Academic journal article Vanderbilt Journal of Transnational Law

Anticipatory Humanitarian Intervention in Kosovo

Academic journal article Vanderbilt Journal of Transnational Law

Anticipatory Humanitarian Intervention in Kosovo

Article excerpt

I. INTRODUCTION

The intervention by the North Atlantic Treaty Organization (NATO) in Kosovo during the spring of 1999 aroused controversy at the time and still provokes questions about the legality of the action, its precedential effect, and procedures for developing new international law. The participants faced a legal and moral dilemma between international law prohibitions on the use of force and the goal of preventing or stopping widespread grave violations of international human rights. This commentary seeks to chart a course for the future in light of the current legal and moral environment.

Many individuals on all sides of the Kosovo crisis maintained the highest standards of law and morality. Regrettably, others, particularly political leaders, fell short of their moral or legal obligations or both. Of the latter, the leadership of the Federal Republic of Yugoslavia (FRY) headed by Slobodan Milosevic stands out. The FRY committed grave international crimes against the ethnic Albanians in Kosovo. However, both the ethnic Albanians and the Serbs in Kosovo engaged in aggressive and brutal actions against each other and both were at fault, legally and morally.(1) The Kosovo Liberation Army (KLA) has also committed terrorist and other brutal acts against the Yugoslav Serbs and the FRY forces. As for the United Nations, though perhaps not morally at fault, it did not address the Kosovo problem in a timely and effective manner, as is its responsibility.

Indisputably, the NATO intervention through its bombing campaign violated the U.N. Charter and international law. As a result, the intervention risked destabilizing the international rule of law that prohibits a state or group of states from intervening by the use of force in another state, absent authorization by the U.N. Security Council or a situation of self-defense. The NATO actions, regardless of how well-intentioned, constitute an unfortunate precedent for states to use force to suppress the commission of international crimes in other states--grounds that easily can be and have been abused to justify intervention for less laudable objectives. As now conceived, the so-called doctrine of humanitarian intervention can lead to an escalation of international violence, discord, and disorder and diminish protections of human rights worldwide. If current international law and organizations are inadequate to solve problems like the Kosovo situation, better rules of law and improved organizations might be developed to avoid these terrible risks and properly protect human rights.

II. U.N. CHARTER LAW AND GENERAL INTERNATIONAL LAW

Contemporary international law prohibits violations of human rights and humanitarian law committed by a state against its own citizens. These duties are owed erga omnes, to all the world. Every state is obliged to respond to those violations, individually and collectively, by the use of nonforcible actions and countermeasures. A variety of intergovernmental and nongovernmental organizations may also take part in combating such violations. The NATO actions in Kosovo, however, raise the question whether international law permits the use of force by foreign states, individually or collectively, to stop violations of international human rights and humanitarian law committed within a single state. The answer turns on U.N. Charter law and contemporary international law derived from it.

The Security Council was involved in the Kosovo matter for some time. It adopted three resolutions under Chapter VII of the Charter prior to the NATO bombing campaign.(2) These resolutions laid out a plan of action that authorized the Organization for Security and Co-operation in Europe (OSCE) to place an observer force, the Kosovo Verification Mission (KVM), in Kosovo to monitor the situation.(3) The resolutions also called upon the FRY, the KLA, and all other states and organizations to stop using force and called for a halt to violations of human rights. …

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