The Problem
Kosovo was an autonomous province within the
Federal People’s Republic of Yugoslavia but in 1989 the President of Serbia
retracted the autonomous status.[115 Ninety percent of the Kosovar
population was Albanian.[116] Kosovo was run as a police state by the
Serbian authorities and in response to discrimination and abuse the Albanian
community created their ‘own parallel political structure’ and in 1997 the
Kosovo Liberation Army (KLA) began ambushing the police and demanding
independence.[117] The State police responded in a brutal manner resulting
in internal fighting.[118] Under the Holbrooke Agreement the Government
agreed to withdraw troops and the KLA declared ceasefire.[119] In January
1999 forty-five unarmed Albanians were killed,[120] prompting further
political negotiations-the Rambouillet conference. The Albanian delegation
signed the agreement but the Serbian Government refused.[121] During the
negotiations Government forces positioned themselves around Kosovo’s
borders.[122] The Austrian Government warned of a large scale offense and
the German Government revealed the Serbian Authorities plans for ‘Operation
Horseshoe’- a plan to expel all Albanians from Kosovo.[123] In March
Government forces launched their ‘methodically planned and well implemented
campaign,’[124] to ethnically cleanse Kosovar Albanians by forcing them
out of the country and preventing their return.[125] Rape was used as a
weapon, HRW documented 96 rapes but predict the actual number to be much
higher.[126] The death toll is disputed; NATO estimated 100,000, HRW
documented 3,453 (although they predict the number to be much
higher[127] and the Independent International Commission of Kosovo
estimated 10,000, the majority being Albanian.[128] Forty percent of
residential homes were damaged or destroyed.[129] By the start of April
634,000 people had been displaced, and at the end of April UNHRC reported
of 367,000 refugees in Albania, 142,650 in the Former Yugoslav Republic of
Macedonia, 15,000 in Bosnia, 63,000 in Montenegro and 650,000 internally
displaced in Kosovo.[130] In total the Government forces expelled
ninety percent of the Kosovo Albanian population. [131]
Legal Option
Intervention with SC Authorisation
The UN had been recommended to intervene to prevent
genocide and gross human right violations therefore the SC should have
determined a threat under Article 39. The strength and violent nature of the
campaign made it unlikely that Article 41 measure would to succeed, creating the
legal basis for the use of force under Article 42. The SC could have
authorised the use of force under Chapter VII and requested state troop
contribution. The crisis was evolving rapidly and it would have taken prolonged
period of time for the SG to coordinate fully equipped troops under UN command,
therefore authorising a regional organisation Chapter VII would have been more
efficient. This was a viable option. The North Atlantic Council
authorised activation orders for North Atlantic Treaty Organisation (NATO)
airstrikes on the 13th of October 1998, which were suspended following the
Holbrooke agreement.[132] NATO and the Government agreed on veritification
flights.[133] NATO had the resources and plans in place for air strikes
before the large scale ethnic cleansing started therefore the SC could have
immediately authorised force under Chapter VIII. SC authorisation was not a
realistic prospect; China and Russia were likely to veto. The Russian Prime
Minister stated they were ‘categorically against the use of force in
Yugoslavia,’ and claimed not all political means had been
exhausted.[134] The Chinese Foreign Minister claimed military action in
Yugoslavia would ‘violate the UN Charter and other universally acknowledged
norms of international law.’[135]
Other possible legal arguments
Genocide Convention
The scale and systematic nature of the operation
shows a well planned and coordination campaign with the intention to destroy
the group within the meaning of Article 2. During the 1998 the main target was
KLA members and supporters- a political group,[136] however the campaign
launched in March extended to targeting civilians for the sole reason they were
Albanian- an ethnical group under Article 2. The widespread killings and
summary executions violated Article 2(a), however the scale of these killings
is contested. Rape violated Article 2(b)[137], however the number of reported
incidents are low. The forced expulsions violated Article 2(c). During a
conflict it is difficult to ascertain the number of deaths or rapes committed
but the sharp rise in refugees indicated mass expulsion. Military action was
the only realistic prospect of halting the acts, placing a moral obligation on
the SC to authorise force. It is unclear whether the scale of the killings and
rapes were widespread enough to constitute genocide. However the IC and the SC
also have a moral obligation to act during gross violations of human rights.
Unauthorised Humanitarian Intervention
A state, a coalition or regional organisation could
have intervened justifying it on a right of humanitarian intervention in
customary law. However the lack of state practice and opinion juris makes this
argument controversial and vulnerable to being considered illegal. Claiming a
customary right would have contributed to its development and crystallisation.
Perhaps a more legitimate and possible legal argument was implied SC
authorisation from a SC Article 39 determination and inadequacies of Article 41
measures.
Response
The SC condemned the attacks on civilians and
acting under Chapter VII created an arms embargo,[138] latterly the
situation was determined to constitute a threat under Article
39.[139] Resolutions 1160 and 1199 threatened the consideration of
additional measures in the event of non-compliance.[140] The SC endorsed
the Holbrooke agreement and the OSCE and NATO veritification missions under
Chapter VII.[141] The SG reported of no improvement to the situation,
warning that if the situation was to escalate humanitarian action would not be
able to meet the resulting need.[142]
NATO launched ‘Operation Allied Forces’ (OAF), a 78
day air strike campaign, with the objective of, inter alia, stopping ‘all
military action, violence and repression.’[143] NATO used the ‘most
advanced precision guidance systems,’[144] to target the infrastructure
and equipment used to coordinate and conduct the campaign.[145] Ground
forces were not considered because of the likely opposition from Russian and
the Yugoslav forces,[146] likely loss of US congressional support and FRY
Macedonia refused the use of its’ territory for the mounting of an
operation.[147] NATO did not seek SC authorisation, the Secretary General
claimed NATO had ‘an obligation to act’[148] to protect ‘ethnic Albanians
from ethnic cleansing.’[149] NATO claimed the action was in support of the
IC’s political aims, namely SG statements.[150] The UK Prime Minister
proclaimed three reasons for the use of force; to avert a humanitarian
disaster, to prevent spill over effects in the Balkans and the whole or Europe
and because the UK was committed to a ‘promise’ that it would ‘not tolerate the
brutal suppression of the civil population.’[151] The first was a legal
justification, the second political and third moral.[152] The UN Permanent
Representative of Slovenia accused Russia and China of abusing their veto power
and failing their special responsibilities as members of the
SC.[153] Russia submitted a draft resolution calling for an immediate halt
to the air strikes; it failed 3-12.[154] The SG stated ‘there are times
when the use of force may be legitimate’ however the SC ‘should be involved’ in
decisions.[155] Yugoslavia invoked proceedings against some NATO
countries.[156] Belgium invoked the use of the language ‘impending
humanitarian catastrophe’ in Resolutions 1199 and 1203 as supporting the
existence of a ‘state of necessity,’ which justified the use of force[157]-
thus invoked implied SC authorisation as a legal justification.[158] Other
states failed to invoke legal justifications and the ICJ did not declare the
intervention as illegal.[159]
The air campaign was suspended in June and Serbian
forces withdrew.[160] The SC welcomed the NATO and Government agreement
and under Chapter VII authorised the establishment of security presence.[161]
China abstained NATO created a security
presence ‘Kosovo Force’ (KFOR),[162] this was separate to but in support
of, the UN Mission in Kosovo (UNMIK).[163] On the 17th of February 2008
the Kosovo declared itself an independent and sovereign
state.[164] Kosovo’s independence has been recognised by 75/192 UN
members.[165]
Outcome
The International Committee of the Red Cross (ICRC)
said justifications based on ‘humanitarian catastrophes’ have ‘no legal
significance’ and the human rights abuses were not on a scale that justified
any military action- even with SC authorisation.[166] The International
Independent Commission on Kosovo (Commission) concluded OAF created an
‘internal environment’ that made the ethnic cleansing campaign ‘feasible.’[167]
ICRC claimed NATO violated international humanitarian law namely of
Articles 51, 52 55 and 56 of Additional Protocol 1 (1997) of the Geneva
Conventions (1945). [168] The Commission criticised the ‘exclusive reliance of
air power’ because it ‘proved incapable’ of stopping the expulsions and ethnic
cleansing. [169]
The Commission considered legality as ‘matter of
degree’- noting the way international law is formed. [170]
Following the intervention the law was in a ‘gray
zone of ambiguity,’ where strict ideas of legality have been extended ‘to
incorporate more flexible views of legitimacy.’[171] Contributing factors
were Chapter VII resolutions, the rejection of the Russian draft resolution,
and Resolution 1244.[172] The degree of legality had not extended to
custom because non-Western countries did not support the doctrine[173], mostly
because of a stronger commitment to sovereignty.[174] The Commission
recognised the only way to enhance the legitimacy of HI was to equalise global
military capabilities, suggesting the creation of a ‘UN standing
army.’[175] Roberts warned that shifting focus away from legality to
legitimacy creates legitimacy ‘as an independent source of authority in
international law.’ [176]
The ‘most convincing’ legal justification was the
SC Article 39 determination of a threat, which created the opportunity for the
legal use of force, thus it was ‘legally relevant’ that the SC were treating
Kosovo under Chapter VII.[177] The Commission rejected the notion of
implied SC authorisation, warning it would increase the use of P5
veto.[178] NATO wanted the intervention to be treated as an
exception,[179] (the German Foreign Minister explicitly stated NATO’s
intervention ‘must not become a precedent’[180]), however it is impossible to
prevent states invoking the intervention as a state practice;[181] this
view is also supported by Roberts.[182] Bilder warned that unauthorised
interventions undercut the UNs authority,[183]
however Wheeler stressed inaction by the SC also
undermines the UN’s authority. [184]
The Commission suggested for an intervention to be
legitimate ‘threshold principles’ should be satisfied; protection of the
population is the overriding aim, violations of human rights and humanitarian
law are ‘substantial’ and the catastrophe must be ended as quickly as
possible.[185] ‘Contextual principles’ ‘enhance or diminish the degree of
legitimacy,’[186] inter alia; failure of peaceful solutions and
inconclusive recourse to the UN (SC failure to authorise because of or in
anticipations of, a P5 veto or when subsequent appeal to the GA would not be
practical).[187]
The Commission suggested the UN Charter should be
reformed to ‘enhance the role of human rights in their own right within the
collective security system.’[188] The amendments would ‘put pressure on
and make it possible’ for the SC to invoke human rights and humanitarian law
violations as direct reasons for taking action.[189] Article 24(1) could
be extended to include ‘respect for fundamental human rights’ within the SCs
primary responsibility and Article 39 could permit the SC to determine the
existence of any ‘serious violation of human rights.’ [190] The
Commission urged the IC to clarify the law.
Conclusion
The UN failed to intervene to protect civilians.
NATO claimed they had an obligation to intervene to protect, and the
intervention put the law into a gray zone with tensions between legality and
legitimacy. To ensure interventions are legitimate threshold and contextual
principles should be satisfied and to equalise global capacity a UN standby
force should be created. The law needed urgent clarification.
[115] European Navigator, Yugoslav
Conflict <http://www.ena.lu/
(last accessed 16/4/11)
[116] Dr.Smith ‘Kosovo Renewed Conflict’
Conflict Studies Research Centre, Occasional Brief 58 (May 1998) p.1
[117] HRW ‘Kosovo: Rape as a weapon of ethnic
cleansing’ (1 March 2000) <http://www.hrw.org/legacy/reports/2000/fry/ p.1>
(last accessed 26/2/11)
[118] Ibid
[119] House of Commons (HC) ‘Kosovo; NATO and
Military Action’ Research Paper 99/34 (24 March 1999)
p.8
[120] Ibid p.11
[121] Ibid p.12-17
[122] HRW ‘Under Orders: War Crimes in
Kosovo’ (1 October 2001) <http://www.hrw.org/legacy/reports/2001/kosovo/>
(last accessed 3/2/11) see Background
[123] Ibid
[124] HRW n.121 see executive summary
[125] Independent International Commission on
Kosovo ‘The Kosovo Report: conflict, international response and lessons learned’
OUP (2000) p.88
[126] HRW n.116 p.3
[127] HRW n.121 see executive
summary
[128] Commission n.124 p.91
[129] Ibid
[130] House of Commons ‘Kosovo:
Operation “Allied Force”’ Research Paper 99/48 (29 April 1999) p.13,31
[131] HRW n.121 executive summary
[132] NATO ‘The Kosovo Air Campaign’
<http://www.nato.int/cps/en/natolive/topics_49602.htm#objectives>
(last accessed 26/2/11)
[133] ‘Operation Eye Eagle-The NATO
Veritification Mission’ <www.afsouth.nato.operations/deleagle/nato.int/archives/Eagle.htm>
(last accessed 14/3/11)
[134] Russian Public TV, BBC World Summary of
World Broadcasts, 22 March 1999
[135] BBC World Summary of World Broadcasts 12
October 1998
[136] Political groups are not included in
Convention
[137] Akayesu Judgement Case
No.ICTR-96-4-T
[138] S/RES/1160 31 March 1998
para.8
[139] S/RES/1199 23 September
1998
[140] 1160 para.19 and 1199 para.16
[141] S/RES/1203 24 October
1998
[142] S/1998/1221 24 December 1998
para.34
[143] NATO n.131
[144] Ibid
[145]NATO Secretary-General ‘Humanitarian
Situation’ (Published in the
International Press 12 May 1999) <http://www.nato.int/kosovo/articles/a990521a.htm>
(last accessed 28/2/11)
[146] HC
n.118 p.25
[147] HC n.129
p.58,66
[148] NATO n.144
[149] NATO n.131
[150] NATO ‘The situation in and
around Kosovo’ Press Release M-NAC-1(99)51 17 April 1999 <http://www.nato.int/docu/pr/1999/p99-051e.htm>(last
accessed 14/4/11)
[151] HC Debate 19 Oct 1998 c.953
[152] HC n.118 p.27
[153] S/PV.3988 24 March
p.6-7
[154] HC n.129 p.11
[155] Reported by the Guardian 25th March
1999
[156] Legality of the Use of Force
(Yugoslavia v Belgium, Canada, France, Germany, Italy, Netherlands, Spain,
United Kingdom, Unites States of America) 1999 <http://www.icj-cij.org>
(last accessed 16.4.11)
[157] Legality of the Use of Force
(Yugoslavia v Belgium) Request for the Indication of Provisional
Measures, Oral Proceedings CR 1999/15
[158] A.Roberts ‘Legality vs Legitimacy: Can
use of Force be illegal but justified?’ in Alston n.5 p.202
[159] Ibid p.202,190
[160] NATO ‘NATO’s Role in Kosovo’ <http://www.nato.int/cps/en/natolive/topics_48818.htm> (last
accessed 14/2/11)
[161] S/RES/1244 10 June 1999
para.7.
[162] NATO n.159
[163] UNMIK ‘UNMIK at a glance’ <http://www.unmikonline.org>
(last accessed 18/4/11)
[164]BCC Full Text; Kosovo Declaration 17th Feb
2000 <http://news.bbc.co.uk/1/hi/world/europe/7249677.stm> (last
accessed 14/4/11)
[165] Kosovo Thanks You ‘Who has recognised
Kosovo as an independent State?’ <http://www.kosovothanksyou.com/>(last accessed
5/3/11)
[166] ICRC Public ‘Statement of the ICRC on
the situation in Kosovo’ (31 December 1998) Article, International Review of the
Red Cross No.325
[167] Commission n.124 (initiated by the
Swedish Prime Minister) p.88-89
[168] ICRC n.165
[169] Commission
n.166 p.289
[170] Ibid 172
[171] Ibid 164
[172] Ibid p.171-172
[173] Ibid p.170
[174] Ibid p.296
[175] Ibid p.297
[176] n.157 p.212
[177] Commission n.166 p171,172
[178] Ibid p.173
[179] Ibid p.174
[180] Deutscheur Bundestag, Plenarprotokoll
13/248,16 October 1998, 23129 quoted in Roberts n.157
[181] Commission n.166 p.174
[182] Roberts n.157 p.212
[183] R.Bilder The Implications of
Kosovo for International Human Rights Law in Alston n.5
p.151
[184] N.Wheller ‘Humanitarian
intervention after Kosovo: emergent norm, moral duty of the coming of anarchy?’ International
Affairs pp.113 77(1) 2001 p.199
[185] Commission n.166 p.193-194
[186] Ibid p.193
[187] Ibid p.194-195
[188] Ibid p.196
[190] Ibid
