2002 Kosovo-law-of-war

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,

Kosovo-law-of-war Valki

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

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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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2002 Kosovo-law-of-war

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