Nato Kosovo

Electronic copy available at: http://ssrn.com/abstract=2434753

Le Conseil Atlantique du Canada

The Atlantic Council of Canada

Abstract

NATO's recent 79-day campaignof airstrikes against the Federal Re-public of Yugoslavia has sparked awide-ranging debate as to the legalityof such military action. NATO hasconsistently justified its interventionon humanitarian grounds, thus clearlyresorting to the controversial doctrineof "humanitarian intervention".

The author argues that whilea conventional analysis of the pur-ported right of unilateral humanitarianintervention under international lawand of NATO's acts on the Kosovoissue might lead some to the conclu-sion that such acts were illegal (or atbest, of dubious legality), this fails totake into account the fact that stateactors, particularly when acting in con-cert, tend to influence the content ofinternational law itself. The authorsuggests that the true significance ofNATO's forcible intervention in theKosovo crisis is that it sets a clearprecedent which may well crystallizean emergent norm of customary inter-national law permitting forcible inter-vention by one or more states againstanother on humanitarian grounds,even without prior UN Security Councilauthorization. While such a norm mayacquire universal status, it is also pos-sible, in light of the regional concen-tration of the primary actors involvedas well as important objections fromsome quarters as to its legality, that it

6 Hoskin Avenue (Trinity College) Toronto, Ont. M5S 1H8Phone: 416-979-1875 Fax: 416-979-0825

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NATO's Humanitarian Intervention in Kosovo:Making or Breaking International Law?

byJohn H. Currie

Atlantic Council Paper 2 / 99

Atlantic Council Papers are speciallyselected from those presented at confer-ences of the Atlantic Council of Canada, orof the international Atlantic Treaty Associa-tion, of which the Atlantic Council of Canadais a constituent member, on the basis oftheir particular merit in helping either to clar-ify international security issues impactingupon Canada and the Atlantic Alliance, or toadvance the basis of international securitytheory.

This paper contains the speakingnotes for Professor John H. Currie’s addressto the Annual Conference of the AtlanticCouncil of Canada, "NATO and the KosovoCrisis: Coping with the Aftermath", Thurs-day, November 18, 1999, Ottawa, Canada.

These speaking notes are a con-densed and edited version of an article pre-viously published by the author in [1998] 36Canadian Yearbook of International Law.

John H.Currie is Assistant Professor,Faculty of Law, Common Law Section, Univer-sity of Ottawa.

The author wishes to acknowledgewith thanks the research assistance of Mr.Cezary Fudali, LL.D. candidate, University ofOttawa, and Mr. Vincent DeRose, LL.B.(1999), University of Ottawa.

The author is also grateful to the At-lantic Council of Canada for sponsoring theauthor's attendance on a briefing tour ofNATO headquarters and installations in Oc-tober, 1998.

Electronic copy available at: http://ssrn.com/abstract=2434753





will acquire(at least in the first in-stance) a local or regional character,perhaps confined to the Euro-Atlanticarea.

La récente campagned'opérations aériennes par l'OTANcontre la République fédérale deYougoslavie ("RFY"), qui a duré 79jours, a suscité un débat vif quant à lalégalité d'une telle action militaire.L'OTAN a systématiquement fondéson intervention sur des considéra-tions humanitaires, ayant donc claire-ment recours à la doctrine controver-sée "d'intervention humanitaire".

L'auteur soutient que, tandisqu'une analyse classique d'un pré-tendu droit unilatéral d'interventionhumanitaire en droit internationalmènerait certains à conclure que lesactes de l'OTAN sur la question duKosovo furent illégaux, une telle anal-yse ne tient pas compte de l'influencequ'ont les actes d'états sur le contenumême du droit international, surtoutlorsque plusieurs états agissent deconcert. L'auteur prétend d'ailleursque l'intervention armée de l'OTAN enRFY pose un précédent clair qui pour-rait cristalliser une norme émergentedu droit international coutumier,norme qui permettrait l'interventionmilitaire par un ou plusieurs étatspour des raisons humanitaires, mêmeen l'absence d'autorisation préalabledu Conseil de sécurité de l'ONU. Bienqu'une telle norme pourrait atteindreun caractère universel, il est égale-ment possible, à la lumière de la con-centration régionale des acteurs pri-maires impliqués ainsi que des objec-tions importantes de la part de cer-tains états-tiers, qu'elle demeurera dumoins en premier lieu) de caractèrelocal ou régional, peut-être limitéedans sa portée à la région euro-atlantique.

Introduction

On March 24, 1999, members of theNorth Atlantic Treaty Organization ("NATO")engaged in military action against asovereign state for the first time in the fifty-year history of the Alliance.1 Seventy-ninedays of sustained and widespread airstrikesagainst mainly military targets in the FederalRepublic of Yugoslavia ("FRY") ensued, even-tually culminating in a cease-fire and theinsertion into the Yugoslav province ofKosovo of a UN-sanctioned, but NATO-led,peacekeeping force.

Predictably, these events havesparked a wide-ranging debate as to thelegality of NATO's actions. Particular(although far from exclusive) attention hasbeen focused on the legality of the use offorce by the Alliance under the rubric ofso-called "humanitarian intervention".2 Itwould be fair to say, moreover, that themajority of at least scholarly opinion con-demns NATO's actions as inconsistent withinternational law.

What I want to do today is suggestthat those who too readily dismiss this dra-matic military intervention as a plain violationof the UN Charter's general prohibition onthe unilateral use of force fail to bear in minda peculiar but crucial aspect of the interna-tional legal system. In particular, they fail togive due weight to the fact that internationallaw, which draws on customary practice formuch of its content, is generally impacted bythe consistent acts of an important cross-section of its subjects.3 In other words,states acting as they have done in the case ofthe NATO allies in the Balkans likely influencethe content of international law itself.

While a conventional analysis ofNATO's acts on the Kosovo issue might leadsome to conclude that such acts were illegal(or at best, of dubious legality), I want tosuggest that this would be to miss the moreinteresting point entirely.4 In other words,rather than examining the impact of the lawon NATO's actions, I think the more interest-



ing question is: What is the impact of NATO'sactions on the law? In my view, the truesignificance of NATO's forcible intervention inthe Kosovo crisis is that it may set a clearprecedent which may well crystallize an emer-gent norm of customary international lawpermitting forcible intervention by one ormore states against another on humanitariangrounds, even without prior UN SecurityCouncil authorization. I want to illustrate thispossibility in two steps.

First, I want to review very briefly theantecedents for a so-called right of forcibleintervention on humanitarian grounds. Sec-ond, I wish to discuss the legal significance ofthe Alliance's intervention in Kosovo and theFRY in light of those antecedents and of theevents described earlier by AmbassadorGreen.5

The Antecedents of a Right ofForcible Humanitarian Intervention

Pre-1945 Practice

State practice prior to World War IIevidenced a surprising frequency of invoca-tion of the principle, particularly in light ofthe political and military costs associatedtherewith.6 Scholarly opinion was similarlycharacterized by a general endorsement ofthe rule.7

The Cold War Period (1945-1990)

However, following the Second WorldWar and the advent of the Charter of theUnited Nations, this seeming enthusiasm forthe existence of a right of unilateral militaryintervention on humanitarian grounds largelyevaporated. The emphasis clearly shiftedfrom the necessity (and hence legality) ofunilateral uses of force in certain circum-stances to institutionalized mechanisms ofcollective response that would obviate suchneed. To buttress such collective measures,unilateral resort to force was generally out-lawed.8



Thus the conventional approach tothe legality of a purported right to forciblyintervene onto the territory of a sovereignstate in the name of humanitarian relief be-came that such was likely a violation of article2(4) of the Charter of the United Nations.9

That article established as a fundamentalprinciple of international law10 that states areto refrain from "the threat or use of forceagainst the territorial integrity or politicalindependence of any state, or in any othermanner inconsistent with the purposes of theUnited Nations". A corollary provision, article2(7), emphasized the sovereignty of the stateand the principle of non-intervention by stip-ulating that nothing in the UN Charter autho-rizes the United Nations "to intervene in mat-ters which are essentially within the domesticjurisdiction" of the state. UN General Assem-bly Resolution 2625 emphasized that thethreat or use of force against the territorialintegrity or political independence of anyState "constitutes a violation of internationallaw … and shall never be employed as ameans of settling international issues".11 TheInternational Court of Justice itself had occa-sion to emphasize the centrality in moderninternational relations of the principle of non-intervention by states into the domestic juris-diction of other states.12

State practice in the pre-1990 periodwas generally consistent with the positionthat there existed no right of unilateral,forcible intervention on humanitariangrounds.13 Only on rare occasions did statesinvoke humanitarian concerns as a justifica-tion for their use of force against otherstates.14 In 1971, India invoked the conceptin defence of its military incursion into EastPakistan (Bangladesh).15 In 1979, Tanzaniasimilarly sought to justify its invasion ofUganda.16 Also in 1979, Vietnam invokedhumanitarian grounds in support of its mili-tary actions against the territory of Cambo-dia.17 The American invasions of Grenada(1983) and Panama (1989) were also, albeitsomewhat half-heartedly, justified on humanrights bases.18 However, in all of these in-



stances the acting states also relied primarilyon an extended notion of self-defence underarticle 51 of the UN Charter in defence of theiractions, or other justifications,19 signaling alack of conviction (or opinio juris) as to thesufficiency of the humanitarian interventiondefence.20 In any event, most third-partystates either avoided endorsement of suchactions on the specific grounds of humanitar-ian intervention, or rejected outright any suchjustification.21

Post Cold War Practice

Notwithstanding this preponderanceof opinion denying the legality of forcibleunilateral humanitarian intervention, the endof the Cold War brought with it not onlyrenewed vigour in the Security Council butalso a seemingly greater willingness on thepart of commentators and states to invokehumanitarian concerns as a justification forthe use of force.22 By far the more favouredform of humanitarian intervention thus coun-tenanced was multilateral intervention underUN auspices, relying upon an extended un-derstanding of the Security Council's ChapterVII powers and a liberal reading of what con-stituted a threat to international peace andsecurity.23

In the wake of the Gulf War, for exam-ple, was the massive repression, at the handsof the Iraqi central authorities, of its rebelliousKurdish populations in northern Iraq in1991.24 The United Nations Security Council,reflecting divided international opinion onwhether this constituted a domestic situationor a matter threatening international peaceand security, ultimately adopted Resolution68825 condemning and demanding an end tothe Iraqi repression. Significantly, while theresolution described the repression and re-sulting humanitarian crisis as posing a threatto international peace and security, it madeno formal reference to Chapter VII.26 Alsosignificantly, no enforcement authority pur-suant to Chapter VII was included in the reso-lution.27



Notwithstanding the lack of SecurityCouncil sanction of such measures, theUnited States, the United Kingdom andFrance sent troops to northern Iraq to estab-lish "safe havens" for Kurdish refugees.28 Theallies further established and enforced "no-fly" zones in the north and subsequently inthe south, thereby interdicting Iraqi militaryaircraft from the protected areas.29 Theseactions were justified on a number of bases.The allies interpreted Resolution 688 verybroadly as impliedly authorizing the use ofmilitary forces with a humanitarian assistancemission.30 Significantly, however, the alliesalso invoked the justification of humanitarianintervention as legalizing their forcible inter-vention into Iraq.31

In 1990, civil war in Liberia threat-ened to plunge that state into anarchy. Inresponse, the Economic Community of WestAfrican States ("ECOWAS"),32 led primarily byNigeria, intervened militarily on August 27,1990 in order to halt the "wanton destructionof human life and property ... [and] ... massivedamage ... being caused by the armed con-flict to the stability and survival of the entireLiberian nation."33 At the time of this actionECOWAS enjoyed no authorization from theSecurity Council under Chapters VII or VIII,although the intervention met with the appar-ent support or at least acquiescence of theinternational community.34 The only basisput forward for such intervention, was, more-over, humanitarian. Ultimately the UN Secu-rity Council invoked its Chapter VII powersand retroactively legitimated the ECOWAS op-eration.35 Given such Security Council autho-rization, the ECOWAS intervention may be oflimited precedent value when considering theemergence of a right of unilateral humanitar-ian intervention. Further, while the initial andwidely supported ECOWAS intervention waspredicated upon the need for humanitarianintervention, again its precedent value in thisregard may be marred by the virtual absenceof any de facto effective governmental au-thority in Liberia at the time of the interven-tion. Nevertheless it has been argued that



the ECOWAS intervention in Liberia, at leastprior to being sanctioned by the SecurityCouncil, indeed represented a significantinstance of state practice.36

A similar case is the intervention inSomalia pursuant to Security Council Reso-lution 794 (1992), which authorized mem-ber states to "use all necessary means toestablish as soon as possible a secure envi-ronment for humanitarian relief operations"pursuant to Chapter VII.37 However, beinga UN mandated intervention, it offers littlesupport to the existence of a correlativeright in member states acting without Chap-ter VII authorization to engage in similarhumanitarian interventions.

The same can be said for Rwanda.Similarly, events following upon the

dissolution of Yugoslavia itself are also dis-appointing in terms of providing a solidprecedent for a right of unilateral forciblehumanitarian intervention. The principaldifficulty with the Yugoslav precedent is todistinguish its internal from internationalaspects. In fact, most of the humanitarianor other intervention in the Yugoslav con-flict (until, it will be argued, Kosovo), isplainly explicable either in terms of interna-tional aggression and Security Council's re-action thereto under relatively uncontrover-sial exercise of its Chapter VII powers,38 orin terms of consent of the parties.39 Inother words, the pre-Kosovo Yugoslav con-text does not present a situation of a purelydomestic humanitarian crisis in which out-side state actors have asserted a unilateral(or even collective) right to intervene indomestic affairs on humanitarian grounds.40

A final example that may be cited isthe ECOWAS intervention in Sierra Leone inFebruary 1998.41 As a result of civil strifethe democratically elected president ofSierra Leone had been ousted in a coupd'état in May of 1997. The UN SecurityCouncil responded with Resolution 1132(1997), calling for the restoration of thedemocratically elected government, findingthat the situation constituted a threat to



international peace and security, encourag-ing ECOWAS to find a peaceful solution to thesituation, but refraining from authorizing theuse of force.42 ECOWAS acted nevertheless,again mainly with Nigerian troops, to restorethe democratic government, a result that waswelcomed by the Security Council.43 While itcan be said that ECOWAS did act unilaterallyand without Security Council authorization,and while ECOWAS justified its intervention inpart on humanitarian grounds, it is morelikely that this was an instance of unilateralintervention to restore a democratic govern-ment.44 As such, its clear precedential valuein terms of unilateral humanitarian interven-tion is open to question.

In short, even in the wake of the ColdWar and the rising prominence of humanitar-ian concerns over those of the unconditionalprinciple of non-intervention, state practice insupport of an unequivocal right of unilateralforcible humanitarian intervention has beenlimited and or ambiguous.45 That experiencelargely only supports the emergence of amuch broader understanding of the SecurityCouncil's Chapter VII powers, and what inparticular can be deemed to constitute athreat to international peace and security.46

However, as I will suggest shortly, the factthat the rhetoric of "humanitarian interven-tion" became, in the post Cold War period,more prevalent as at least a partial justifica-tion for the unilateral use of force by somestates against others, is significant.

The Crystallization of a New NormPermitting Forcible UnilateralHumanitarian Intervention?

There are several elements that arecrucial to appreciating the legal significanceof NATO's military intervention in Kosovo andthe FRY.

First and foremost, of course, is theabsence of any Security Council authorizationpursuant to Chapter VII permitting memberstates to use force against the FRY on human-itarian or any other grounds. While Resolu-



tions 1160 and 1199 both invoked ChapterVII for purposes of determining the existenceof a threat to international peace and secu-rity, the Security Council plainly chose not toauthorize any enforcement action aimed atquelling what it itself termed the"humanitarian catastrophe" unfolding inKosovo. The reasons for this are of courseobvious: Russia and China, in a move disqui-etingly reminiscent of the Cold War era, hadclearly signaled their intent to veto any suchauthorization.47 Thus, notwithstanding someinitial and rather faint attempts (notably bythe Americans) to characterize the use offorce as having been authorized by earlierSecurity Council Resolutions applicable to thebroader Yugoslav crisis, no such intent by theSecurity Council can realistically be inferred.48

A second and very closely relatedpoint is that NATO did not have any SecurityCouncil authorization to intervene forcefullyin the FRY under Chapter VIII as a "regionalarrangement".49 This, taken with the absenceof Chapter VII authorization, clearly removesNATO's intervention from the Charter's collec-tive use of force framework. To this extentthe Kosovo intervention is distinguishablefrom the majority of post-Cold War practice Ihave briefly reviewed, which as seen haslargely been characterized by the prevalenceof collective humanitarian intervention (wheresuch has occurred at all).

The third important aspect of NATO'sactions is the number and nature of theintervening parties. While it has been com-mon parlance (including in my comments to-day) to speak of intervention by NATO asopposed to intervention by NATO's con-stituent members, in reality there is no legalrelevance to the interposition of NATO, as aregional defence and security organization,between its members and the FRY. NATO asan organization, I would argue, is of nogreater (or lesser) legal significance than thesum of its parts. NATO has little if anyinternational legal personality of its own. TheNorth Atlantic Treaty itself, which states thatNATO is established in full consistency with



the UN Charter and commits its members toobserving the principles of the Charter,50

clearly provides that ultimate decision-making is in the hands of the North AtlanticCouncil,51 on which each member state isrepresented.52 As such, NATO has no supra-national authority or decision-making powerindependent from those of its members.Hence, decisions taken by the Council andthus by NATO are in fact the decisions ofeach and all of its members.53

In short, NATO is not so much anactor in the FRY as a tool in the hands of the19 member states of the Alliance. Any one ofthose states could have blocked NATO's mili-tary intervention in Kosovo. To the contrary,they have each, either directly or through theagency of their representatives on the NorthAtlantic Council, asserted their legal right toundertake such military intervention on hu-manitarian grounds. Similarly, they haveeach, either directly or again through theagency of NATO, in fact intervened militarilyin the FRY on humanitarian grounds. Inreality, therefore, this intervention was under-taken by 19 individual states acting, albeit,concertedly through machinery they had putin place to facilitate such concerted militaryaction. There is thus no principled or legallyrelevant way of distinguishing this actionfrom actions undertaken separately by 19like-minded states.54 Therefore, the sole le-gal significance of the plural nature of theintervention, I would submit, is that it servesas a tremendously forceful precedent inshaping the content of customary interna-tional law on the issue.

Further, these 19 states, while obvi-ously located in a relatively discrete geo-graphical area, represent a significant cross-section of the international community. Notonly do they comprise the overwhelming ma-jority of states in Europe and North America,they now include three former members ofCold War "Eastern Europe";55 represent atleast two of the world's main legal systems,include one predominantly Muslim state,56

and encompass economies of considerably



varying magnitudes.In short, the intervention in this case

represents significant state practice. Ar-guably, moreover, there have been two setsof forcible interventions: In addition to theactual use of force between March 24 andJune 10, 1999, the original issuance of theActivation Orders by the North Atlantic Coun-cil on October 13, 1998, which clearly repre-sented a "threat [of the] use of force" withinthe meaning of article 2(4) of the Charter,might also be considered forcible interven-tion.

A fourth legally significant element isthe insistence by NATO members that inusing force against the FRY they were notacting inconsistently with the UN Charter.Instead, NATO members consistently main-tained that they were legally entitled to useforce on humanitarian grounds alone.57

Further and in sharp contrast to priorinvocations of humanitarian violations as ajustification for intervention, unilateral or col-lective, NATO and its members did not rely onhumanitarian grounds as a poor-cousin alter-native to other perhaps less controversialjustifications. Nor would it have been realis-tic to do so. While transborder refugee flowsand ethnic tensions in the region may wellhave posed a threat to international peaceand security as determined by the SecurityCouncil, it is unlikely that any member of theAlliance could realistically have claimed to beacting in self defence in bombing the FRY.Likewise, there certainly was no consent orinvitation on the part of the central govern-ment in the FRY, and unlike the situations inSomalia or Rwanda, there clearly was such acentral government exercising (all too) effec-tive control over the territory in question.Further, even if the KLA could have beencharacterized as a national liberation move-ment controlling sufficient territory to invieinternational intervention,58 it was clear fromthe outset, both in the Security Council and inNATO statements, that no support was beingproffered to the KLA as a national liberationmovement nor for its goal of independence



for Kosovo.59 In particular, while both theSecurity Council and NATO members repeat-edly called for a greater degree of autonomyfor Kosovo, they equally stressed that thiswas to be accomplished "within the YugoslavFederation".60 They also went to consider-able lengths to affirm their "commitment tothe preservation of the FRY's territorial in-tegrity".61 In short, at no relevant time didNATO or its members endorse any form ofexternal self-determination for Kosovo, pre-ferring instead to focus on the need for agreater degree of internal self-determination.Finally and notwithstanding statements at-tributing the need for forcible intervention tothe policies of the Milosevic government (asdistinct from the Yugoslav people),62 it wasnever a stated objective of NATO's interven-tion to seek to install a particular form ofgovernment, democratic or otherwise, in Bel-grade.

When all of these factors are com-bined, they would appear to provide remark-able evidence of state practice and opiniojuris that would be required for the crystal-lization of an emergent norm of customaryinternational law permitting unilateral forcibleintervention on humanitarian grounds.63 Thepossibility in general of such incremental de-velopment of further exceptions to the gen-eral prohibition on the use of force containedin article 2(4) of the Charter has alreadyreceived express recognition from the Inter-national Court of Justice in the Nicaraguacase.64 That possibility has further been thefocus of considerable doctrinal study and, ifone is to judge from the actions of states Ihave reviewed, is also generally admitted bystates (at least from time to time).

Nor should such a developmentcome as any great surprise or require invoca-tion of theories of "instantaneous" creation ofcustomary international law.65 As demon-strated, NATO's intervention crowns a long ifproblematic evolution in the posture of stateswhen it comes to the juxtaposition of thedeeply-rooted principle of non-interventionand the sometimes competing principle of



respect for basic dictates of humanity. As myearlier review of state practice illustrated,states have with increasing frequency sincethe end of the Cold War been asserting theexistence of a legal right (if not obligation) tointervene in the allegedly domestic affairs ofother states on humanitarian grounds. Untilnow, such forays have primarily been justifiedthrough co-option of the collective securityapparatus of the UN Charter. Other suchforays, as we have seen, have had a cloudedgenesis and have thus often been of dubiousprecedential value. In retrospect none ofthese can be considered entirely irrelevant,however, given that, in a rare moment whenappropriate circumstances and political willcoincided, a significant number of stateschose to act unilaterally and tojustify suchaction on humanitarian grounds. It is possi-ble, in other words, to view NATO's interven-tion as but another -- albeit enormous -- stepin the gradual normative shift, now underwayfor some time, from a rigid to a conditionalconception of the principle of non-intervention.

Due weight must of course also begiven to the fact that there has been nounanimous chorus of support from all quar-ters for the actions of the Alliance. Indeed,two permanent Security Council members(the Russian Federation and the People's Re-public of China) have been openly critical ofthe action.66 Their voices have been joinedby a significant number of others.67 What-ever the motivations underlying theseprotests, they must be taken at face valuewhen assessing the likelihood that recentevents will have law-creating effects.

However, it is also the case that anynewly emerging norm of international law islikely to meet with some, perhaps even con-siderable, initial resistance. The true test willbe one of time and how generally and consis-tently the objections to the unilateral forayare maintained.68 While it is of course signifi-cant that two permanent members of theSecurity Council objected to the NATO inter-vention, it is equally if not more so that a



majority of permanent members supportedand indeed participated in it.69 While dissent-ing voices other than those of Russia andChina must also be given their due weight, soto must the views of those non-NATO statesthat either supported NATO's actions ormerely acquiesced in them.70

For such an event to be relegated tolegal insignificance would be to attach nolaw-making significance at all to the con-certed and unambiguous actions of 19 of themost influential states on the planet, includ-ing the only remaining military superpower --and one with a historic penchant for foreigninterventions at that. It is submitted thatsuch a conclusion could only be defensible inthe light of some future inconsistent practiceby a significant number of the same statesinvolved in the NATO intervention; such in-consistent practice could serve to underminethe precedential value of that intervention.

A crude way of testing this viewmight be to ask the following rhetorical ques-tion: Can it seriously be doubted that, wereCanada to undertake a brutal campaign ofrepression against an ethnic minority withinits borders in clear violation of basic humani-tarian norms, it would be estopped on thebasis of its actions in the FRY from objectingto forcible external intervention to stop suchbrutalities?

Conclusions

As suggested above, time will revealthe true law-making effect of the NATO inter-vention in Kosovo and the FRY. Future in-stances of state practice -- either consistentor inconsistent with the NATO precedent --will of course be key, although it is to behoped that circumstances calling for invoca-tion of the precedent will be rare.

As it happens the International Courtof Justice may also be called upon to assist indetermining the legal content and signifi-cance of the acts of at least some NATOmembers, assuming jurisdictional issues donot deprive the Court of this role. Should



jurisdiction be found, the challenges facingthe Court will be significant. For example, theCourt will have to address the temporal prob-lem of when exactly unilateral actions ofstates acquire the mantle of legality. In thiscase, will NATO member's acts be condemnedas illegal at the time they were initiated butsomehow recognized as precedent-settingwith respect to the future content of the law?This will require further grappling with theparadox of a legal system which is in partcustomary and thus constantly evolving un-der the influence of its principal subjects,nation states, while at the same time purport-ing to regulate the conduct of those samesubjects.

This may also be an opportunity forthe Court, assuming it assumes jurisdictionand recognizes the emergence of a norm ofthe sort propounded by NATO members, toaddress the theoretical and policy underpin-nings of such a norm.71 The Court may findguidance here in observing that, in acting asthey have, NATO members appear to haveacknowledged the ascendancy of the princi-ple of respect for basic humanitarian stan-dards of conduct over the principle of non-intervention.

Alternatively, the conduct of NATOmembers here may be explained on the basisthat they have concluded that extreme hu-manitarian abuses do not come within thesole ambit of "domestic affairs", in much thesame was as the persecution of foreign na-tionals has long been recognized as raisingtransnational issues.

Either way, the principle of non-intervention ceases to be an absolute andunqualified grundnorm of the internationallegal system, and instead becomes a muchmore tightly circumscribed principle subordi-nated to the new overriding principle of re-spect for basic humanitarian law:This war gives human rights prece-dence over the rights of states. TheFederal Republic of Yugoslavia hasbeen attacked without a direct UNmandate for the alliance's action. But



the alliance has not acted out oflicense, aggressiveness or disrespectfor international law. On the con-trary, it has acted out of respect forthe law that ranks higher than theprotection of the sovereignty ofstates. It has acted out of respect forthe rights of humanity, as they arearticulated by our conscience as wellas by other instruments of interna-tional law.72

Endnotes

1 NATO was established as a regional com-mon defence and security organization by theNorth Atlantic Treaty, signed in Washington onApril 4, 1949. Current members of the Allianceare: Belgium, Canada, the Czech Republic, Den-mark, France, Germany, Greece, Hungary, Iceland,Italy, Luxemburg, the Netherlands, Norway, Poland,Portugal, Spain, Turkey, the United Kingdom andthe United States of America.2 In this comment "humanitarian interven-tion" is used generally to refer to the use of forceby one state against another state on humanitariangrounds, and excludes unless otherwise statedintervention based on consent, aid to or rescue ofone's nationals, aid to insurgency movements ornational liberation movements, or intervention toinstall or support democratic governments. On theissue of the many definitions of intervention andtheir normative importance, see, e.g., L.F. Dam-rosch, "Changing Conceptions of Intervention inInternational Law" in L.W. Reed & C. Kaysen, eds.,Emerging Norms of Justified Intervention (1993) 91at 91; I. Brownlie, "Thoughts on Kind-Hearted Gun-men" in R.B. Lillich, ed., Humanitarian Interventionand the United Nations (Charlottesville: UniversityPress of Virginia, 1973) 139 at 139-140; S.G. Si-mon, "The Contemporary Legality of Unilateral Hu-manitarian Intervention" (1993) 24 Cal. W. Int'l L.J.117 at 119-121.3 See T.M. Franck & N.S. Rodley, "AfterBangladesh: The Law of Humanitarian InterventionBy Military Force" (1973) 67 A.J.I.L. 275 at 303:

International law is not static…. In-ternational law, as a branch of behaviouralscience, as well as of normative philoso-phy, may treat [an] event as the harbingerof a new law that will, henceforth, increas-



ingly govern interstate relations…. On theone hand, international lawyers must notbe slow to accept changes which are actu-ally occurring; neither should they fad-dishly accept as law any event merely be-cause it has occurred.

4 See R. Higgins, "Intervention and Interna-tional Law" in H. Bull, ed., Intervention in World Politics (Oxford: Clarendon Press, 1984) 29 at 42:"…the task of the international lawyer over the nextfew years is surely not to go on repeating therhetoric of dead events which no longer accordwith reality, but to try to assist political leaders toidentify what is the new consensus about accept-able and unacceptable levels of intrusion."5 This comment does not offer any view as tothe legality of the conduct of the military actions ofNATO or the military forces of its member statesonce initiated (i.e. the jus in bello as distinct fromthe jus ad bellum). Similarly, it will be for others toassess the overall wisdom of military intervention,whether in the Balkans or elsewhere, in the further-ance of humanitarian interests. No comment isoffered here on the political, military, or moralcorrectness of NATO's actions in Kosovo and theFRY, all of which require assessments far beyondthe somewhat crude calculus of our present systemof international law. This comment therefore fo-cuses solely on the issue of what impact, if any,NATO actions in relation to Kosovo may have onthe threshold issue of the purported existence of alegal right of unilateral forcible humanitarian inter-vention.6 See, e.g., E. Stowell, Intervention in Interna-tional Law (1921) at 63 ff.; M. Ganji, InternationalProtection of Human Rights (1962), at 22ff; T.M.Franck & N.S. Rodley, "After Bangladesh: The Lawof Humanitarian Intervention by Military Force"(1973) 67 A.J.I.L. 275 at 279-285. See also, for abrief overview of the principal such instances ofstate practice, Reisman & McDougal, supra, note 6at 179-183.7 See, e.g., H. Grotius, The Rights of War andPeace (Universal Classics Library, Campbell trans.1901) at 285-289; E. Vattel, Droit des Gens (T.Pomroy ed. 1805) at 56; both quoted in W.M.Reisman & M.S. McDougal, "Humanitarian Interven-tion to Protect the Ibos" in R.B. Lillich, ed., Humani-tarian Intervention and the United Nations(Charlottesville, Va.: University Press of Virginia,1973) 167 at 170; P. Guggenheim, Traité de droitinternational public (1953) at 289; E. Borchard, TheDiplomatic Protection of Citizens Abroad (1916) at14; E. Stowell, Intervention in International Law(1921) at 63; L. Oppenheim, International Law



(1905) at 347; L. Oppenheim, International Law (7th

ed. H. Lauterpacht, 1948) at 279-280; 6 J. Moore,Digest of International Law (1906) at 347-67; H.Lauterpacht, International Law and Human Rights(1950) at 120ff. But see, e.g., P.H. Winfield, "TheGrounds of Intervention in International Law"(1924) 5 Brit. Y.B. Int'l L. 149; H. Hodges, TheDoctrine of Intervention (1915) at 87.8 See, e.g., P. Jessup, A Modern Law of Na-tions (1948) at 169-170; I. Brownlie, InternationalLaw and the Use of Force by States (1963); C.H.M.Waldock, "The Regulation of the Use of Force byIndividual States in International Law" (1952-II) 81Hague Recueil 455 at 492; but see R.B. Lillich,"Forcible Self-Help by States to Protect HumanRights" (1967) 53 Iowa L.Rev. 325 at 347; Reisman& McDougal, supra, note 6 at 176-178.9 See, e.g., M. Akehurst, "Humanitarian Inter-vention" in H. Bull, ed., Intervention in World Poli-tics (Oxford: Clarendon Press, 1984) 95 at 104-112; H. Wehberg, "L'Interdiction du Recours à laForce: Le Principe et les Problèmes Qui Se Posent"(1951) 78 Hague Recueil at 7, 70ff; A. von Ver-dross, "Idées Directrices de l'Organisation des Na-tions Unies" (1953) 83 Hague Recueil at 1, 14; L.Oppenheim, International Law (7th ed. Lauterpacht,1952), vol. 2 at 154; Brownlie, ibid. at 265-268; M.Akehurst, A Modern Introduction to InternationalLaw 4th ed. (1982) at 219-221.10 Case Concerning Military and ParamilitaryActivities (Nicaragua v. USA), [1986] I.C.J. Rep. 14.11 Principle 1, Declaration on Principles of In-ternational Law Concerning Friendly Relations andCo-operation among States in Accordance with theCharter of the United Nations, UNGA Res. 2625(XXV), UN GAOR, 25th Sess., Supp. No. 28, at 121,UN Doc. A/8028(1971), adopted by consensus onOctober 24, 1970. Note too the language used inthe eighth paragraph of the preamble to the Decla-ration: "… the strict observance by States of theobligation not to intervene in the affairs of anyother State is an essential condition to ensure thatnations live together in peace with one another,since the practice of any form of intervention notonly violates the spirit and letter of the Charter, butalso leads to the creation of situations whichthreaten international peace and security"[emphasis added].12 Case Concerning Military and ParamilitaryActivities (Nicaragua v. USA), supra, note 12 at106-110.13 See, e.g., the surveys of state opinion inJ.-P.L. Fonteyne, "Forcible Self-Help by States toProtect Human Rights: Recent Views from theUnited Nations" in Lillich, ed., supra, note 2 197; R.



Higgins, "The Legal Limits to Use of Force bySovereign States -- United Nations Practice" (1961)37 Brit. Y.B. Int'l L. 269.14 See, e.g., Franck & Rodley, supra, note 3 at285-289. For the view that the French interventionin the Central African Republic in 1979 constituteda unilateral humanitarian interve(Unntion, see Si-mon, supra, note 2 at 147-148.15 See A.M. Weisburd, Use of Force: The Prac-tice of States Since World War II iversity Park,Pennsylvania: Pennsylvania State University Press,1997) at 146-150; Akehurst, supra, note 11 at 96;Burmester, supra, note 20 at 285-289. And seegenerally T.M. Franck & N.S. Rodley, "AfterBangladesh: The Law of Humanitarian Interventionby Military Force" (1973) 67 A.J.I.L. 275.16 See F. R. Tesón, Humanitarian Intervention:An Inquiry Into Law and Morality (Dobbs Ferry, NY:Transnational Publishers, 1988) at 159-175; Ake-hurst, supra, note 11 at 99; Weisburd, ibid. at40-42; Burmester, supra, note 20 at 289-291.17 Weisburd, supra, note 23 at 43; Akehurst,supra, note 11 at 97-98; Burmester, supra, note 20at 292-295.18 See, e.g., W.M. Reisman, "Coercion and Self-Determination: Construing Charter Article 2(4)"(1984) 78 A.J.I.L. 642; Weisburd, supra, note 23 at234-240.19 E.g. defence of their nationals or of thenationals of third party states, or invitation, orreprisals.20 See T. J. Farer, "An Inquiry Into the Legiti-macy of Humanitarian Intervention" in L.F. Dam-rosch & D.J. Scheffer, eds., Law and Force in theNew International Order (1991) 185 at 193; Weis-burd, ibid. at 41 (Tanzania), 43 (Vietnam), 148(India), 236 (USA -- Grenada), 239 (USA -- Panama).See also Akehurst, supra, note 11 at 99.21 These interventions were denounced by theUN General Assembly; see N.S. Rodley, "CollectiveIntervention to Protect Human Rights and CivilianPopulations: The Legal Framework" in N.S. Rodley,ed., To Loose the Bands of Wickedness (1992) 14 at20. See also Weisburd, ibid. at 42 (Tanzania), 43(Vietnam), 148-149 (India), 237-238 (USA --Grenada), 239-240 (USA -- Panama); Akehurst, ibid.;M.E. O'Connell, "Regulating the Use of Force in the21st Century: The Continuing Importance of StateAutonomy" (1997) 36 Col. J. Transnat'l L. 473 at477.22 Gordon, ibid. at 544-46.23 See, e.g., B.F. Burmester, "On HumanitarianIntervention: The New World Order and Wars toPreserve Human Rights" (1994) Utah L. Rev. 269;D.M. Kresock, "Ethnic Cleansing in the Balkans:



The Legal Foundations of Foreign Intervention"(1994), 27 Cornell Int'l L. J. 203; J.A.R. Nafziger,"Humanitarian Intervention in a Community ofPower -- Part II" (1994) 22 Denv. J. Int'l L. & Pol.219; V.P. Nanda, "Tragedies in Northern Iraq,Liberia, Yugoslavia and Haiti -- Revisiting the Valid-ity of Humanitarian Intervention Under Interna-tional Law -- Part 1" (1992) Denv. J. Int'l L. & Pol'y305; B. Pruitt-Hamm, "Humanitarian Intervention inSoutheast Asia in the Post-Cold War: Dilemmas inthe Definition and Design of International Law"(1994) 3 Pac. L.J. 183; D.J. Scheffer, "Toward aModern Doctrine of Humanitarian Intervention(1992) 23 U. Tol. L. Rev. 253.24 For a detailed review of these events, seeM.E. O'Connell, "Continuing Limits on UN Interven-tion in Civil War" (1992) 67 Ind. L.J. 903 at 904-909.25 Security Council Resolution 688 (1991), UNDoc. S/Res/688 (1991). The resolution wasadopted 10 votes to 3 (Cuba, Yemen and Zim-babwe), with 2 abstentions (China and India).26 See Gordon, supra, note 36 at 49. See alsoP. Malanczuk, Humanitarian Intervention and theLegitimacy of the Use of Force (1993) at 18.27 Ibid.28 See M.J. Harrington, "Operation ProvideComfort: A Perspective in International Law"(1993) 8 Conn. J. Int'l L. 635 at 643-46; J.E. Strom-seth, "Iraq's Represssion of its Civilian Population:Collective Responses and Continuing Challenges"in L.F. Damrosch, ed., Enforcing Restraint: Collec-tive Intervention in Internal Conflicts (1993) 77 at89-90.29 Ibid.30 Ibid. See also Wippman, supra, note 31 at472.31 See Malanczuk, supra, note 38 at 19.32 ECOWAS was established under the Treatyof the Economic Community of West African States,May 28, 1975, (1975) 1010 U.N.T.S. 17. Originalmembers of the Community were Benin, Gambia,Ghana, Guinea-Bissau, Ivory Coast, Liberia, Mali,Mauritania, Niger, Nigeria, Senegal, Sierra Leone,Togo and Upper Volta (now Burkina Faso). For adescription of the genesis of the Community, see K.Nowrot & E.W. Schabacker, "The Use of Force toRestore Democracy: International Legal Implica-tions of the ECOWAS Intervention in Sierra Leone"(1998) 14 Amer. U. Int'l L. Rev. 321 at 332-334.33 See J. Levitt, "Humanitarian Intervention ByRegional Actors in Internal Conflicts: The Cases ofECOWAS in Liberia and Sierra Leone" (1998) 12Temp. Int'l & Comp. L.J. 333 at 343.34 Ibid.35 Ibid. at 347. See also Security Council



Resolution 788 (1992), UN Doc. S/Res/788 (1992),commending ECOWAS for its attempts to bringpeace to Liberia; Security Council Resolution 866(1993), UN Doc. S/Res/866, September 22, 1993establishing the United Nationas Observeer Missionin Liberia which was to cooperate with the ECOWASpeacekeeping mission.36 See Levitt, ibid.37

Security Council Resolution 794 (1992), UNDoc. S/Res/794 (1992). See generally on theevents leading to this resolution Burmester, supra,note 34 at 313-317.38 See, e.g., Security Council Resolution 770(1992), UN doc. S/Res/770 (1992); Security CouncilResolution 816 (1993), UN doc. S/Res/816 (1993).39 See, e.g., M.E. O'Connell, "Regulating theForce in the 21st Century: The Continuing Impor-tance of State Autonomy" (1997) 36 Col. J.Transnat'l L. 473 at 486. Note in particular theconclusion of a General Framework Agreement forPeace in Bosnia and Herzegovina on December 14,1995: (1996) 35 I.L.M. 75 at 89.40 See generally R.E. Rupp. "Cooperation, Inter-national Organizations, and Multilateral Interven-tions in the Post-Cold War Era: Lessons Learnedfrom the Gulf War, the Balkans, Somalia, and Cam-bodia" (1998) 3 U.C.L.A.J. Int'l & Foreign Aff. 183.41 See Nowrot & Schabacker, supra, note 46 at332; Levitt, supra, note 47 at 364-367.42 Security Council Resolution 1132 (1997),UN Doc. S/Res/1132 (1997).43 Statement by the President of the SecurityCouncil, U.N. Doc. S/PRST/1998/5 (1998).44 See generally Nowrot & Schabacker, supra,note 46; but see Levitt, supra, note 47 at 364-367.45 Note that the 1994 intervention in Haiti isnot discussed here as it cannot truly be consideredan instance of humanitarian intervention. Rather,it is more correctly characterized as an intervention(ultimately virtually non-forcible) to restore ademocratically elected government: see R. Gordon,supra, note 36 at 53; O'Connell, supra, note 63 at487-488. See also generally R. Falk, "The HaitiIntervention: A Dangerous World Order Precedentfor the United Nations" (1995) 36 Harv. Int'l L.J.341.46 See, e.g., Wippman, supra, note 31 at 461-464.47 See Baggett, supra, note 71, text accompa-nying footnote 74.48 See also the statement made by UN Secre-tary General on March 24, 1999, insisting thatwhile "there are times when the use of force maybe legitimate in the pursuit of peace, … the[Security] Council should be involved in any deci-



sion to resort to force". Clearly the SecretaryGeneral was of the view that no Security Councilauthorization existed for NATO's use of force.49 As required by article 53 of the UN Charter.50 See the preamble to the Treaty and articles1, 5 and 7.51 See NATO, The NATO Handbook , 1998 edi-tion, chapters 2 ("The Principal Policy and DecisionMaking Institutions of the Alliance") and 7 ("Policyand Decision Making"), available online at <http://www.nato.int/docu/handbook/1998/>, visited June30, 1999.52 North Atlantic Treaty, article 9.53 Supra, note 106, chapter 2:

"Decisions are the expression of thecollective will of member governments ar-rived at by common consent. All membergovernments are party to the policies for-mulated in the Council or under its author-ity and share in the consensus on whichdecisions are based…. When decisionshave to be made, action is agreed upon onthe basis of unanimity and common ac-cord. There is no voting or decision bymajority. Each nation represented at theCouncil table or on any of its subordinatecommittees retains complete sovereigntyand responsibility for its own decisions."

54 This is not to prejudge, however, the valid-ity of policy arguments to the effect that thepotential for abuse of a right of humanitarianintervention may more readily be avoided or re-duced through a preference for concerted, as op-posed to truly unilateral, action: see, e.g.,Burmester, supra, note 34 at 282-283. The onlypoint made here is that in assessing the generalityof state practice, the mere fact of concerted actionamongst 19 states does not detract from the factthat such still represents 19 instances of statepractice.55 The Czech Republic, Hungary and Poland.56 Turkey.57 See, e.g., Department of Foreign Affairs andInternational Trade, "Backgrounder: Canada andKosovo", June 17, 1999, <http://www.dfait-maeci.gc.ca/foreignp/kosovo/text/back-e.asp>,visited June 30, 1999. See also "The situation inand around Kosovo" - Statement Issued at theExtraordinary Ministerial Meeting of the North At-lantic Council held at NATO Headquarters, Brus-sels, April 12, 1999, NATO Press Release M-NAC-1(99)51; "Statement on Kosovo" - Statement issuedby the Heads of State and Government participat-



ing in the meeting of the North Atlantic Council inWashington, D.C., April 23,1999, NATO Press Re-lease S-1(99)62; Press Statement by NATO Secre-tary General Javier Solana, March 23, 1999, NATOPress Release (1999)040; "Statement on Politicaland Military Objectives of NATO Action with Regardto the Crisis in Kosovo", March 23, 1999, NATOPress Release (1999)043; Press Statement by NATOSecretary General Javier Solana, NATO SecretaryGeneral following the Commencement of Air Oper-ations, March 24, 1999, ATO Press Release(1999)041; Letter from NATO Secretary General toPresident of the FRY, January 30, 1999, UN Doc.S/1999/107.58 As contemplated by the ICJ in the Nicaraguacase, supra, note 12.59 See supra, notes 75, 78 and 112.60 Ibid.61 Ibid.62 Supra, footnote 112.63 See North Sea Continental Shelf Cases,[1969] I.C.J. Rep. 4 at 42.64 Military and Paramilitary Activities inNicaragua, supra, note 12 at 108-109. See also D.Kritsiotis, "Reappraising Policy Objections to Hu-manitarian Intervention" (1998) 19 Mich. J. Int'l L.1005 at 1010-1011, 1013.65 North Sea Continental Shelf Cases, supra,note 119 at paras. 73-74.66 See Baggett, supra, note 71, text accompa-nying footnote 74.67 See, e.g., Declaration of the Interparliamen-tary Assembly of States Members of the Common-wealth of Independent States Concerning MilitaryOperations by NATO in the FRY, April 3, 1999, UNDoc. S/1999/461, April 22, 1999 (unanimous ob-jection to such use of force by Armenia, Belarus,Kazakhstan, Kyrgyz Republic, Moldova, RussianFederation, Tajikistan and Ukraine); Communiquéof March 25, 1999 of the Rio Group of LatinAmerican States Concerning the Situation inKosovo, UN Doc. S/1999/347, March 26, 1999(challenging NATO actions as contrary to articles53 and 54 of the UN Charter); Statement of theMovement of Non-Aligned Countries, April 9, 1999,UN Doc. S/1999/451, April 21, 1999 (emphasizingthat diplomacy is the only route to peace and thatthe Security Council bears sole responsibility forinvoking the use of force).68 See, e.g., J.A. Beesley, Canadian Statementof December 4, 1970 to the First Committee of theU.N. General Assembly, reprinted in J.A. Beesley &C.B. Bourne, eds., "Canadian Practice in Interna-tional Law During 1970 as Reflected Mainly inPublic Correspondence and Statements of the De-



partment of External Affairs" (1971), 9 Can. Y.B.Int'l L. 276 at 276-278.; see also M.S. McDougal,"The Hydrogen Bomb Tests and the InternationalLaw of the Sea" (1955) 49 A.J.I.L. 356 at 356-358.69 It is also noteworthy that a draft SecurityCouncil Resolution tabled by Russia on March 26,1999 calling for an end to NATO's actions inKosovo was defeated by a 12-3 vote: See "SecurityCouncil Rejects Demand for Cessation of Use ofForce Against FRY", UN Press Release SC/6659,March 26, 1999. Only the Russia, China andNamibia voted in favour of the draft resolution.70 See, e.g., Chairman's Summary of the Delib-erations on Kosovo at the Informal Meeting of EUHeads of State on April 14, 1999, UN Doc. S/1999/429, esp. para. 2 (expressing unanimoussupport for NATO intervention in Kosovo); Declara-tion of the Ministerial Meeting of the Organizationof the Islamic Conference on Bosnia & Hercegovinaand Kosova, April 7, 1999, UN Doc. S/1999/394,April 7, 1994 (condemning human rights abuses byFRY in Kosovo and expressing "regret" that theSecurity Council has been unable to discharge itsresponsibilities in the matter). On the significanceof acquiescence to the formation of new customarynorms, see, e.g., I.C. MacGibbon, "Customary Inter-national Law and Acquiescence" (1957) 33Brit.Y.B.I.L. 115 at 118-119.71 See generally Kritsiotis, supra, note 120.72 Václav Havel, President of the Czech Repub-lic, in an address to the Canadian Parliament,Thursday, April 29, 1999; reprinted in the OttawaCitizen, April 30, 1999, p.A19.

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