I have, as a Kosova Albanian, accepted the challenge of "defending" the legality of what I consider the most humanitarian and generous international act of the post-Second World War period: NATO's intervention in Kosova in 1999.
On the whole, I feel that the discussion surrounding this issue has been poisoned by hasty "revisionist scholarship," emanating from doctrinaire Serbophiles, nay-saying journalists, and former politicians and high officials with axes to grind. One need look no further than individuals in my new Canadian home, such as Mihailo Crnobrnja (former Yugoslav ambassador to the EC, now a scholar in Canada at McGill University); Richard Gwyn of the Toronto Star; and James Bisset, Canada's former ambassador to the Socialist Federative Republic of Yugoslavia.
For these men, discussion of NATO's intervention in Kosova principally takes one of two forms: denial of the truth to bolster their own national views, or denial of the truth in order to further their own personal ambitions. From my perspective, denying the legality of NATO intervention is advocating an evil, collaborating with the perpetrators who forced nearly two million human beings from their homes, killing as many as 10,000 and raping countless others.
Perhaps even more important, however, is that the answer to the question "What was the legal basis for NATO's intervention in Kosova" touches on issues far wider than the Serbo-Kosovan struggle.
At stake: the future of humanitarianism
What is at stake and at-issue are nothing less than the future of humanitarian intervention, its position in the hierarchy of international law and the relative impotence of the United Nations and its Security Council as global authorities for the preservation of peace and international law and order. This is a point on which many are in agreement, including the Kosova Albanian political leader Hashim Thaçi, who stated that questioning the legality of the NATO war against Serbia, over the issue of Kosova, is typical of the hypocrisy and inhumanity of revisionists, for "without NATO bombing, the world's shame would still have been going on in Kosova."
In the end, I feel that the debate is a political issues as much as it is a legal one for, unfortunately, as I illustrate in these pages, the legality of NATO intervention in Kosova is clear, although it represents a significant departure from international norms and laws as established during the Cold War and very early post-Cold War period.
NATO's actions in implementing Security Council Resolutions on Kosova not only hastened and implemented radical, necessary changes in international laws and norms of behaviour, but also validated a change in international consciousness brought about by the blood on the hands of the international community in the wake of its inaction at Srebrenica and in the Rwandan genocide. Indeed, NATO's actions validated the overthrow of the morally bankrupt policies which marked international policies in the decade that preceded it.
The major players in this political game are China and Russia, members of the "P5" or "Perm5," who, along with the United States, the United Kingdom and France, constitute the five permanent members of the UN Security Council. Russia and China have remained staunchly opposed to NATO intervention in the Balkans not on legal grounds, but for political reasons having to do with concerns about their own problem associated with sovereignty and ethnic minorities.
Together with Serbia and Iraq, they are the international community's biggest backers of the "absolute inviolability" of state sovereignty for the simple reason that they are the worst violators of international human rights laws. In concerted, premeditated cooperation, these nations campaign for the "status quo," or pre-1990, definition of international law and order, and of "respect" for the emasculated organizations of the United Nations and, in particular, the Security Council.
Why? Russia has its Chechnya, a war of questionable legality whose brutal tactics have been roundly condemned by the international community. China has its own human rights problems, ranging from repression of dissidents to the oppression of its northern Muslim minority, while Iraq continues to persecute its Kurdish minority at the same time as working to become a nuclear power.
The primary threat to the political ambitions of the "NATO nay sayers" is the present trend toward considering international human rights law as entailing erga omnes obligations, that is: obligations that states must respect in all circumstances, without any contractual expectation, or the requirement of reciprocity.
The third exception
International humanitarian and human rights law can already be considered a strong body of law allowing intervention on humanitarian grounds. There is no doubt that humanitarian intervention has become a third exception to the UN prohibition against "The threat or use of force against the territorial integrity or political independence of any state."
Thus, governments which are abusing internationally recognized provisions on state sovereignty, and certain Security Council members that are clearly abusing their veto power by blocking legitimate Security Council motions they perceive as being contrary to their own interests, are the losers in this game.
On the other side are NATO and other Western nations who, through their humanitarian intervention, have effectively implemented the spirit of the 1998 Security Council resolutions on Kosova, sending a strong message to the international community that the Security Council alone does not enjoy an absolute monopoly on the international use of force in specific legal instances in which moral and legal actions are blocked for purely political reasons.
Parallels with the SFRY
Somehow, the United Nations' Charter and, in particular, the Security Council structure, reminds me of the 1974 Constitution of the Socialist Federal Republic of Yugoslavia and the nature of the SFRY Presidency, particularly as they are based on similarly ambiguous and contradictory norms open to broad interpretation.
In the political sense, the Security Council is, as a political body, impotent and handicapped by politically-motivated vetoes by members of the P5, analogous to the former Yugoslav Presidency as it was constituted by eight representatives of equal units in the Federation. In practice, this allowed Serbia, in 1989, to strip the autonomy of two legally equal federal units, turning them into de facto colonies.
In practice, the presidents of Kosova and Vojvodina became merely nominal representatives of these two "equal" units at the Yugoslav presidency, while in fact their status in this political body was limited by their de facto status as puppets of the Serbian regime in Belgrade. Serbia also came to enjoy the vote of its satellite sister republic of Montenegro, whose leadership was removed by Milošević and his cronies, to be replaced by Serbian loyalists.
Serbia was thus granted a veto power legally and practically different, yet functionally similar, to that enjoyed by members of the P5 – and exercised on the same political bases as Russia and China.
Further functional similarities between the 1974 Yugoslav Constitution and the UN Charter are evident in their respective impacts on the innocents of the world. Just as the structural flaws of the Yugoslav Constitution merged with political currents to generate four Serbian wars in the 1990s, inconsistencies in the United Nations Charter allowed a lack of political will and general obstructionism by key members to translate into the massacres at Srebrenica and genocide in Rwanda.
Law, order and international politics
Finally, it is necessary to lay out some thoughts on the basics of international law and order. According to the renowned international law scholar I L M Shaw, "probably the first reaction upon an introduction to international law (order) is to question its legal equality." Clearly, this is the case with respect to debate on NATO's intervention in Kosova. Here, we see that views of international law and enforcement mechanisms are highly malleable and, indeed, subject to interpretation through almost strictly political lenses.
Consider, for example, Shaw's further analysis:
It is recalled that in practically every international dispute, both sides proclaim there adherence to the principles of the system, and declare that they are acting in accordance with its provisions. It is alleged, for example, that the other side has committed unprovoked aggression, and the only suitable reaction is to follow the dictates of the rules governing self-defense, or perhaps that the principles of self-determination have been ignored and the values of international law must be upheld.
International law has no legislature. True, there is the General Assembly of the United Nations, comprising delegates from all member-states, but its resolutions are not legally binding on anybody save for certain of the organs of the UN for certain purposes. There is no system of courts.
The International Court of Justice does exist at the Hague, but it can only decide cases when both sides agree, and it can not ensure that its decisions are complied with. It is important, but is only peripheral to the international community. Above all, there is no executive or governing entity. The Security Council of the UN, which was intended to have such a role in a sense, has been effectively constrained by the veto power of the five permanent members.
Thus, if there is no identifiable institution either to establish rules or clarify them, or see that those who break them are punished, how can what is called international law be law? Without a legislature, judiciary and executive, one cannot talk about a legal order.
Similarly, on the relationship between international law and international politics and policy, Shaw notes that, "it is clear that there can never be a complete separation between law and policy. No matter what theory of law or political philosophy is professed, the inextricable bonds linking law and politics must be recognized."
However, when one looks at the international legal scene, one finds that politics are much closer to the heart of the system, therefore the interplay of law and politics in world affairs is much more complex and difficult to unravel. It should thus hardly be surprising when Shaw notes that:
The function of the UN system in the preservation and restoration of world peace has not been a tremendous success, and is very far from being comprehensive. It constitutes merely an additional factor in international dispute management, and is one particularly subject to political pressures. The UN has played a minimal part in some of the major conflicts and disputes [which have arisen] since its inception.
A poor track record
In fact, since the United Nations was formed, there have been more than 160 major wars in the world. It was only five years after the end of war in Bosnia that the UN finally admitted its responsibility in failing to prevent the massacre of as many as 7500 Bosnian Muslims at the "Safe Area" of Srebrenica, admitting that the international body had been responsible for errors, misjudgement, and "an inability to recognize the scope of evil confronting us."
Certain states, especially Serbia, discovered this "weakness" in the international body and the recidivist Serbian government, with its "premiere" at Srebrenica, discovered the impotence of the UN when it so easily destroyed a UN "safe haven" in front of the world's television cameras. By handcuffing UN peacekeepers, Serbia humiliated the international community, to the joy of certain members of the UN Security Council, certain that the "traditional" ineffectiveness of this political body guaranteed their impunity.
In addition to the record of UN failures in Southeastern Europe, we must add the horrifying mass slaughter in Rwanda, and the murder of thousands of innocent civilians in East Timor - it is only then that the importance of NATO intervention to prevent genocide in Kosova can be understood in its full context.
Pro and contra
What follows, then is a documentary analysis, examining issues raised by pundits and scholars on all ideological sides of the debate, in order to help the reader reformulate his or her own preconceptions.
In order to provide my modest contribution to the analysis of this complicated international legal-political issue, and to help bring a more objective judgement to the issue of NATO intervention than has been provided by the recent wave of revisionist punditry, it is necessary to examine the two dominant opinions of those opposed to NATO intervention.
The first, and perhaps most widely-articulated, argument holds that NATO intervention in Kosova was illegal, as it by-passed the UN Security Council in not obtaining that body's approval. In this, they claim that the Security Council is the only international body competent to authorize intervention on humanitarian -or other- grounds.
In the second instance, many have argued that NATO's intervention was illegal as it constituted an attack on a sovereign state on the basis of that state's domestic problems, thereby violating its territorial integrity. This, they claim, stems from Articles 2 and 4 of the UN Charter, prohibiting the use of force against the territorial integrity or political independence of any state.
Open to interpretation
There are a wide variety of perspectives on what body may be competent to authorize an international intervention, particularly one involving the use of force. In a general sense, these are functions of the different political interests of the states in question, their power and position on the international stage, their understanding, respect and internalization of democratic values and human rights, individual nations' ideological perspectives and differences, and varying levels of respect and for the rule of international law and order.
To examine this problem, then, one should first begin with point one, particularly as it concerns the interests and political motivations of the parties to the conflict, including members of the Security Council, NATO nations and developing nations with complex domestic problems.
The most common "NATO nay-sayers" are not merely scholars with revisionist agendas, but rather totalitarian regimes such as Russia, China, Iraq, Libya and Serbia, as well as emerging states with complex domestic political situations involving irridenta and other entho/religious minority rights issues.
The role of national interests
Russia, for example, is still in a state of political and economic chaos, with large-scale dependence on financial support from western nations. As the still lingering war in Chechnya and spill-over into Dagestan have illustrated, the dissolution of the former Soviet Union may well not yet be completed, meaning Russia has domestic separatist issues with which to deal. These factors combine with Russia's efforts to redefine its global role to ensure that Russia has an almost "existential" interest in blocking many forms of Security Council resolutions through the exercise of its veto.
In the particular case of military action against rump Yugoslavia, Russia is motivated by concerns regarding its prestige as a world power; its need, given its dismal domestic human rights record, to prevent international action on human rights issues; and by its hundred-year-long (and largely unsuccessful) attempt to gain a strategic foothold in the Adriatic Sea through Serbia and Montenegro.
For its part, China not only has a dismal human rights record, ensuring it must remove humanitarian considerations from the field of possible motivators for international action, but also occupation/border issues and irridenta problems with Tibet, Thailand, and a population of roughly 60 million Muslims, predominantly on its northwestern borderlands, who present consistent challenges to Beijing's authority.
Next, Iraq is a totalitarian nation with one of the worst human rights records in the world, and seeks to enhance the primacy of state sovereignty not only to protect against this, but also as a result of its as-yet unsolved Kurdish minority problem. That Libya, long known in the international community as a pariah nation owing to its sponsorship in international terrorism, would have issues with an expansion of Western international law and order norms should hardly come as a surprise.
Furthermore, the Indian nation is faced with vast problems concerning domestic social unrest, minority issues, and seemingly perpetual clashes with Pakistan over the disputed Kashmiri territory - a factor complicated by its desire to keep international inspectors away from its newly-acquired nuclear capability.
Finally, then, there is Serbia, once a republic in the former Yugoslavia which in 1989 used force to suspend the autonomy of two formerly equal legal units of the Yugoslav state (Kosova and Vojvodina), and which has sparked four armed conflicts in the past decade. That Serbia is a kleptocratic state which is confirmed as harbouring at least 40 (and likely countless unconfirmed others) war crimes suspects would clearly militate against Serbian interest in allowing the universal enforcement of international humanitarian and human rights norms.
Strategically, then, this group has a complex but interlinked network of interests. First, they seek to minimize NATO's influence in the international arena by assailing its reputation and prestige with an eye toward creating internal cracks. Secondly, by occupying, or having in the past occupied, other nations and territories, they seek to represent those purely domestic issues, thereby invoking the UN Charter's provisions on the inviolability of state sovereignty in order to cover their actions. Finally, they work to prevent the rapid advancement and development of what I would call the "principle of humanitarian rights" in contrast with the Cold War era concept of the inviolability of state sovereignty.
The Kosovan perspective
From the perspective of Kosova Albanians both before, during, and after the action in question, NATO's intervention on behalf of those threatened with, and subject to, ethnic cleansing, was legal for a variety of reasons rooted in law and history.
Not only did it rectify an historical injustice committed by the Great Powers at the London Conference of 1913, in which Serbia was granted possession of the occupied territory of Kosova, but it recognized the declaration of sovereignty of the Kosovan people in 1943 and 1944, which was, in fact, backed by Yugoslav leader Josip Broz Tito.
At the Bujan Conference, Kosovan Partisan leaders came together to declare that they were supporting the Yugoslav Partisan struggle as it was the best means for the people of Kosova to enjoy some form of association with Albania proper.
At that time, both Tito and Edvard Kardelj acknowledged to Albanian President Enver Hoxha that "the best solution would be if Kosova were to be united with Albania, but because neither foreign nor domestic factors favour this, it must remain a compact province within the framework of Serbia" for the time-being.
Furthermore, the 1974 Constitution of the Socialist Federal Republic of Yugoslavia constituted Kosova as one of eight federal units –including rights to judicial and legislative autonomy and representation at the federal level independent of Serbian authorities– making it a Republic in everything but name, a status illegally revoked by Serbia with the connivance of federal politicians fearful of Serbian disruption.
These, however, were not the only historical injustices NATO rectified. It also did away with the speculative and unfairly unilateral decision of the Badinter Commission of 1991, which paved the road to international recognition for only the six equal federal units (the Republics), and the West's negligence in leaving humanitarian treatment for Kosova out of the Dayton Peace Accords. Both actions had the effect of formalizing the illegal 1989 annexation of Kosova and Vojvodina, in many respects repeating the outcome of 1913's London Conference.
Furthermore, NATO intervention was a long-delayed, if not tacit, recognition that the people of Kosova had, in fact, spoken overwhelmingly of their desire for freedom and autonomy within Serbia, first through the Parliament of Kosova's proclamation of independence in 1991 - which was ratified by an overwhelming majority of Kosovars - and the subsequent free and fair presidential election of Dr Ibrahim Rugova.
NATO intervention was, furthermore, legalized on the basis of international instruments and declarations. In the first instance, there is the 1948 United Nations Declaration on Human Rights, which not only bound nations to international norms and standards, but also imposed a duty to take measures to enforce its principles. To this, one might also add the 1949 Geneva Convention on international humanitarian law.
Democratic principles, also legally enshrined, contributed to the legal basis for intervention, particularly in a post-Cold War period that has seen the increasing primacy of the "human rights principle" over the inviolability of state sovereignty – as legal scholars and politicians the world over have recognized. Here, then, one cannot doubt the legitimacy of NATO as an internationally recognized and accepted alliance of 19 democratic nations. All 19 are not only members of the OSCE: their domestic political systems are based on the rule of law.
To this basis, one must also add legal instruments including the absolute internationalisation of the Kosova question by UN Security Council Resolutions 1160, 1199 and 1203 - the very resolutions that NATO intervention enforced. The Security Council had only the humanitarian will to condemn Serbia's illegal actions in Kosova, but not the fortitude to ensure that words were translated into actions. But in their legal findings under 1160, 1199 and 1203, they provided the final legal basis for intervention.
The United States, as the leading NATO power, fully understood many of these points. In a letter dated 23 March 2000 to Trent Lott, the Republican Senate Majority Leader, US Presidential National Security Advisor Sandy Berger "justified going to war on the grounds that Serbian strongman Slobodan Milošević was a repeat offender under international law, and a direct threat to the security" of Southeastern Europe.
"It is important to note," he wrote, "that... Milošević initiated an aggressive war against the independent nation of Croatia in 1991; against the independent nation of Bosnia-Hercegovina in 1992; and is currently engaged in widespread repression of Kosova, whose constitutional guarantees of autonomy he unilaterally abrogated in 1989. Arguments based on Serbian 'sovereignty,'" he concluded, "are undercut by history."
Thus, the intervention of the North Atlantic Treaty Organization may only be seen as being illegal if the international community neglects the historical facts and legal and political declarations of the Kosova Albanian peoples through 1989 and, particularly, thereafter following the revocation of autonomy; and if it recognizes Serbia and Montenegro as the legal, international continuation of the former Yugoslavia.
Intervention may also be deemed illegal if one accepts that the repression of –and ethnic cleansing operations against– the people of Kosova is a legitimate domestic operation by the FRY as a sovereign nation-state; and, finally, accepts and perpetuates the irresponsible usage of the term "civil war" in the context of Kosova, instead of clearly labeling the conflict in question as an overt act of aggression by Serbia against the Kosovan people under Chapter VII, article 39 of the United Nations Charter.
As in the case of Bosnia, legal grounds for intervention were clear, and the international community appears to have internalized at least some of the lessons paid for in the blood of Bosnian people.
Fatmir Zajmi, 3 July 2000
Fatmir Zajmi is a lawyer and analyst based in Fredericton, New Brunswick, Canada and in Priština, Kosovo. Before and during the war in Kosovo, he served with the Organization for Security and Co-operation's Kosovo Diplomatic Observer Mission and later with the Canadian Embassy's field staff in Macedonia.
Photo Credit: Courtesy of NATO
This article is derived from a longer paper discussing legal perspectives on NATO intervention in Kosova, the full version of which is available from the author. It is respectfully dedicated to the memory of my uncle, Mr Fehmi Agani, an unfinished symphony who served his people and was cowardly executed by Serbian security forces so that others might go free, and to my father, who has always shone the light of wisdom on my ignorance.