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Humanitarian Intervention Post-Kosovo
Possibilities of Becoming a New Rule of Customary International Law

Introduction

The war in Kosovo, the 9/11 attacks, the human rights crisis in Darfur, the crises in Somalia and Rwanda, ethnic cleansing in Srebrenica , all of these and other situations of massive human rights catastrophes have continually besieged the international community with long-standing questions. How should the international community respond to a state that commits human rights violations against its citizenry but invokes its right to national sovereignty and the concomitant immunity from external intervention? Would there ever be a right time for other states to take a unified coercive military action to safeguard the rights of the people at risk within it? Is humanitarian intervention outside of the framework of the United Nations legitimate or moral? An analysis of the precedential value of the military intervention in Kosovo would shed some light on these issues.


It is the contention of this paper that after years of heated controversy following the Kosovo crisis and other similar events, the status of humanitarian intervention in international law is still in the limbo of uncertainty. To elaborate on this, the essay will discuss the nature of humanitarian intervention vis-a-vis intervention within the U.N. framework, the legal implications of the Kosovo crisis and the emerging international norm on humanitarian intervention. A large part of the paper is devoted to a description of the arguments for or against the legality of the Kosovo intervention in terms of international law. A brief review of what happened in Kosovo is presented to lay the background for the analysis. The Kosovo crisis stands out as a turning point in international relations. The issues related to this event have caused incisive debate as to the propriety of humanitarian intervention.

The Kosovo Crisis
The Kosovo crisis started in 1999 with the war in Kosovo and concluded in 2008 with the independence of Kosovo. The backdrop of this event was laid out in the late 1990’s in the Serbian province of Kosovo when Albanians started to migrate to the province until 1997 when the province became overwhelmingly Albanian. The Serbians heavily resisted, through military means, what was seen as an intention of the migrants to either unify with Albania or to establish a separate state. The conflicts between the Kosovo Liberation Army and the security forces gradually escalated into a real “small war” (Obradovíc 2000, p. 1).

Invoking reports of genocide and claims of crimes against humanity, the NATO, led by the United States, launched a campaign designed to stop the mass killings. Whether the reports were true or not is outside the scope of this paper. What is relevant though is that the NATO defended the war as a preventive measure and launched a bombing campaign sans the imprimatur of the United Nations, specifically the U.N. Security Council.

Failing to secure the concurrence of the Serbs to the terms dictated by U.S. in what is now known as the Rambouillet Accords, the NATO started the bombing campaign against the Serbs. The NATO did not seek U.N. sanction because they expected a veto from Russia and China, which would have automatically negated a resolution authorising the war. They argued that U.N. sanction was not necessary to launch a war, as in the case of Iraq, and that NATO support was sufficient to legitimise the military intervention claiming that the events in Kosovo necessitated an "international humanitarian emergency". The 78-day-long military intervention by NATO against the Federal Republic of Yugoslavia has catapulted NATO to a quasi-United Nations assuming the role of peacemaker with the power to determine the propriety or necessity of intervention (Kirchner 2004).

Aside from NATO defiance of the U.N. Security Council, several other issues came to the fore. First, it was claimed that the genocide reports lacked evidence. Second, the NATO acted beyond its charter which is to defend its members since it attacked a non-NATO country which was not directly threatening any NATO member. This was justified by the NATO by saying that the volatility of events in the Balkans caused a direct threat to the security interests of NATO members. Third, the campaign was seen not only as irrelevant to national security interests but also showed the aggressive and imperialistic tendencies of the Americans. Nonetheless, what has happened has caused much more ripples in the status of international law focusing on the applicability of humanitarian intervention outside the U.N. framework and the impact of massive human rights violations to international peace and security.

Humanitarian Intervention vis-a-vis United Nations Measures
Humanitarian Intervention could be defined broadly as “a coercive action by states involving the use of armed force in another state without the consent of the latter for the purpose of preventing or putting to a halt gross and systematic violations of human rights and international humanitarian law” (Kirchner 2004, p.1), and for the purposes of this paper, covers those measures outside the framework of the United Nations.

UN measures stem from several provisions. For example, Article 2, paragraph 4 states:
“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, or in any other manner inconsistent with the Purposes of the United Nations.”
Article 51 of the UN Charter reads, in part:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

Not limited by Art. 2 (7) of the UN Charter, the Security Council could invoke massive and systemic human rights violations constitutive of threat to international security, as a ground to take action under Chapter VII. However, this is rendered weak due to the difficulties in arriving at a decision. A decision by the Security Council requires nine votes in favour, including the votes of all permanent members. If one permanent member vetoes, an authorisation to take coercive action could not be affirmed.
The Implications of the Kosovo Intervention to International Law

The legal literature surrounding the discussion of the Kosovo crisis runs on three broad trends. First, one view deems the military intervention launched by the NATO as illegal (Henkin 1999, Obradovíc 2000, Gowland-Debbas 2000, Brownlie & Apperley 2000, Chinkin 2000, O’Connell 2000, Hipold 2001, Joyner 2002). Second, some view it as within legal precepts (Reisman 1999, Brown 2000, Mertus 2000, Pellet 2000, Wedgwood 2000, Sofaer, 2000). Third, although it is viewed as illegal, there is some agreement that it augurs of future legality (Glennon 1999, Cassese 1999, Lowe 1999, Murphy 2000, Zacklin 2000).

From the viewpoint of illegality, NATO’s armed attack against Yugoslavia is a violation of the peremptory norm provided in Article 2, paragraph 4, of the UN Charter which proscribes the threat or use of armed force, and thus can certainly be qualified as aggression ((Henkin 1999, Obradovíc 2000, Gowland-Debbas 2000, Brownlie & Apperley 2000, Chinkin 2000, O’Connell 2000, Hipold 2001, Joyner 2002). This provision does not accommodate a balancing between general purposes of the Charter and the prohibition of the use of force. It rules out any use of force other than that permitted by way of self-defence under Article 51 of the Charter13 or that permitted or required by way of collective action under Chapters VII (enforcement action) and VIII (regional action).

The critics of the NATO intervention rely on the rules governing the interpretation of treaties and customary international law wherein the prohibition on the use of force is one not just of treaty obligation but also of customary or general international law being the position taken by the International Court of Justice in its investigation of U.S. military and paramilitary activities in and against Nicaragua (Henkin 1999, Brownlie & Apperley 2000, O’Connell 2000, Hipold 2001).

One flaw of the illegality argument is that none of the precedents for a customary rule permitting humanitarian intervention can withstand scrutiny (Rodley & Cali 2007, p. 279). Several incidents in the past were deemed legally unjustified aside from the fact that the intervening states were keen on promoting national security interests and not humanitarian need (Rodley & Cali 2007, p. 280). Corollary to the view of the critics of the NATO intervention that a justified humanitarian intervention would have to be “politically neutral or impartial” (Henkin 1999, Chinkin 2000, O’Connell 2000, Joyner 2002), strong states who have the capacity to intervene and protect the weak have not done so in many cases of human rights violations in weak countries while such atrocities are ignored in relatively strong states (Rodley & Cali 2007, p. 280). With regard to the Kosovo case, the critics contend that at the time the NATO campaign set, humanitarian considerations were not present, that NATO’s primary consideration was imposition of its will in securing the agreement of Yugoslavia to the Rambouillet Accords, and that the warfare methods employed by the NATO were not proportional to the standards of legitimate humanitarian intervention (Gowland-Debbas 2000, Brownlie & Apperley 2000, Chinkin 2000). However, some of the critics argue that the adverse implications of the illegality could be mitigated if a certain degree of legitimacy could be attributed to the intervention (Rodley & Cali 2007, p. 281).

For those who advocate the legality of the NATO intervention, they argue that Article 2, paragraph 4 of the UN Charter does not preclude humanitarian intervention because its aim is not to undermine territorial integrity or to infringe on a government but to save and protect a population . As such, they contend that humanitarian intervention supports a primary purpose of the United Nations, that is to foster the observance and achievement of human rights and fundamental freedoms (Reisman 1999, Mertus 2000, Sofaer, 2000). Furthermore, the pro-NATO intervention side argues that although state practice leans on self-defence as the traditional backbone of intervention, the humanitarian argument does not lack legal basis (Reisman 1999, Brown 2000, Wedgwood 2000). Amidst the emerging concurrence of the United Nations that humanitarian emergencies could be considered as threats to international peace and security, pro-legality advocates criticise the procedural flaw of the UN Security Council’s decision-making where the fate of a whole country lies on the hand of even just one permanent member of the Council who may, for unmeritorious reasons, veto a resolution to allow coercive action (Reisman 1999, Wedgwood 2000, Sofaer, 2000). Another reason forwarded by the pro-legality side is that, as regards fairness and impartiality, the benefits of any humanitarian intervention would extend to those who need it and maximise the cases of rescue. Although the moral aspect of the issue is outside the scope of this paper, it would be noteworthy to mention that “it is significantly less morally important that an intervener have UN Security Council authorisation, and therefore be legal, than is commonly assumed” (Pattinson 2007).

For the legality side, the NATO campaign launched during the Kosovo crisis although the internal problem did not involve a NATO member or in any way pose a direct threat to any NATO member was to rescue an endangered population, i.e. a Muslim minority in a
majority-Christian state. To them, humanitarian intervention was justifiable because the Kosovo problem reminded the world of the tragedy in Bosnia. They find support in what was supposed to be trounced a draft resolution condemning the NATO’s campaign (Rodley & Cali 2007, p. 282) and a Security Council retroactive endorsement thereof when it said that large violations of
human rights in Kosovo did constitute a threat to international peace and security (Pellet 2000, Wedgewood 2000, Kirchner 2004). As former Secretary General Kofi Annan (1999) put it, “for the mass murderers, the ‘ethnic cleansers’, those guilty of gross and shocking violations of human rights, impunity is not acceptable. The United Nations will never be their refuge, its Charter never be the source of comfort or justification.”

For those who are suggesting illegality but possible future legality, their arguments are grounded on the precedential value of the Kosovo intervention and its repercussions (Cassese 1999, Lowe 2000, Murphy 2000, Zacklin 2001). They underscore the risks of a paralysed Security Council, the need for strong collective condemnation of human rights violations, the attenuated unilateralism of regional action, the last resort after exhaustion of all peaceful remedies, and the inadequacy of mere “stopping the atrocities and restoring respect for human rights” (Rodley & Cali 2007, pp. 282-283).

The variations in interpretations are generated by various factors, namely, conflict in values (sovereignty versus human rights), and conceptual contradictions on the role and limits of law in general and of international law in particular (Rodley & Cali 2007, pp. 283-286). The legal discursive content is wrought with terminological complexities confusion, traditional conceptual conflicts and ambiguities concerning the nature, quantum and role of state practice in defining the existence and scope of any given norm or rule of international law” (Rodley & Cali 2007, p. 287). However, it is argued that “the traditional balance between sovereignty
and human rights [...] is shifting” (van Artsen 1999a, p. 4) in favour of Human Rights, which has generated a clarion call to reform international law to accommodate effective action against human atrocities masked under the veils of national sovereignty (van Artsen 1999b). It is suggested that the concept of sovereignty should be redefined allowing universal application and consistent application (Kirchner 2004). Rodley and Cali (2007) propose that despite obstacles, it is still theoretically possible for international law to accommodate an interpretation that would make the military intervention in Kosovo, if not legal, then a harbinger of future legality, precisely by virtue of the facts.

Conclusion

The future of humanitarian intervention is as uncertain as its current status in International Law. However, it is apparently gaining a slow momentum as it emerges slowly in the legal realm. As such, it can only have the form of customary international law. The Kosovo intervention, as would other similar crisis situations, keeps tugging at the minds and hearts of legal luminaries that when the United Nations fails to take action, there ought to be a possibility for willing states to come to the rescue of those oppressed by their governments. The extensive legal discourse and intellectual history on the issue could only augur, among others, the advent of that moment in history when the international community would be able to agree on issues related to humanitarian intervention, although in the near future, a realm that embraces the concept of responsibility to protect is most welcome.


 

 
 
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