Post on 07-Feb-2023
László Valki
The Kosovo War and the Norms of International Law
In connection with the legal grounds of the NATO air campaign
against Yugoslavia, three questions emerge:
1. Was the air campaign in compliance with the present
international legal order?
2. Could the air campaign be considered as lawful humanitarian
intervention?
3. Is the present legal order in compliance with the recent
shape of international relations?
The answer is negative on all three counts. The air campaign was
not in compliance with the current international legal order,
because, among others, this order does not recognize the legality of
humanitarian intervention. At the same time the current international
legal order is irreconcilable with the present system of
international relations.
Those who decided on the air attacks were not concerned with the
question of legality. The NATO decisions of 13 October 1998 and 24
March 1999 ordering the air strikes did not contain any explanations
whatsoever, nor did politicians discuss the legal aspects of the
question in any detail. For instance, in his speech on 24 March 1999,
the day when the air campaign was launched, President Clinton listed
the political and humanitarian considerations explaining his
decision, but did not mention any international legal argument.1 The
Americans avoided discussing international legal questions even
later, probably thinking that if nothing was said, nothing would have
to be denied, and in this they were absolutely right. European –
particularly German2 and British – politicians, on the other hand,
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showed more concern with the international legal aspects of the
question. Generally, their arguments coincided with those Secretary
General Solana had listed in a letter addressed to the permanent
representatives of the member states on 9 October 1998. The purpose
of the letter was to lay the legal groundwork for the activation
order (ACTORD) issued four days later, authorizing Wesley Clark,
Supreme Allied Commander in Europe, to launch the air attack. It
stated that NATO was within its right to use its air force because
(a) Belgrade had not complied with the demands of the
international community, despite mandatory UNSC Resolutions 1160 and
1199;
(b) The report of the UN Secretary General pursuant to both
resolutions warned of the danger of humanitarian disaster in Kosovo;
(c) The humanitarian catastrophe continued because no concrete
measures towards a peaceful resolution of the crisis had been taken
by Yugoslavia;
(d) Russia and China made it clear during the preceding
negotiations that they would veto any UNSC resolution containing the
implementation of forcible measures in the future;
(e) The deterioration of the situation in Kosovo and its
magnitude constituted a serious threat to peace and security in the
region.3
Javier Solana, in supplementing the above arguments, referred to
the last sentence of UNSC Resolution 1119, according to which, the
UNSC decided that “should the concrete measures demanded in this
resolution ... not be taken, to consider further action and
additional measures to maintain or restore peace and security in the
region.” He also added that “the Allies believe that in the
particular circumstances with respect to the present crisis in Kosovo
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... there are legitimate grounds for the Alliance to threaten and, if
necessary, to use force.” The letter did not contain detailed
explanations and legal arguments other than the above, nor was a
document containing such ever prepared. This is not uncommon in the
history of international relations, but this conflict cannot be
compared to earlier ones. Apart from the first, small-scale
interventions of NATO in Bosnia in 1994 and 1995, the air campaign
against Yugoslavia was the first war ever in the history of the North
Atlantic Alliance. As far as the legal arguments of the Secretary
General’s were concerned, according to most international lawyers,
Solana was not right, since the current international legal order
prohibits any use of force unless authorized by the UNSC.4
The Current International Legal Order
The current international legal order does not differ greatly
from the legal order set up more than half a century ago at the end
of the Second World War. That order intended to establish the system
of „collective security,” that is, to apply the principle of „all for
one and one for all” in international relations. This was based on
the experience of two world wars which had shown that, left alone,
states are incapable of defending themselves against outside
aggression, therefore, if it becomes necessary, they form alliances
and coalitions. However, by the time they do, it is mostly too late
because either aggression is impending or has already taken place. If
this happens, the victim usually cannot be protected. The most that
can be done is the subsequent restoration of sovereignty, i.e., the
liberation of the invaded state by concerted effort. Such operations
tend to nearly destroy the state concerned and the losses sustained
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by the liberators also reach the limits of endurance. This is why the
League of Nations was established after the First World War, whose
aim was to prevent at least the launching of wars of territorial
conquest. After the failure of the organization, that is, the
outbreak of the Second World War, the conclusion was again drawn that
it must never be allowed to happen again. The United Nations was to
guarantee this. Its founders believed that they had learned from the
experiences of the operation of the League of Nations, and they tried
to make use of this knowledge in setting up the organization and in
framing its legal structure.
The international legal order today is virtually identical to
the one codified at the end of the Second World War. Its basic norms
are included in the UN Charter as follows:
1Notes
? President Clinton, Address to the Nation, 24 March 1999. In Marc Weller(ed.), The Crisis in Kosovo 1989-1999. International Documents and Analysis, Vol. 1,Cambridge, Documents and Analysis Publishing Ltd., 2000, p. 498.2 Since its establishment, the Bundeswehr was used for the first time in theair campaign. See Armin A. Steinkamm, “Völkerrecht, Humanitäre Interventionund Legitimation des Bundes-Einsatzes. Völker- und wehrrechtliche Aspekte desKosovo-Konflikts 1999.” Südosteuropa, 49. Jg., Nr. 5/6, 2000, p. 254.3 Quoted by Bruno Simma, “NATO, the UN and the Use of Force: Legal Aspects.”European Journal of International Law, Vol. 10, No. 1., 1999. p. 7.4 The first critical analysis was written by Bruno Simma that appeared in theInternet some days after the air campaign had started (his paper was publishedlater by the European Journal of International Law – Simma, op. cit.). See alsoAntonio Cassese, “Ex iniuria oritur: Are we moving towards internationallegitimation of forcible humanitarian countermeasures in the world community?”European Journal of International Law, vol. 10, No. 1, 1999, pp. 23-31; Thomas Franck,“Lessons of Kosovo”. American Journal of International Law (AJIL), Vol. 93, No. 4., p.857-860; Hanspeter Neuhold, Die „Operation Allied Force” der NATO: rechtmäßigehumanitäre Intervention oder politisch vertretbarer Rechtsbruch?” In ErichReiter (Hrsg.), Der Krieg um das Kosovo 1998/99. Mainz, v. Hase & Koehler Verlag,2000.
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1. The threat or use of force against the territorial
integrity and political independence of any state is prohibited (Art.
2(4)).
2. The Charter allows for only two exemptions from the general
prohibition:
(a) All states have the inherent right of individual or
collective self-defense in case of an armed attack (Art 51).
(b) The UNSC may decide on the use or threat of force against an
aggressor state by the member states of the UN (Art 41).
3. The member states of the UN conferred the primary
responsibility on the Security Council for the maintenance of
international peace and stability (Art. 24 (1)).
4. Only the UNSC may decide on the threat or use of force. The
General Assembly— contrary to its „Uniting for Peace” resolution—may
not (Art. 11 (1)). The same applies to the „regional arrangements”
described by UN Chapter VIII such as the OSCE or the OAS, except if
the UNSC itself authorizes them to do so (Art. 53).
5. No decision on the threat or use of force may be made
without the consent of the five permanent members (Art. 27 (3)).
6. The Charter of the UN might be amended only by the vote
and ratification of two thirds of member states including those of
all five permanent members (Art. 108). In the event of a conflict of
the obligations of the member states under the UN Charter and their
obligation under any other international agreement, the obligation
under the Charter prevails (Art. 103).
The founding fathers of the UN believed that this legal order
would actually work and that the UNSC would be able to use force
against an aggressor. They foresaw that the member states would make
available armed forces to the UNSC. What they had in mind was a land
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force of about 15 divisions (with 350-400 thousand troops), 750
fighter-bombers, 500 fighter planes, 6 aircraft carriers, 133
warships, and 14 submarines, which would have represented a truly
impressive force. A Military Staff Committee consisting of the Chiefs
of Staff of the permanent members or their representatives would take
control of the strategic command of these forces. This legal order
changed very little over the past half century. The Committee was set
up and held meetings for some time, but the special agreements
whereby member states would have made available their armed forces to
the UNSC were never concluded. Consequently, the joint armed forces
under the command of the Committee were never set up.
The law framed in 1945 contained rather simple and rigid rules.
According to this legal order, force could only be used in self-
defense or on authorization by the UNSC. The purpose of and reasons
for the use of force, or the enforcement of protected human values
were not distinguished. It did not authorize the use of armed force
by any state against another state for the protection of human
rights, the establishment of democratic institutions, the restoration
of the power of a government overthrown by a coup, or for any other
cause.
The Concept of Humanitarian Intervention
A number of experts believe, however, that international
practice, international customary law has already reinterpreted this
written law, specifically, through the increasing resort to the
principle of humanitarian intervention.5 This principle was in general
a valid reason for intervention in the 19th century. No one found
fault, not from a legal point of view anyway, with the use of force
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by a state or a group of states in another country for the protection
of some ethnic or religious community. European powers showed a
special preference for certain regions of the Ottoman Empire. For
instance, in the twenties and thirties their reason to be there was
to prevent the slaughter of Greek insurgents. Later, it was to
prevent the extermination of Christian Maronites by the Druses in
Lebanon. In the sixties they appeared on Crete, again to protect the
Greeks, and in the seventies they appeared—in alliance even with
Russia—in Bosnia-Herzegovina, Bulgaria, then Macedonia, once again to
protect Christians. According to the Turks (and historians), in these
cases the great powers were led not merely by noble intentions, they
also had other interests.6 All this is mostly indifferent from the
point of view of the present dilemma, since in the 19th century there
were no international legal norms prohibiting the launching of war
and, therefore, it did not really matter how an armed intervention
was justified. In the 20th century, on the other hand, the 1928
Kellogg-Briand Pact, and particularly the UN Charter later,
introduced the general prohibition of threat or use of force, but did
not mention humanitarian intervention as an exception. Interestingly
enough even those states who used force for similar aims did not
refer to their military operations as humanitarian intervention. 7
It was for good reason that humanitarian intervention was not
mentioned after the Second World War. The colonies that had newly won
their independence could hardly have had an interest in legalizing
foreign intervention in any form. For this reason, respect for
sovereignty remained the guiding principle of international law.
Peculiarly, the same thing determined usage in the „socialist camp.”
The Soviet Union had always protested sharply against intervention by
anyone in the internal affairs of the East-European countries under
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its rule on grounds of the protection of human rights, and so had
these countries, of course. Second and Third World states took every
opportunity to advocate the prohibition of intervention, and since
they constituted the majority in the UN General Assembly, they were
able to prevent the adoption of contrary resolutions. Western powers
did not support the idea of humanitarian intervention either, because
they clearly perceived that it was a double-edged weapon. It caused
them enough problems that the Soviet Union considered itself the
natural ally of colonial peoples and strove to be the one to help
them shake off their chains.
Many realize only now, after the Kosovo crisis, that there had
been some other humanitarian interventions carried out even before,
like in Somalia in 1991, in Rwanda in 1994 (although it was more a
rescue operation), Haiti in 1994, and perhaps in Albania in 1997.
These interventions took place with the authorization of the
UNSC. Others, however, had no legal authorization whatsoever. India’s
military intrusion into East Pakistan in 1971, Vietnamese
“liberation” of Cambodia in 1978, Tanzania’s intervention in Uganda
against Idi Amin Dada, and that of France in Central Africa in 1979,
the ECOWAS’ interference in Liberia, and, finally, Operation Provide
Comfort and the enforcement of a no fly zone in Northern and later in
Southern Iraq were mostly carried out on grounds of self-defense.
India declared that it was only defending its eastern borders, and
5 See e.g. Daniel Thürer, “Der Kosovo-Konflikt im Lichte des Völkerrechts: Vondrei – echten und scheinbaren – Dilemmata”, Archiv des Völkerrechts, Band 38, Heft1, March 2000; Catherine Guicherd, “International Law and the War in Kosovo”.Survival, vol. 4, no 2, Summer 1999.; Christopher Greenwood, “Kosovo and theHumanitarian Intervention”. The Guardian, 28 March 1999. In 1993, he held adifferent opinion (see note 8).6 “Humanitarian Intervention: Legal and Political Aspects.” Danish Instituteof International Affairs, Copenhagen, 1999. p. 79. 7 Neuhold, op. cit., p. 200.
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Vietnam said that it was doing the same on its western frontier.
Tanzania talked about provocations on its borders, and the French
said that they only wanted to put an end to Bokassa’s barbarities.
Human rights concerns were referred to in the last two actions only.
The statement issued by the heads of state and government of ECOWAS
was the first to mention the aim of “preventing the senseless
slaughter of the innocent civilian population and foreigners.”8 The
next to mention humanitarian considerations were the British and the
G-7 during the intervention in Iraq. At the same time, the Western
powers also referred to UNSC Resolution 688, which, however, did not
authorize the said states to carry out humanitarian intervention.
The foregoing has led a number of experts to conclude that a new
practice and with it a new customary law is emerging, which NATO
intervention in Kosovo only strengthened.9 The author of this paper
does not share this opinion. The principle of humanitarian
intervention cannot become part of a new customary law for a number
of reasons mentioned usually in the introductory chapters of
textbooks.10
First, because general prohibition of the use of force is
considered a peremptory international legal norm in both written law
(the Charter) and customary law, which means that it may be changed
only by the whole of the international community, represented by the
UN, not by NATO. That is to say, as long as the UN does not change
the more than half-century old international legal order—and, as it
8 Quoted by Greenwood, “Gibt es ein Recht auf Humanitäre Intervention?” EuropaArchiv, 48. Jahr, 4. Folge, February 1993, p. 97-98.9 See for example Peter W. Rodman, “The Fallout from Kosovo”, Foreign Affairs, Vol.78, No. 4, October 1999, p. 46.10 Apart from textbooks see Neuhold, op. cit., p. 200., Charney, op. cit., p. 836,Humanitarian Intervention, op. cit., p. 88-90.
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was mentioned, there is no chance whatever that it will—others may
not change it either.
Second, an intervention, whose executors make no reference to
the principle of humanitarian intervention, may not establish a new
customary law. Some of the above instances were designated as such,
others were not. Regarding Kosovo, every NATO politician spoke about
human rights being at stake, but none of them mentioned strictly
taken humanitarian intervention as the legal basis for the
intervention. (Solana’s above cited letter was not published.)
Third, the so-called opinio juris, that is, the firm belief of
states that they want to establish a new customary legal norm, is
missing. Hanspeter Neuhold rightly says that the states concerned did
not recognize the emergence of a new practice and, consequently, of a
general customary legal norm.11 As long as the states executing the
intervention say that their practice establishes customary law while
others oppose this practice, a new customary law cannot come into
being. At that time there were many protests against the
interventions by India and Vietnam, less against the interventions by
Tanzania and France, but one cannot establish a general acceptance
even in the latter cases. The action against Iraq also met with
little disapproval, but not so the intervention in Yugoslavia.
International Legal Considerations and the Air Campaign
Foreign forces entered Somalia, Rwanda, Haiti, and Albania on
explicit authorization by the UNSC, and intervention in each case was
lawful under international law. But by the time of the Kosovo crisis
the American-Russian “honeymoon” was already over, and, as mentioned,
11 Neuhold, op. cit., p. 200.
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Moscow and Beijing no longer gave their blessing to draft resolutions
that authorized the use of force. Consequently, NATO acted without
authorization. According to the rules of international law, the
implementation of military measures against Yugoslavia would have
also required UNSC authorization. It is not by accident that the
Russian delegate stressed during the debate of Resolution 1199 that
although the Council took into consideration the implementation of
further measures, it made no decision on the use of force at that
stage. Moreover, the Russian and Chinese delegates declared on many
occasions that they would veto a UNSC resolution to that effect. The
argument that the purpose of NATO air strikes was to enforce the
provisions of UNSC Resolutions 1160 and 1199 was also unacceptable.
True, Yugoslavia violated the law when it did not comply with these
resolutions, but even this fact did not constitute a legal basis for
armed intervention by NATO. Solana’s argument that in view of the
possible veto the Atlantic Alliance had no choice but to launch the
air strikes, may be justifiable militarily and politically, but not
legally. There is no “third” way once the draft resolution
authorizing the use of force has been rejected by one or more
permanent members of the Security Council.
As regards regional framework, the Washington Treaty does not
authorize its member states either to disregard the rules laid down
in the UN Charter or the UNSC resolutions. On the contrary, the
Washington Treaty contains three references to the UN Charter.
Article 1 refers to Article 2(4) of the Charter on the prohibition of
threat or use of force. Article 5 on the obligation of collective
self-defense states that “any ... armed attack and all measures taken
as a result thereof shall be immediately reported to the Security
Council. Such measures shall be terminated when the Security Council
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has taken the measures necessary to restore and maintain
international peace and security.” Naturally, the UNSC could not be
expected, even back in 1949, to take over from NATO the direction of
defensive operations. It is unlikely that the decision on the self-
defense of NATO members would have been made had the Soviet delegate
been present, since the purpose of founding the Alliance was to
contain Soviet expansion. The above sentences are significant only
insofar as they are a testimonial that the founding fathers of NATO
pledged to respect the powers of the UNSC and that they did not
intend to leave the legal framework of the UN. Article 7 is even more
explicit when it states that the Washington Treaty “shall not be
interpreted as affecting, in any way, the rights and obligations
under the Charter, ... or the primary responsibility of the Security
Council for the maintenance of international peace and stability.”
It is another matter that international organizations have the
right to subsequently extend their powers subject to the approval of
their member states. In 1949, the founders of NATO were looking for
tools to face the Soviet military threat. The question did not even
arise that the Alliance might be required to carry out peacekeeping
or peacemaking operations. The extension of the powers of the
organization, its adjustment to a new historical and political
situation does not usually warrant the amendment of the charter of
international organizations. Subsequent decision by the member states
suffices, as in NATO’s case. Although the resolutions of and
statements made by the leading organs of the Alliance are political
and not legal documents, they describe the obligations its member
states have undertaken. The former Strategic Concept, which was
approved by the member states in 1991 after the collapse of the
bipolar system, did not extend the powers of NATO.12 In case of risks
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it simply referred to the consultations of the State parties under
Article 4 of the Washington Treaty, and to “co-ordination of their
efforts including responses to such risks.”13
This Strategic Concept did not yet explicitly contain the
extension of powers out of area, or the undertaking of non-Article 5
missions, but it did go beyond the powers provided by the Washington
Treaty. Further extension of powers was set forth in the declaration
of the NAC meeting held on 10-11 January 1994, when the heads of
state and government reaffirmed that they will “support, on a case by
case basis ... peacekeeping and other operations under the authority
of the Security Council or the responsibility of the OSCE.”14
According to this, NATO’s action in launching out of area peacemaking
and peacekeeping operations during the war in Bosnia was lawful even
according to its own norms. However, neither the Strategic Concept of
1991, nor the declaration in 1994 mentions that in a crisis situation
NATO can disregard the rules laid down in the UN Charter, and it is a
matter of fact that both the aforesaid were in force on 24 March 1999
when the air campaign commenced, as well as in October 1998, of
course, when ACTORD was issued. In both cases NATO made a decision
she was not empowered by its earlier resolutions to make.
The text of the new Strategic Concept of 1999 was finalized
during the air campaign, and accepted at the Washington Summit. At
this time some of the officials of the American administration wanted
to remedy the omissions by extending NATO’s powers to launching
military operations without UNSC authorization. Deputy Secretary of
12 The Alliance’s New Strategic Concept. Agreed by the Heads of State and Governmentparticipating in the meeting of the North Atlantic Council in Rome on 7-8November 1991, para 10.13 Ibid., para 13.14 Declaration of the Heads of State and Government participating in the meeting of the North AtlanticCouncil held at NATO Headquarters, Brussels, on 10-11 January 1994, para 7.
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State Strobe Talbott said in a Bonn speech that the changes in the
world have created new challenges for the Alliance that cannot be
disregarded. The authorization specified in Article 5 of the
Washington Treaty is no longer adequate for meeting these challenges
since it mentions only collective self-defense. He stated that with
the spread of weapons of mass destruction, the world, where terrorism
and ethnic conflicts prevail, can no longer be described in terms of
geopolitical categories of an East-West confrontation, nor can old
means of action be applied. “This means”, he said, “that as we
maintain our ability to defend the territorial integrity of all NATO
members, we also need forces, doctrines and communication assets that
will allow us, when necessary, to address the challenges of ethnic
strife and regional conflict that directly affect our security but
that lie beyond NATO territory—as we have done, and are doing, in the
Balkans. … [A] truly modernized Alliance should be able to cope
effectively with the all-too-modern challenges posed by the spread of
ballistic missiles and WMD. … [W]e must be careful not to subordinate
NATO to any other international body or compromise the integrity of
its command structure. … [T]he Alliance must reserve the right and
the freedom to act when its members, by consensus, deem it
necessary.”15
Observers were curious to see if the text of the new Strategic
Concept on the agenda at the Washington Summit would turn out as
Talbott sought, that is, would the 19 heads of state and government
endorse future military interventions without UNSC authorization. The
new concept adopted in April 1999—while discussing a number of times
the questions related to non-Article 5 missions—upheld the
obligations ensuing from the Charter of the United Nations.16
15 Quoted by Simma, op. cit., p. 14-15.
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1. It referred above all to Article 7 of the Washington Treaty,
according to which, the “Treaty does not affect, and shall not be
interpreted as affecting, in any way … the primary responsibility of
the UNSC for the maintenance of international peace and security”
(para 10).
2. It stated that “the Alliance will continue to … seek the
peaceful resolution of disputes as set out in the Charter of the
United Nations” (para 11).
3. It confirmed that the “UNSC has the primary responsibility for
the maintenance of international peace and security” (para 15).
4. It said that “NATO will seek … should a crisis arise, to
contribute to its effective management, consistent with international
law, including through the possibility of conducting non-Article 5
crisis response operations” (para 31).
5. Finally, NATO recalled its “offer, made in Brussels in 1994,
to support on a case-by-case basis … peacekeeping and other
operations under the authority of the UNSC” (para 31).
The 19 member states seemed to return to the international legal
order that existed prior to October 1998. The very clear references
to the UN Charter, the “primary responsibility” and “authorization”
of the UNSC, as well as the phrase “in harmony with international
law” seem to have decided the issue. The new Strategic Concept states
that in the future armed forces shall not be used without UNSC
authorization, except in case of collective self-defense.
However, not every participant at the Washington Summit
interpreted the text of the concept in this way. According to some
sources, it is highly unlikely that the Kosovo scenario would be
16 The Alliance’s Strategic Concept. Approved by the Heads of State and Governmentparticipating in the meeting of the North Atlantic Council in Washington DC on23 and 24 April 1999.
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repeated, but the possibility that NATO would be compelled again to
make a decision in an emergency situation without Russia’s and
China’s assent cannot be excluded. In spite of the—spoken or tacit—
Russian and Chinese agreement with UNSC Resolution 1244 terminating
the air campaign, their foreign policy will not change in the
foreseeable future, and, therefore, NATO may again have to face a
Russian or Chinese veto on some vital issues. In the course of
working out the Concept, there were serious debates between the
Americans and the Europeans about how they should express in the
final document their misgivings concerning the future behavior of the
two Eastern powers. The European member states were mostly of the
opinion that it would not be wise politically to include Talbott’s
ideas in the new Strategic Concept, and, eventually, the Americans
agreed. There was not much else they could have done, since in the
period immediately preceding the Summit, American diplomats were
trying to win the Russians to mediate between the two sides. In fact,
Viktor Chernomyrdin went to Belgrade for the first time on 22 April,
the day before the Washington Summit, to negotiate with Milosevic.
It’s easy to imagine the impact on Moscow’s behavior if it were
declared at the Summit that the unauthorized air campaign against
Yugoslavia does not constitute an exception to the rule (i.e., to
international legal order), but instead it may be interpreted as the
first manifestation of a strategy to be followed in the future.
Clearly, the American administration made a compromise with the
Europeans as far as the drafting of the document was concerned. But
the main question remained unresolved, nor could it have been
resolved conclusively.
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The United Nations and the Principle of Collective Security
Let us now turn to the third question: Is the present legal
order in compliance with the recent shape of international relations?
In order to answer this, further questions have to be asked: How did
the legal order operate during the Cold War and subsequently in the
nineties? Was the UNSC able to use its powers and guarantee the
enforcement of the legal order?
The answer is negative. The founding states of the UN had put
the UNSC in the focal point of a legal order which in practice—except
for the “honeymoon” years—was incapable of carrying out the aims laid
down in the Charter. First, because the Wilsonian idea of collective
security proved to be a misconception, second, the right to veto by
definition excluded the possibility that the five great powers,
standing on opposite sides in the Cold War, would vote against each
other’s interests in case of aggression.
Let us first examine the question of collective security. This
concept is a misconception because it started out from the following
erroneous assumptions:
a) „The states consider the maintenance of international peace and security the
primary and absolute objective of their foreign policy.” In other words, within the
framework of the UN “states [should] subordinate their own interests
to general or remote ones”, concludes Richard Betts.17 It is not at
all certain that with respect to the maintenance of international
peace and security all governments define their interests in the same
way. What one state considers the interest above all else of the
international community, may represent, say, a violation of the right
17 Richard Betts, “Systems for Peace or Causes of War?” International Security, vol.71, no. 1, Summer 1992, p. 12.
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to self-determination of peoples for another. As Josef Joffe
concluded, the system of collective security tends to “bipolarize in
the moment of truth, its members taking sides not against one single
aggressor, but lining up behind either of two combatants”.18 It is not
certain that they would be willing to do so even in case of identical
value judgments. Not to mention that though the maintenance of
international peace and security is a truly important state interest,
it is by far not the only one. The foreign policy of states is shaped
on the basis of rather complex interest and value systems.
b) “States are willing to change their allies in an international conflict according to
who is the virtual aggressor and who is the victim.” Thus, they should fight
sometimes against their own friends, which is hard to imagine.
History has shown that even ad hoc alliances are built upon other
interests and values. Earlier, some states frequently switched allies,
but every time they did their decision was preceded by very
comprehensive foreign policy analyses. Henry Kissinger wrote that
organizing according to the principle of collective security
undermines preparations to balance the power of troublesome states.
No arrangement would be more likely to create conditions in which one
nation can dominate. “For if everybody is allied with everybody,
nobody has a special relationship with anybody", he concluded.19
c) “The states always agree on who the aggressor is.” The history of UN shows
that agreement among the states was exceptional during the Cold War.
The probability of agreement may be greater in a more homogeneous
international system, but it is possible that the agreement would
fall through due to other political or economic considerations.
18 Josef Joffe, “Collective Security and the Future of Europe: Failed Dreamsand Dead End”. Survival, Spring 1992, p. 39.19 Henry A. Kissinger, “Germany, Neutrality and the ‘Security System’ Trap.”Washington Post, 15 April 1990, p. D7.
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Collective security, wrote Joffe, “is a pre-nuclear concept … Nuclear
weapons, however, cannot be summed like conventional armies of
yore ... As long as the aggressor commands an invulnerable second-
strike force, it can deter each and all with the threat of deadly
retaliation.”20
d) “The participants in a system will follow the same pattern of conduct as was established
at the time the system was set up.” In other words, the concept of collective
security—being politically neutral—will be applicable at all times,
even if the nature of international relations change in the meantime.
This is a rather unhistorical assumption and it is not true even in
the short run. If an important participant fails to meet its
obligations after the system is put into operation, the whole
security system will collapse. Richard Betts notes that “the first
test may kill the system if the design is flawed.”21
e) “The states participating in the system prepare in close military cooperation to take
action against anyone at anytime.” In other words, they behave as if they
formed a defensive coalition, otherwise they could not become a
deterrent force in the face of a potential aggressor. They should
hold joint military exercises, establish joint command, control and
communication systems, etc. The only problem is that the participants
in the system have no idea who will be the aggressor from among them.
Thus, no one knows “who will train with whom and draw up which battle
plans against which contingencies”, notes Joffe.22 On the basis of
similar considerations, Betts arrives at the conclusion that since
„the system is not oriented against a specific adversary, it does not
function continuously in peacetime.”23
20 Joffe, op. cit., p. 45-46.21 Betts, op. cit., p. 12.22 Joffe, op. cit., p. 43. 23 Betts, op. cit., p. 10.
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f) “The states insist on the maintenance of the status quo.” The concept of
collective security presupposes that the parties involved in
international relations would like to maintain the status quo that
existed at the time the system was set up and would change the
international order only by peaceful means. According to Betts, the
concept of collective security is too legalistic since it „honors the
status quo ante” regardless of whether it is advantageous or not from the
point of view of the international community.24 History has shown that
maintaining the status quo can only be a short-term objective. The
character of international order as it was established at one time
cannot be preserved in the long run. Paradoxically, the status quo is
constantly changing. As Betts says, the system of collective security
is “the least flexible [system] because it requires the most
extensive cooperation among independent states, according to the most
rigid rules, but offers the greatest potential power (everyone else
in the system against any defector)”.25 The worst case would be if the
system were to actually start working, because then it would
contribute to the spreading of wars. According to Hans Morgenthau,
“[T]he diplomacy of collective security must aim at transforming all
local conflicts into world conflicts ... since peace is supposed to
be indivisible. ... Thus a device intent on making war impossible
ends by making war universal.”26
It may be concluded that the system of collective security
exists only in formal logic, and remains unrealizable not only in the
bipolar order of the Cold War, but in any international order.
24 Betts, op. cit., p. 15.25 Betts, op. cit., p. 15.26 Hans J. Morgenthau, Politics Among Nations. Fifth ed., New York, Knopf, 1973, pp.411-412, as quoted by Betts, op. cit., p. 20.
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The Current International Legal Order As a Veto Order
As regards the stalemate caused by vetoes, originally, those who
drafted the UN Charter did not consider it a necessarily useless
idea. The above mentioned provision that would have allowed for joint
armed forces under the command of the Military Staff Committee proves
this. At the same time, the founders were familiar with some of the
features of the international system. For instance, they did not
presume that the states would give the maintenance of international
peace and security priority in their foreign policy. Furthermore,
they did not think that the states would choose their allies
depending on who was the aggressor in an international armed
conflict. This is why they chose the permanent members of the UNSC
from among the victors (or, one should say, why they elected
themselves as permanent members), and this is why they gave the
permanent members such rights as would allow for only a limited
operation of the system.
This is also the reason why it did not occur to them that the
great powers later switched their allies depending on who the
aggressor was. After all, it was the alliance of victors that the
founders had cast into an organization against the defeated states,
while guaranteeing the right of veto for themselves. Had there been
no agreement among them, the system would not have been made
operational. Nor did the founders assume that the states, regardless
of their concrete situation, would be prepared to use force against
an aggressor in every case of aggression. The right of veto and other
provisions in the Charter precluded this eventuality. That is, if a
great power disapproved of the use of force in general, it could
simply veto the draft resolution, and if, on the other hand, it
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wanted to only stay out of the action against the aggressor, it could
vote in favor of the draft resolution and do nothing, that is to
abstain from voting.
Up to 1990, whenever there was a conflict involving the five
great powers, the Soviet Union generally used its veto, while the
Western and pro-Western states mostly voted down the draft
resolutions that were contrary to their interests, though on rare
occasions the Western powers, too, were compelled to veto them.
Between 1945 and 1990, the UNSC was able to pass a resolution as
originally drafted in two cases only. One in the Korean war, which
did not really constitute an exception since the Soviet delegate—
protesting against the acceptance of Taipei as a representative of
China—was absent during the vote. The other concerned the UN
peacekeeping troops in the civil war in Congo, where ONUC actions led
to the killing of Lumumba and his aids causing serious disagreement
between the great powers, and, therefore, no real consensus existed
among them. Thus, the legal order laid down in the Charter did not
work between 1945 and 1990.
In every other case—if a resolution could be passed at all—the
UNSC, without identifying the states violating the law, called for a
general termination of military operations and the withdrawal of
troops. But it did not authorize the use of force against anyone.
Agreement with Moscow was reached only in the case of Rhodesia and
the Republic of South Africa, and even then it was limited to the
ordering of an embargo.27 “Breach of peace,” to use the term of the
Charter, was established in three cases only where the violators were
identified (the Palestinian war in 1948, the Falkland war in 1982,
27 The UNSC ordered a full economic embargo against Ian Smith’s white regime in1968, and an arms shipment embargo against the Republic of South Africa in1977.
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and the war between Iraq and Iran in 1987), without any real
consequences. Naturally, the draft resolutions condemning the
aggression against Hungary in 1956 and against Czechoslovakia in 1968
were vetoed by the Soviet Union, while other major armed conflicts or
wars (as the one in Vietnam) were either not put on the agenda, or
the UNSC issued merely recommendations.
Thus, in effect, the legal order laid down in the Charter did
not work between 1945 and 1990. This changed a few years later as a
result of Gorbachev’s foreign policy. The UNSC reacted swiftly and
successfully to the Iraqi aggression in 1990. In its Resolution 660,
the Council condemned the aggressor and ordered the withdrawal of
troops from the territory of Kuwait, and Resolution 678 authorized
“Member States co-operating with the Government of Kuwait ... to use
all necessary means ... to restore international peace and security
in the area”.28 This resolution made the launching of the military
operation possible. It was left to the member states to decide under
whose command they intended to place their armed forces, and how far
they were prepared to go—literally and geographically—in the course
of the counterattack. In Operation Desert Storm an ad hoc coalition was
formed under American leadership, which consisted of NATO members as
well as other, including Arab, states.
The decisions made during the Yugoslav war contained similar
arrangements and legal framework. The no-fly zones established over
Bosnia by UNSC Resolution 781 in October 1992 were not really
enforced (UNPROFOR had the task of monitoring compliance with the
prohibition). However, in Resolution 816, passed in March 1993, the
UNSC authorized the member states to implement the necessary measures
against those who violate the prohibition. It was an important new
28
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feature of the resolution that it authorized the implementation of
enforcement measures not only by the member states in general but
also by their “regional arrangements and institutions.” Since by this
time NATO was the only regional security organization in the world,
the resolution all but authorized NATO by name to influence the
future course of events.
Inadequacy of the Current International Legal Order
The above events led the Western powers to conclude that the
legal order established in 1945 once again did not function. For a
few years at the beginning of the nineties they could expect Russia
to support their peacemaking operations and China to at least not
veto the respective UNSC resolutions. But during the Bosnian war
Moscow’s readiness to cooperate ceased in this respect, and though a
compromise was reached in Albania’s case in 1997, it was, in fact, an
exception. In the course of their efforts to resolve simultaneously
the Iraqi and Kosovo crises they met with final and uncompromising
Russian opposition. Presumably, Moscow was firmly convinced that if
it did not emphasize the special Russian interests at every
opportunity and did not say “nyet” again in the UNSC, the world would
forget Russia and it would soon find itself among second class
powers. NATO expansion only increased Russian anxiety, which, from
Moscow’s point of view, was a challenge and in many ways a
humiliating step, and which it tried to obstruct with every means
available. When this proved unsuccessful, Russian politicians found
that they had no choice but to resort to saying “no” in advance to
draft resolutions submitted to the UNSC by the Western powers
concerning both Iraq and Kosovo. Strangely enough, it was Eurasia’s
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“sick man,” a state in an extremely grave economic, military, and
political situation, and lacking the necessary capability for
realizing its ambitions, that wanted to restore its status as a world
power. This is why its leaders turned to the cheapest solution.
Russia was the sole important state supporting Milosevic, constantly
encouraging the dictator to hold out on the Kosovo issue. In so doing
the Russian government caused immense damage not only to the West but
to Yugoslavia itself, since it deluded Milosevic about the prospects
and content of Russian “assistance.” Although the Russians knew
exactly that the aim of NATO’s threat of the use of force in October
1998 was to restore peace in Kosovo and not to launch a war against
Serbia. Milosevic might have taken the warning seriously had Russia
(and China) joined the Western powers which this time included France
as well. There was ample experience in the nineties as to what
language Milosevic understood. It is a very likely supposition that a
unanimous decision by the UNSC—with possibly China’s abstention—would
have been effective. Instead, in October 1998, Foreign Minister Igor
Ivanov talked about planned “aggression” against Serbia, the
violation of international law, and about Russia’s intention to send
arms to the victim of the aggression. No doubt, this directed world
attention to Moscow, but it is doubtful that it increased Russia’s
prestige at the time when it was just seeking food relief from the
European Union.
It was under these circumstances that in October 1998 NATO
arrived at the conclusion that it must break with the post-war
international legal order and, even without Russia’s (and China’s)
assent, threaten to use force unless peaceful conditions were
restored in Kosovo. When this brought no result, NATO started the air
campaign against Yugoslav targets.
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These decisions derived their political importance from the fact
that they were passed unanimously at first by the 16, then by the 19
member states of the Alliance. Unlike in the case of Iraq when only
two powers initiated action, in the case of Yugoslavia the decision
was made by the community of the world’s leading democratic states.
The decisions of the countries united in NATO could make history and
could change the world order—even if not the legal order.
Incidentally, this was not the only conflict since 1945 when
states acted without UNSC authorization. There are plenty of examples
both for politically illegitimate and legitimate acts. Russia’s legal
predecessor, the Soviet Union did not ask for UNSC authorization in
its threat to use force in 1948-49 during the Berlin Blockade, or in
the suppression of the 1956 Hungarian revolution and the 1968 Prague
Spring, or in 1979, in the case of Afghanistan. In 1951 China entered
the Korean war without UNSC authorization, then held the Quemoy and
Matsu islands under siege for a long time, and even now repeatedly
threatens to use force against Taiwan. Great Britain, France, and
Israel did not turn to the UNSC before attacking Egypt in 1956, the
United States did not ask for UNSC authorization when it sent troops
to Vietnam. At the same time, had the Americans waited for the UNSC’s
authorization, Khruschev would have been able to continue with the
deployment of nuclear missiles to Cuba in 1962, Iraq would have
successfully developed its nuclear arms (well before the Gulf War),
Bangladesh would be called East Pakistan, Pol Pot’s successors would
rule over the surviving Khmers in Cambodia, there would be yearly
memorial services held for the tortured victims of the Entebbe
hijacking, there would be Syrian guns on the Golan Heights firing at
Israeli territory below, assuming that there was still a State of
Israel.
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“Order” as it was conceived by the founding fathers of the
United Nations never existed in reality—except in the early nineties
during the Russian-American “honeymoon”. Therefore, though NATO’s
decisions may be analyzed from an international legal point of view,
it must be clear, as it was mentioned, that the norms of the present
international legal order cannot serve as the sole basis for ultimate
value judgments. It is another question that the leading NATO powers
also had to take into consideration the realities that evolved during
the course of the air campaign. After they discovered in the first
weeks of the strikes that the original plans could not be carried out
and the crisis resolved without Russia’s cooperation, the
participants of the Washington Summit returned—at least on paper—to
the present legal order. This is the reason why they accepted a
strategic concept which pledged to uphold the post-war international
legal order—inadequate as it is—and which did not foresee operations
such as were still being carried out by the Alliance at the time of
the Summit.
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