agreement to decrease its forces in Kosovo(7) and instead continued attacks on civilians,(8) murdering forty-one civilians in the village of Racak in January 1999,(9) the international community still pretended that Kosovo was a small matter that would go away quietly.(10)

In March 1999, the "Contact group"--United States, Britain, France, Germany, Italy, and Russia--brought Kosovar and Serbian negotiators together in Rambouillet, France. The agreement on the table required autonomy to be restored to Kosovo, a NATO peacekeeping force to be installed, the KLA to disarm, and Milosevic to reduce his troops in Kosovo. Neither side liked the arrangement.

The agreement was unacceptable to Kosovars because it failed to require the complete withdrawal of Serbian troops and the guarantee of independence. At the same time, it was unacceptable to Serbs who refused to give up Kosovo and to permit the presence of an armed international military force. NATO threatened both sides: Kosovars would be cut off from any international support if they failed to sign and Serbia would be bombed if they failed to sign. Kosovars eventually signed the agreement, but Serbia refused. Then, on March 23, 1999, NATO war planes commenced military air operations and missile strikes in Yugoslavia. Suddenly, Kosovo was a lead story in every media outlet.(11) Kosovo finally came into focus, but the optic was blurred. In a rush to "do the right thing" or just "do anything" many human rights advocates, like the diplomats and pundits they criticized, started to get sloppy. They accepted a false slate of diametrically opposed choices--intervention or no intervention; protection of Serbian sovereignty or denial of Serbian sovereignty--without questioning what each choice actually meant under international law and without listening to the reasons proffered by the intervenors themselves.

Renowned human rights advocates, such as Czech President Vaclav Havel, offered human rights rationales for NATO's actions. Havel claimed that the alliance "acted out of respect for human rights" and that the war was "probably the first war that has not been waged in the name of `national interests,' but rather the name of principle and values."(12) If only this were true, the legitimacy of actions in Kosovo would be much clearer. The Clinton Administration considered but refused to base its actions in Kosovo solely on humanitarian grounds. Instead, the Clinton Administration, like other international leaders who have intervened in nation-states in the past,(13) offered an array of justifications. Although humanitarian concerns were included "because we care about saving innocent lives,"(14) they were rolled together with other factors, most prominently: (1) the need for regional stabilization, or in Clinton's words, "because our children need and deserve a peaceful, stable, free Europe";(15) (2) national security concerns relating to a long war and a large refugee flow, "because we have an interest in avoiding an even crueler and costlier war";(16) and (3) the need to protect NATO's reputation, because looking the other way "would discredit NATO, the cornerstone on which our security has rested for 50 years."(17) As Clinton explained these factors to the nation in his first public address on NATO intervention in Kosovo, he emphasized America's economic and security concerns, not humanitarianism:

[I]f America is going to be prosperous and secure, we need a Europe that is prosperous, secure undivided and free.... That is why I have supported the political and economic unification of Europe. That is why we brought Poland, Hungary and the Czech Republic into NATO, and redefined its missions ....(18) In the Administration's announcements, White House spokesmen also stressed that "NATO had to address the problem [in Kosovo] now because a failure to act would have destroyed its credibility."(19)

Dr. Javier Solana, Secretary-General of NATO, similarly offered an array of extralegal justifications for NATO intervention in Kosovo. In his first address after the onset of NATO bombing, Solana emphasized more clearly than had President Clinton that NATO's "objective is to prevent more human suffering and more repression and violence against the civilian population of Kosovo.(20) At the same time, Solana stated that the military action was necessary to "prevent instability spreading in the region"(21) and to "support the political aims of the international community."(22) Specifically, he characterized NATO's efforts as "support[ing] international efforts to secure Yugoslav agreement to an interim political settlement."(23) This latter justification--the use of force to coerce a political leader to sign an agreement--clearly was extralegal. Indeed, under the 1969 Vienna Convention on the Law of Treaties, "[al treaty is void if its conclusion has been procured by the threat or use of force...."(24) Thus, under the 1969 Vienna Convention, legal justifications for the use of force in Kosovo should have been offered apart from the mere desire to force a political leader to sign a "take it or leave it" agreement.(25)

By failing to specify clearly the legal parameters of their actions, the NATO allies exposed themselves to criticism suggesting that NATO was not operating under any legal grounds at all.(26) Critics who argue that a humanitarian and human rights disaster did not exist in Kosovo before NATO attacks are wrong on the facts, however.(27) By the time NATO began bombing, Kosovo Albanians had faced more than ten years of intense human rights violations under the boot of Serb forces.(28) In the summer of 1998 alone, attacking Yugoslav and Serb paramilitary forces shelled an estimated three hundred thousand Kosovo Albanians out of their homes.(29) Thus, contrary to the critics' factual contentions, the wealth of information on gross and systemic human rights abuses in Kosovo prior to the NATO bombing provided sufficient evidence of a human rights basis for intervention. Nonetheless, many of the same critics point to valid legal concerns about the extensive list of various justifications for intervention that contained many questionable items, most notably, the desire to use force to coerce the signing of an agreement or the use of force, to protect one's own reputation or the reputation of friends.(30)

Some champions of intervention openly acknowledged the illegality of the air strikes, but claimed moral legitimacy for such actions.(31) Straying from legal justifications, however, the risks delegitimized international law and dismantled the gains of human rights advocates over the past decade. International law generally, and human rights law specifically, are most influential when communities perceive their terms as legitimate and fair.(32) Legitimacy is central to the enforcement of human rights.(33) Accordingly, only human rights processes and bodies perceived as legitimate will be taken seriously, and only states perceived as legitimate can enforce human rights norms successfully.(34) As Thomas Franck explains:

In a community organized around rules, compliance is secured--to whatever degree it is--at least in part by perception of a rule as legitimate by those to whom it is addressed.... [P]erception of legitimacy ... becomes a crucial factor.., in the capacity of any rule to secure compliance when, as in the international system, there are no other compliance-inducing mechanisms.(35) Ad hoc justifications for the use of force, or the failure to use force, render the resulting actions and inactions indeterminate, and thus open to criticism as illegitimate,(36) Whenever a political leader announces numerous and conflicting justifications for intervention, the determinacy of rules on the use of force are undermined and the status of the entire field of international law suffers.

At the same time, determinacy of rules alone does not necessarily comport with justice. Franck terms blind compliance with simple rules, "idiot rules," when the very simplicity of the rules leads to injustice, incoherence, and absurdity upon consistent application.(37) To be perceived as legitimate and fair, the rules and their application must comport with notions of justice. In other words, a rule must be deemed just at both a substantive and a procedural level. If the principle of nonintervention...