NATO'S Intervention in Kosovo: The Legal Case for Violating Yugoslavia's National Sovereignty in the Absence of Security Council Approval
Alexander, Klinton W., Houston Journal of International Law
If a tyrant ... practises atrocities towards his subjects, which no just man can approve, the right of human social connection is not cut off in such a case.... [I]t would not follow that others may not take up arms for them.(1)
Since the end of the Cold War, military intervention in the internal affairs of a sovereign state aimed at protecting civilians from wholesale slaughter by their own government has become the norm rather than the exception in international relations. The senseless murder of civilians in Iraq, Somalia, Haiti, Yugoslavia, and East Timor has prompted the United Nations to assume a more active role in preventing human rights abuses and preserving order around the globe. The effect of this trend in favor of humanitarian intervention has been to undermine one of the basic tenets upon which the post-World War I international order has been built: the principle of national sovereignty. According to United Nations Secretary General Kofi Annan, countries that have resisted international intervention will no longer be able to hide behind protestations of national sovereignty when they flagrantly violate the rights of citizens.(2) "Nothing in the Charter," he says, "precludes a recognition that there are rights beyond borders."(3)
The latest example of the erosion of national sovereignty in international relations was NATO's intervention in Kosovo last spring. Kosovo, a province of Yugoslavia, had for years been a "powder keg" waiting to explode in the Balkans. Kosovo's majority ethnic Albanian population resented Serbian control over the province as well as Serbian President Slobodan Milosevic's refusal to grant them their independence.(4) Between February 1998 and March 1999, ethnic tension and violence in Kosovo surged dramatically, resulting in the death or forced expulsion of thousands of ethnic Albanian civilians.(5) Faced with a looming humanitarian disaster in the Balkans, U.S. President Bill Clinton and NATO Secretary General Javier Solana ordered NATO to launch airstrikes against Yugoslavia to restore order and prevent Serb forces from inflicting further harm on the Kosovar population.(6) The attack was the first uninvited offensive against a sovereign nation by NATO in its fifty year history.(7) After seventy-nine days of bombing Serbian military positions, supply lines, communications facilities, and government buildings throughout Yugoslavia, the government in Belgrade finally agreed to the terms of a settlement proposed by the NATO powers, which provides autonomy for the ethnic Albanian population of Kosovo and the deployment of a force of 28,000 NATO peacekeepers in the province.(8) According to President Clinton, "Aggression against an innocent people has been contained...."(9)
The decision by the United States and NATO to intervene in Kosovo for humanitarian purposes is part of an emerging norm in international law. This norm permits armed intervention in the internal affairs of a nation if the aim is to protect civilians from being slaughtered or displaced from their homes. The increased number of humanitarian interventions over the past few decades, some authorized by the Security Council, have challenged the old notion of national sovereignty as inviolable. What was once regarded as an almost absolute right to govern freely within one's own borders has gradually been eroded by the idea that certain governmental policies that violate citizens' basic human rights will not be tolerated by the international community.
This Article examines the recent decision by the United States and its NATO allies to intervene in Kosovo and attempts to explain the implications of this decision in terms of the growing clash between the principles of national sovereignty and humanitarian intervention in international law. Specifically, this paper will focus on the rise of humanitarian intervention as a recognized exception to the principle of national sovereignty embodied in Article 2 of the U. …