Intervention In Kosovo: Matters Of Legality

Introduction

NATO‘s intervention in Kosovo and the following events generated numerous questionable matters including moral foundations for the attack, correctness of use of force, acceptability of humanitarian intervention under international law etc. Defining humanitarian intervention is problematic and it‘s implementation is contentious. There is an emerging debate as to how applying certain criteria to humanitarian intervention might help to increase it‘s chances for success and secure support for such interventions. Moreover, Kosovo events represent an example of unilateral humanitarian intervention without UN approval.

Few problems in international affairs have fascinated so many writers as the problem of humanitarian intervention. Discussions have always focused on the fundamentalists and defenders of a right to intervene on humanitarian grounds, with the latter approach being on the increase now. Special attention in these studies is naturally paid to interference in Kosovo, as the first example of “pure” unauthorized humanitarian intervention.

This paper studies some legal issues concerning events in Kosovo and attempts to evaluate them from the point of view of the modern international law. The main point is to clarify a modern definition of humanitarian intervention, trace the changes of this definition between 1998 and 2005 and to show, whether NATO‘s intervention to Yugoslavia can be called humanitarian.

Factual background

The roots of the Kosovo conflict origin from 1389, when the Turks conquered Kosovo and brought the region under the domination of the Ottoman Empire. During the 500 years long Turkish domination the Christian Orthodox Serbs moved out and the Albanian Muslims moved in, constituting at present almost 90% of the population of about 1.8 million inhabitants[1].

After foundation of an independent state of Yugoslavia, following the collapse of the Ottoman Empire as a result the I World War, the Kosovan Muslim Albanians became one of three major ethnic groups of the country, also including Orthodox Serbs and Catholic Croats. The Nazis invaded Yugoslavia in 1941, defeating the Serbs, and after the World War II, a communist leader Marshal Tito took control over Yugoslavia. Under Tito’s leadership, the Federal People’s Republic of Yugoslavia (FPRY), consisting of six republics (Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia) and two autonomous regions (Kosovo and Vojvodina), managed to resist the forces of political ethnic dissension. Soon after the death of Tito, however, and the general collapse of Communism in Eastern Europe, the present conflict resulting in the break-up of Yugoslavia took hold.

The province of Kosovo itself enjoyed relative autonomy since 1974, but in 1989 the Serbian government under the leadership of Slobodan Milosevic unilaterally revoked the autonomy, and crashed the demonstrations that followed. In July 1990, after a referendum in Serbia, the Serbian government dismissed all Albanian political institutions in Kosovo, and began a systematic policy of ridding Kosovo of its Albanian heritage and promoting Serbian nationalism. In response, Kosovo’s political leaders created a shadow government,, approved on September 7, 1990 a constitution making Kosovo a republic within Yugoslavia, declared on October 19, 1991 Kosovo to be an “independent” nation and on May 24, 1992 conducted popular elections, electing a pacifist leader Ibrahim Rugova,  as president of Kosovo.

This course of events in Kosovo had an enormous deleterious effect on the Yugoslav Republics, fearful of domination by Serbia. On September 27, 1990, the Slovenian parliament declared that it would no longer apply federal legislation within the Republic of Slovenia, and set in motion a series of events that led to the dissolution of the FPRY. The break-up led to the emergence of independent Republics of Slovenia, Croatia, Macedonia, and Bosnia-Herzegovina, and a smaller Yugoslav federation comprising Serbia and Montenegro that included the former autonomous provinces of Kosovo and Vojvodina.

The struggle for independence from Yugoslavia, however, was not without bloodshed. Hostilities spread from Slovenia to Croatia and then to Bosnia-Herzegovina, during which the federal Serbian forces aligned with Serb minorities in Croatia and Bosnia-Herzegovina fought to retain or gain control. The policy of “ethnic cleansing”, or the systematic removal of members of one ethnic group by another in an attempt to change the ethnic mix of the territory, was born during this struggle to gain control.

Although all sides committed atrocities, Bosnian Serbs allegedly committed most of the reported abuses including rape, murder, and starvation. One report estimated that by the end of 1992, Serb forces had killed as many as 200,000 Bosnian Muslims or almost 10% of the Muslim population, and millions of refugees, amounting to as much as two-thirds of the total population, had been driven from their homes[2].

In 1992 the Republics of Slovenia, Croatia and Bosnia-Herzegovina became UN-members. On October 6 1992 the UN Security Council voted unanimously to establish a war-crimes commission to collect evidence of human rights violations in the former Yugoslavia. The creation of a tribunal to try the cases followed suit in late 1993. Nonetheless, hostilities continued in Bosnia-Herzegovina until the Dayton accords of 1995 ended the war in Bosnia[3].

Simultaneously with the above-named events, a return process happened since 1991, when Kosovo Liberation Army (KLA) was created. The fraction originated from a group of former-political prisoners and expatriates. The KLA found its numbers in the youth of the Albanian nation, plentiful due to a 70% unemployment rate and a population with nearly two-thirds under the age of thirty. Unlike their parents, who had supported the pacifism of Rugova, these youth had become disenchanted and saw no true option short of militancy and armed self-protection[4].

The KLA got it‘s first opportunity to procure significant quantities of weapons in 1997, when law and order in the neighboring state of Albania collapsed in the wake of a financial scandal and threw its armories open. By March 1998, the KLA had organized several bombings of Serbian targets. The ranks of KLA that numbered only a few hundred swelled, and the KLA found itself swept along by an uprising that it tried to control,  and by July 1998 controlled roughly one third of the Kosovo territory. The Serbian counter attack in the summer of 1998 sent 250,000 Albanian Kosovars fleeing for their lives while the KLA retreated into the hills.

Shocked by the Kosovo events, NATO threatened to bomb Serbia unless it stopped its offensive. In October 1998 Richard Holbrooke, the American special envoy and architect of the Dayton accords, succeeded in getting Slobodan Milosevic, the Yugoslav president, to agree to reduce his forces in Kosovo and accept the presence of a “verification force” from the Organization for Security and Cooperation in Europe (OSCE) that includes NATO members and Russia among others. The deal, however, failed to produce peace as the Serbs and the KLA continued struggling for advantage on the ground.

In February 1999 the Rambouillet negotiations outside Paris led to a deal. Kosovo was to remain a part of Serbia but run its own affairs, while providing safeguards for the Serbian minority, and that the deal and peace in Kosovo would be guaranteed by a NATO led force of up to 30,000 soldiers. After much wrangling and arm twisting the Kosovar Albanians, although apprehensive, accepted the deal. Slobodan Milosevic, however, refused to initial the deal and continued his offensive in Kosovo. NATO reiterated its threat to use force but Milosevic remained adamant[5].

On March 24, 1999, nine NATO members started an eleven week continuous bombing campaign against Serbia, accompanied by accidents and scandals such as accidental bombing of the Chinese embassy in Beograd. KLA, meanwhile, provided invaluable ground force against Serbian troops, with its number inflating by returning Albanian refugees. By June, after seventy-two days of air and ground strikes, Milosevic finally agreed to the peace plan, and troops began evacuating Kosovo.

According to Javier Solana, former Secretary General for the North Atlantic Treaty Organization, NATO achieved all of its goals. Most importantly, no Serbian forces remained in Kosovo, and, roughly, one million Albanians were able to return safely to their homes. NATO peacekeeping forces are now located in the area, and supporting a UN civil administration in comprehensive rebuilding of the region and establishing a viable political and economic order[6].

Acceptability of Humanitarian Intervention in the International Law

Under a general rule, accepted in international law, wars are recognized to be illegal. It is provided, that all members of the United Nations are to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. As this rule is a part of international customary law, it is obligatory to all the States, and not only UN-members. The second general principle, without which international law is impossible is a principle of State‘s sovereignty and sovereign equity of all the States[7].

Both of those principles, as well as the principle of non-interference to the internal affairs of an independent State appear to be violated by the NATO during the Yugoslavian campaign. But, on the other hand, the 1948 Universal Declaration of Human Rights goes further than the UN charter, linking for human rights to the maintenance of international peace. A number of scholars consider it to be a State‘s obligation to comply with those rights[8], although the binding force of such an obligation appears to be vague.

The idea that human rights can be a legitimating reason for the instrumental use of violence has been very slow to emerge, vehemently contested, and sometimes denied even by intervening states. Critical analysis of Court decisions, international instruments and researches in the field of international law conducted before 1998 shows that before intervention in Kosovo the prevailing approach to the problem was the one, considered by International Court of Justice in the case Nicaragua vs. USA that the use of force can not be a pertinent mean to ensure respect to human rights. Such interference required an agreement of the UN Security Council[9].

After the Kosovo events, however, humanitarian intervention seems to become a new justification for military action. The term “humanitarian” itself comprises an entire spectrum of actions, seeking to promote the well being of individuals, improve their status or protect human rights. And so, humanitarian intervention is a threat of use of force or use of force by a state or a group of states or international organization, primarily for the purposes of protecting the nationals of a target state from widespread deprivations of internationally recognized human rights[10].

Another applicable definition speaks of the humanitarian intervention as of an armed intervention in another state, without the agreement of that state, to address a humanitarian disaster or a threat thereof, in particular caused by grave and large-scale violations of fundamental human rights. This definition was adopted by a NATO seminar in Scheveningen on the topic in November 1999[11].

It is possible to take humanitarian intervention into account as a new tension in modern international law and relationship. However, concerning intervention in Kosovo, one needs to clarify three questions: 1) Is humanitarian intervention legally acceptable 2) What criteria defines an intervention as humanitarian 3) Does NATO intervention in Kosovo correspond to this criteria.

Presently, necessity for humanitarian intervention and thus the breach of principle of State‘s sovereignty is usually justified by the need in human rights protection. Even the United Nations Secretary General Kofi Annan has often referred to the incoherence between emerging human rights norms that seem to permit external intervention when gross human rights violations are perpetrated, and the cardinal principle of the inviolability of sovereign states embodied in the UN Charter.

On the theoretical level, most of the scholars now accept the “solidarist” approach to international politics that not only permits but also morally requires external military intervention in cases of supreme humanitarian emergencies (in contrast to the “pluralist” approach, which emanates, that states can agree only on a minimum set of rules of coexistence, in particular sovereignty and non-intervention). But, approving humanitarian intervention in general, they differ in their understanding of that how those interventions are conducted[12]. In order to clarify the matter it would be expedient to refer to the cases of humanitarian intervention that did happen in modern history. Some examples are discussed infra:

India‘s Intervention in East Pakistan: On December 16, 1971, India achieved victory in a war against Pakistan that resulted in the breakaway of East Pakistan or the province of Bengal from Pakistan, creating the independent state of Bangladesh. Before that Pakistan was a nation geographically and ethnically divided into two parts, East and West Pakistan. West Pakistanis dominated its political and economic life and Bengalis were relegated to “second class” citizens, and their demands for greater political voice and economic autonomy for East Pakistan had been ignored by successive Pakistani governments.

Elections held in November 1970 gave a majority in the Pakistani national assembly to the East Pakistanis. West Pakistan‘s reaction was swift and devastating: in March 1971 the West Pakistani army struck Dacca, a capital of East Pakistan, and unleashed a systematic reign of murder and terror that can be characterized as genocide. It is estimated, that at least one million people died and millions more fled the country to India, causing extreme hardship to India’s economy. After some border clashes with the Pakistani army, the Indian army invaded East Pakistan, formally recognizing Bangladesh as an independent state on December 6, 1971. The war ended on December 16, 1971 with the surrender of the Pakistani army, and in time India withdrew its forces from Bangladesh.

India‘s intervention, without doubt, can be called humanitarian. But still, it can not be considered as creating suitable precedent for unauthorized unilateral humanitarian intervention. First, the invasion was conducted by a single neighbouring State, which own interests have been impaired.  Secondly, it can be viewed as aid to East Pakistan seeking to exercise its right of self-determination. Thirdly, it can be interpreted as an act of “self-defense” that sought to stop and relieve the human and economic hardships created in India by the Pakistani actions in neighboring East Pakistan[13].

The Tanzanian Intervention in Uganda, 1979 In April 1979 the brutal rule of Idi Amin came to an end in Uganda as a result of Tanzania’s armed intervention and the domestic uprising against his regime. In October 1978, the Ugandan troops invaded Tanzanian territory and occupied the Kagera salient, a border area adjacent to the Kagera River.

President Nyerere of Tanzania considered the annexation tantamount to war, and, after failure of attempts of the third parties such as UN and Mali to settle the dispute, on November 15, 1979 the Tanzanian troops launched an offensive against Amin’s occupying army, crossing the Ugandan border. Ugandans welcomed the Tanzanian troops, joyous over the prospects of being freed from the brutal regime of Amin. On April 11 a combined force of 4000 Tanzanian and 3000 Ugandan rebels took Radio Kampala and announced that the tyrant Idi Amin was no longer in power.

Tanzania’s intervention is surely justified it as an act of self-defense taken in response to Uganda’s armed aggression against the territorial integrity of Tanzania. In the process, a combined force of Tanzanians and Ugandan rebels deposed Idi Amin, and Ugandans were liberated from his despotic rule. Nevertheless Tanzania‘s intervention can not be considered as purely humanitarian, for it‘s primary aim was the protection of own interests[14].

Intervention to Somali 1992. In 1991 Said Barre, who remained a president of Somali for 21 years has been removed from power, and this was the beginning of the civil struggle between tribal clans. Cliques, supporting president Ali Mahdi Mohhamed and general Mohhamed Farakh Aidid contested for power, leading to hunger and ruin in the country. Hundreds of thousands of Somalians left their homes, 5 million suffered from starvation. In May 1991 the southern part of Somali proclaimed itself an independent State Somaliland.

Despite of embargo on delivery of arms, established by the UN, the civil conflict went on with more then 15 fighting parties. Being unable even to protect the own humanitarian cargo with the existing peace-making forces, the UN finally decided that the growing scale of tragedy in Somali is a threat to international security. This was the first time when the UN admitted, that an internal conflict needs to be settled by an outside military activity and assumed responsibility for establishing peace and good order.

In December 1992 the Special Combined Forces, consisting of the units of 24 States, arrived to Somali. In March 1993 the leaders of 15 political movements agreed to meet in Adis-Abeba to start a procedure of national reconciliation.  Soon after this success, however, military operations renewed, also causing contraventions between the allied forces. After sensitive loses, the US announced of the withdrawing their troops from Somali in March 1994. The same was done by Belgium, France and Sweden. In March 1995 the UN forces left Somali[15].

The intervention to Somali pursued humanitarian purposes and was conducted by a group of extraneous States. But even then, it hardly creates a suitable precedent for intervention to Kosovo due to approval by the UN, which was never received in Kosovo.

All of the examined cases bear some features of humanitarian intervention. However, intervention in Kosovo still remains without a precedent due to unique combination of it‘s factors, including non-acceptance by the UN. Nevertheless, the objectives of interference in Kosovo can be clearly identified as humanitarian, and so, if the whole action is not recognized as such, it would lose it‘s sense.  Thus, some special criteria is necessary for the definition of humanitarian intervention. Infra the Yugoslavian campaign is studied using the criteria, proposed by the Centre for Strategic Studies of Victoria University (Wellington, New Zealand).

1. The Threat of occurrence of grave and large-scale violation of human rights, or actual violation – surely happened in Yugoslavia. The fact is recognized by the UN and the neghbouring States.
2. The government of the state is unwilling or unable to take remedial action – in the case of Kosovo the government itself supported violations.
3. There is clear urgency – did existed, for the action‘s of Milosevic‘s government threatened to eliminate Albanian minority in a short time span.
4. The use of force should be the last resort – both UN sanctions and negotiation did not stop ethnic discriminations.
5. The purpose is clearly explained to publics and international community – the purpose was really well-known to the public due the mass-media and earlier investigations.
6. The purpose is limited to stopping the human rights abuses – the NATO troops in Kosovo have not yet conducted any actions that would identify the purposes other than human rights protection.
7. The action is supported by those for whom it is intended – active support of Albanians did take place.
8. There is support of regional states – observance of this criteria remains questionable.
9. There should be a high probability of success – at the present time the intervention seems to achieve it‘s primary goals.
10. There should be a mapped-out transition to postconflict peace building – questionable, especially regarding Serbian population of Kosovo.
11. The use of force should be proportionate to achieving these goals – observance of this criteria remains questionable, regarding civilian population casualties, use of missiles with depleted uranium, etc.
12. International law on the conduct of war should be followed during the action – questionable due to above-stated reasons.

One can easily notice, that the most essential criteria for humanitarian intervention were actually observed by NATO, although some violations took place during performance of intervention itself. The proposed criteria, however, lacks one important provision – approval of intervention by the UN, and thus by international community. Simple notification and clarification can hardly be considered sufficient enough. If UN authority were not required for humanitarian intervention then this would be an alteration to the present restrictions on the use of force and a major dilution of UN power[16].

The main objection against the necessity of UN approval is that UN would probably delay the answer. The intervention could even be vetoed by such UN-members as Russia or China, striving to ensure their own interests. This left NATO with the prospect of both allowing, and vicariously legitimizing a massive scale ethnic-cleansing campaign to take place in an area bordering its own region, or taking action against it. By this view, going to the Security Council and abiding by the letter of the UN Charter and NATO treaty would have probably meant another disaster along the lines of Bosnia.

Other critics of NATO’s actions argue that force should not have been used at all, regardless of legality. Generally, a ceasefire is offered at the best alternative, but this isn’t necessarily the case in all conflicts. The earlier UN Resolution 1199 and the Holbrook agreement had done nothing to end conflict between Albania and Serbia. Instead, ceasefires often merely put a temporary stop to the fighting, generally without any lasting settlements, so as it happened in Somali. In the end, this actually has an adverse affect because the halt allows both sides to rearm, recruit, and train for the next round, inherently extending the length and increasing the severity of the war.

In this particular case, such a result was definitely possible. The conflict in Kosovo was aggravated by the fact, that the region was the home for Albanians for a few hundred years, and at the same time an important historical and cultural landmark for the Serbians, for it was here, where the main battle with Ottomans took place.  Had the NATO not interfered, the mass ethnic conflict could proceed during the uncertain period of time[17].

One can state, that NATO‘s intervention in Kosovo should not be held up as a burgeoning norm in international law, but rather a distinct circumstance that required the organization to take an ethical, albeit politically risky measure in the effort to protect Kosovar Albanians from mass ethnic discrimination.  And from this point of view the intervention is justified.

Conclusion

It can be concluded, that the NATO‘s armed intervention in Kosovo was a humanitarian intervention without a precedent. Former cases of humanitarian intervention, such as India‘s intervention to Pakistan or UN intervention to Somali can not be considered suitable precedents due to the differences in aims and conditions.

The interference in Kosovo is illegal, if it is evaluated in the spirit of traditional international law. Even now that NATO‘s actions corresponded fully or partially to the criteria, defining humanitarian intervention as such, they still remain unjustified because of absence of UN mandate. Moreover, a dangerous precedent for armed invasion without UN approval is created.

Nevertheless, considering the growing importance of human rights protection, continuing civil and ethnical struggle and UN sluggishness, the intervention seems to be the only way for NATO to stop gross human rights violations near it‘s borders. Moreover, the UN Charter provides, that mass and grave impairment of human rights constitutes a threat to the global safety. Thus, the intervention is justified by the reasons of protection of global safety as a whole and concrete people‘s rights in particular.

References

1. N. Charter, June 26, 1945
2. Yash Aggarwal, On the Legality and Implications of NATO’s Intervention in Kosovo, 2003 http://www.icltd.org/aggarwal.htm (19 Apr. 2005)
3. Angela Gasparetti, Justification for the NATO Intervention in Kosovo: Political Science Department, Nebraska Wesleyan University, Fall 2003
4. Peter Malanczuk. Akehurst‘s Modern Introduction to International Law, London, Routledge, 1998
5. Humanitarian Intervention: Definitions and criteria, editor: Guy Wilson-Roberts, CSS Strategic Briefing Papers Volume 3: Part 1: June, 2002
6. Roberto Belloni, “Kosovo and Beyond: Is Humanitarian Intervention Transforming International Society?”, HUMAN RIGHTS & HUMAN WELFARE, VOLUME 2 : 1 : Center On Rights Development, Denver, 2002

[1] Yash Aggarwal, On the Legality and Implications of NATO’s Intervention in Kosovo, 2003 http://www.icltd.org/aggarwal.htm  (19 Apr. 2005)

[2] Angela Gasparetti, Justification for the NATO Intervention in Kosovo: Political Science Department, Nebraska Wesleyan University, Fall 2003

[3] Yash Aggarwal, Ibid

[4] Angela Gasparetti Ibid

[5] Yash Aggarwal, Ibid

[6] Angela Gasparetti Ibid

[7] See: UN Charter Art. 2

[8] Peter Malanczuk. Akehurst‘s Modern Introduction to International Law, London, Routledge, 1998 at page.- 297

[9] Peter Malanczuk Ibid. at Page 309

[10] Yash Aggarwal, Ibid

[11] Humanitarian Intervention: Definitions and criteria, editor: Guy Wilson-Roberts, CSS Strategic Briefing Papers Volume 3: Part 1: June, 2002

[12] Roberto Belloni, “Kosovo and Beyond: Is Humanitarian Intervention Transforming International Society?”, HUMAN RIGHTS & HUMAN WELFARE, VOLUME 2 : 1 : Center On Rights Development, Denver, 2002, at page 35

[13] Yash Aggarwal, Ibid

[14] Yash Aggarwal, Ibid

[15] Peter Malanczuk Ibid. at Page 546-549

[16] Humanitarian Intervention, Ibid

[17] Angela Gasparetti Ibid