Nato Kosovo

Electronic copy available at: http://ssrn.
com/abstract=2434753
Le Conseil Atlantique du Canada
The Atlantic Council of Canada
Abstract
NATO's recent 79-day campaign
of airstrikes against the Federal Re-
public of Yugoslavia has sparked a
wide-ranging debate as to the legality
of such military action. NATO has
consistently justified its intervention
on humanitarian grounds, thus clearly
resorting to the controversial doctrine
of "humanitarian intervention".
The author argues that while
a conventional analysis of the pur-
ported right of unilateral humanitarian
intervention under international law
and of NATO's acts on the Kosovo
issue might lead some to the conclu-
sion that such acts were illegal (or at
best, of dubious legality), this fails to
take into account the fact that state
actors, particularly when acting in con-
cert, tend to influence the content of
international law itself. The author
suggests that the true significance of
NATO's forcible intervention in the
Kosovo crisis is that it sets a clear
precedent which may well crystallize
an emergent norm of customary inter-
national law permitting forcible inter-
vention by one or more states against
another on humanitarian grounds,
even without prior UN Security Council
authorization. While such a norm may
acquire universal status, it is also pos-
sible, in light of the regional concen-
tration of the primary actors involved
as well as important objections from
some quarters as to its legality, that it
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NATO's Humanitarian Intervention in Kosovo:
Making or Breaking International Law?
by
John H. Currie
Atlantic Council Paper 2/ 99
Atlantic Council Papers are specially
selected from those presented at confer-
ences of the Atlantic Council of Canada, or
of the international Atlantic Treaty Associa-
tion, of which the Atlantic Council of Canada
is a constituent member, on the basis of
their particular merit in helping either to clar-
ify international security issues impacting
upon Canada and the Atlantic Alliance, or to
advance the basis of international security
theory.
This paper contains the speaking
notes for Professor John H. Curries address
to the Annual Conference of the Atlantic
Council of Canada, "NATO and the Kosovo
Crisis: Coping with the Aftermath", Thurs-
day, November 18, 1999, Ottawa, Canada.
These speaking notes are a con-
densed and edited version of an article pre-
viously published by the author in [1998] 36
Canadian Yearbook of International Law.
John H.Currie is Assistant Professor,
Faculty of Law, Common Law Section, Univer-
sity of Ottawa.
The author wishes to acknowledge
with thanks the research assistance of Mr.
Cezary Fudali, LL.D. candidate, University of
Ottawa, and Mr. Vincent DeRose, LL.B.
(1999), University of Ottawa.
The author is also grateful to the At-
lantic Council of Canada for sponsoring the
author's attendance on a briefing tour of
NATO headquarters and installations in Oc-
tober, 1998.
Electronic copy available at: http://ssrn.com/abstract=2434753
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will acquire(at least in the first in-
stance) a local or regional character,
perhaps confined to the Euro-Atlantic
area.
La rcente campagne
d'oprations ariennes par l'OTAN
contre la Rpublique fdrale de
Yougoslavie ("RFY"), qui a dur 79
jours, a suscit un dbat vif quant la
lgalit d'une telle action militaire.
L'OTAN a systmatiquement fond
son intervention sur des considra-
tions humanitaires, ayant donc claire-
ment recours la doctrine controver-
se "d'intervention humanitaire".
L'auteur soutient que, tandis
qu'une analyse classique d'un pr-
tendu droit unilatral d'intervention
humanitaire en droit international
mnerait certains conclure que les
actes de l'OTAN sur la question du
Kosovo furent illgaux, une telle anal-
yse ne tient pas compte de l'influence
qu'ont les actes d'tats sur le contenu
mme du droit international, surtout
lorsque plusieurs tats agissent de
concert. L'auteur prtend d'ailleurs
que l'intervention arme de l'OTAN en
RFY pose un prcdent clair qui pour-
rait cristalliser une norme mergente
du droit international coutumier,
norme qui permettrait l'intervention
militaire par un ou plusieurs tats
pour des raisons humanitaires, mme
en l'absence d'autorisation pralable
du Conseil de scurit de l'ONU. Bien
qu'une telle norme pourrait atteindre
un caractre universel, il est gale-
ment possible, la lumire de la con-
centration rgionale des acteurs pri-
maires impliqus ainsi que des objec-
tions importantes de la part de cer-
tains tats-tiers, qu'elle demeurera du
moins en premier lieu) de caractre
local ou rgional, peut-tre limite
dans sa porte la rgion euro-
atlantique.
Introduction
On March 24, 1999, members of the
North Atlantic Treaty Organization ("NATO")
engaged in military action against a
sovereign state for the first time in the fifty-
year history of the Alliance.
1
Seventy-nine
days of sustained and widespread airstrikes
against mainly military targets in the Federal
Republic of Yugoslavia ("FRY") ensued, even-
tually culminating in a cease-fire and the
insertion into the Yugoslav province of
Kosovo of a UN-sanctioned, but NATO-led,
peacekeeping force.
Predictably, these events have
sparked a wide-ranging debate as to the
legality of NATO's actions. Particular
(although far from exclusive) attention has
been focused on the legality of the use of
force by the Alliance under the rubric of
so-called "humanitarian intervention".
2
It
would be fair to say, moreover, that the
majority of at least scholarly opinion con-
demns NATO's actions as inconsistent with
international law.
What I want to do today is suggest
that those who too readily dismiss this dra-
matic military intervention as a plain violation
of the UN Charter's general prohibition on
the unilateral use of force fail to bear in mind
a peculiar but crucial aspect of the interna-
tional legal system. In particular, they fail to
give due weight to the fact that international
law, which draws on customary practice for
much of its content, is generally impacted by
the consistent acts of an important cross-
section of its subjects.
3
In other words,
states acting as they have done in the case of
the NATO allies in the Balkans likely influence
the content of international law itself.
While a conventional analysis of
NATO's acts on the Kosovo issue might lead
some to conclude that such acts were illegal
(or at best, of dubious legality), I want to
suggest that this would be to miss the more
interesting point entirely.
4
In other words,
rather than examining the impact of the law
on NATO's actions, I think the more interest-
ing question is: What is the impact of NATO's
actions on the law? In my view, the true
significance of NATO's forcible intervention in
the Kosovo crisis is that it may set a clear
precedent which may well crystallize an emer-
gent norm of customary international law
permitting forcible intervention by one or
more states against another on humanitarian
grounds, even without prior UN Security
Council authorization. I want to illustrate this
possibility in two steps.
First, I want to review very briefly the
antecedents for a so-called right of forcible
intervention on humanitarian grounds. Sec-
ond, I wish to discuss the legal significance of
the Alliance's intervention in Kosovo and the
FRY in light of those antecedents and of the
events described earlier by Ambassador
Green.
5
The Antecedents of a Right of
Forcible Humanitarian Intervention
Pre-1945 Practice
State practice prior to World War II
evidenced a surprising frequency of invoca-
tion of the principle, particularly in light of
the political and military costs associated
therewith.
6
Scholarly opinion was similarly
characterized by a general endorsement of
the rule.
7
The Cold War Period (1945-1990)
However, following the Second World
War and the advent of the Charter of the
United Nations,

this seeming enthusiasm for
the existence of a right of unilateral military
intervention on humanitarian grounds largely
evaporated. The emphasis clearly shifted
from the necessity (and hence legality) of
unilateral uses of force in certain circum-
stances to institutionalized mechanisms of
collective response that would obviate such
need. To buttress such collective measures,
unilateral resort to force was generally out-
lawed.
8
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Thus the conventional approach to
the legality of a purported right to forcibly
intervene onto the territory of a sovereign
state in the name of humanitarian relief be-
came that such was likely a violation of article
2(4) of the Charter of the United Nations.
9
That article established as a fundamental
principle of international law
10
that states are
to refrain 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". A corollary provision, article
2(7), emphasized the sovereignty of the state
and the principle of non-intervention by stip-
ulating that nothing in the UN Charter autho-
rizes the United Nations "to intervene in mat-
ters which are essentially within the domestic
jurisdiction" of the state. UN General Assem-
bly Resolution 2625 emphasized that the
threat or use of force against the territorial
integrity or political independence of any
State "constitutes a violation of international
law and shall never be employed as a
means of settling international issues".
11
The
International Court of Justice itself had occa-
sion to emphasize the centrality in modern
international relations of the principle of non-
intervention by states into the domestic juris-
diction of other states.
12
State practice in the pre-1990 period
was generally consistent with the position
that there existed no right of unilateral,
forcible intervention on humanitarian
grounds.
13
Only on rare occasions did states
invoke humanitarian concerns as a justifica-
tion for their use of force against other
states.
14
In 1971, India invoked the concept
in defence of its military incursion into East
Pakistan (Bangladesh).
15
In 1979, Tanzania
similarly sought to justify its invasion of
Uganda.
16
Also in 1979, Vietnam invoked
humanitarian grounds in support of its mili-
tary actions against the territory of Cambo-
dia.
17
The American invasions of Grenada
(1983) and Panama (1989) were also, albeit
somewhat half-heartedly, justified on human
rights bases.
18
However, in all of these in-
stances the acting states also relied primarily
on an extended notion of self-defence under
article 51 of the UN Charter in defence of their
actions, or other justifications,
19
signaling a
lack of conviction (or opinio juris) as to the
sufficiency of the humanitarian intervention
defence.
20
In any event, most third-party
states either avoided endorsement of such
actions on the specific grounds of humanitar-
ian intervention, or rejected outright any such
justification.
21
Post Cold War Practice
Notwithstanding this preponderance
of opinion denying the legality of forcible
unilateral humanitarian intervention, the end
of the Cold War brought with it not only
renewed vigour in the Security Council but
also a seemingly greater willingness on the
part of commentators and states to invoke
humanitarian concerns as a justification for
the use of force.
22
By far the more favoured
form of humanitarian intervention thus coun-
tenanced was multilateral intervention under
UN auspices, relying upon an extended un-
derstanding of the Security Council's Chapter
VII powers and a liberal reading of what con-
stituted a threat to international peace and
security.
23
In the wake of the Gulf War, for exam-
ple, was the massive repression, at the hands
of the Iraqi central authorities, of its rebellious
Kurdish populations in northern Iraq in
1991.
24
The United Nations Security Council,
reflecting divided international opinion on
whether this constituted a domestic situation
or a matter threatening international peace
and security, ultimately adopted Resolution
688
25
condemning and demanding an end to
the Iraqi repression. Significantly, while the
resolution described the repression and re-
sulting humanitarian crisis as posing a threat
to international peace and security, it made
no formal reference to Chapter VII.
26
Also
significantly, no enforcement authority pur-
suant to Chapter VII was included in the reso-
lution.
27
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Notwithstanding the lack of Security
Council sanction of such measures, the
United States, the United Kingdom and
France sent troops to northern Iraq to estab-
lish "safe havens" for Kurdish refugees.
28
The
allies further established and enforced "no-
fly" zones in the north and subsequently in
the south, thereby interdicting Iraqi military
aircraft from the protected areas.
29
These
actions were justified on a number of bases.
The allies interpreted Resolution 688 very
broadly as impliedly authorizing the use of
military forces with a humanitarian assistance
mission.
30
Significantly, however, the allies
also invoked the justification of humanitarian
intervention as legalizing their forcible inter-
vention into Iraq.
31
In 1990, civil war in Liberia threat-
ened to plunge that state into anarchy. In
response, the Economic Community of West
African States ("ECOWAS"),
32
led primarily by
Nigeria, intervened militarily on August 27,
1990 in order to halt the "wanton destruction
of human life and property ... [and] ... massive
damage ... being caused by the armed con-
flict to the stability and survival of the entire
Liberian nation."
33
At the time of this action
ECOWAS enjoyed no authorization from the
Security Council under Chapters VII or VIII,
although the intervention met with the appar-
ent support or at least acquiescence of the
international community.
34
The only basis
put forward for such intervention, was, more-
over, humanitarian. Ultimately the UN Secu-
rity Council invoked its Chapter VII powers
and retroactively legitimated the ECOWAS op-
eration.
35
Given such Security Council autho-
rization, the ECOWAS intervention may be of
limited precedent value when considering the
emergence of a right of unilateral humanitar-
ian intervention. Further, while the initial and
widely supported ECOWAS intervention was
predicated upon the need for humanitarian
intervention, again its precedent value in this
regard may be marred by the virtual absence
of any de facto effective governmental au-
thority in Liberia at the time of the interven-
tion. Nevertheless it has been argued that
the ECOWAS intervention in Liberia, at least
prior to being sanctioned by the Security
Council, indeed represented a significant
instance of state practice.
36
A similar case is the intervention in
Somalia pursuant to Security Council Reso-
lution 794 (1992), which authorized mem-
ber states to "use all necessary means to
establish as soon as possible a secure envi-
ronment for humanitarian relief operations"
pursuant to Chapter VII.
37
However, being
a UN mandated intervention, it offers little
support to the existence of a correlative
right in member states acting without Chap-
ter VII authorization to engage in similar
humanitarian interventions.
The same can be said for Rwanda.
Similarly, events following upon the
dissolution of Yugoslavia itself are also dis-
appointing in terms of providing a solid
precedent for a right of unilateral forcible
humanitarian intervention. The principal
difficulty with the Yugoslav precedent is to
distinguish its internal from international
aspects. In fact, most of the humanitarian
or other intervention in the Yugoslav con-
flict (until, it will be argued, Kosovo), is
plainly explicable either in terms of interna-
tional aggression and Security Council's re-
action thereto under relatively uncontrover-
sial exercise of its Chapter VII powers,
38
or
in terms of consent of the parties.
39
In
other words, the pre-Kosovo Yugoslav con-
text does not present a situation of a purely
domestic humanitarian crisis in which out-
side state actors have asserted a unilateral
(or even collective) right to intervene in
domestic affairs on humanitarian grounds.
40
A final example that may be cited is
the ECOWAS intervention in Sierra Leone in
February 1998.
41
As a result of civil strife
the democratically elected president of
Sierra Leone had been ousted in a coup
d'tat in May of 1997. The UN Security
Council responded with Resolution 1132
(1997), calling for the restoration of the
democratically elected government, finding
that the situation constituted a threat to
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international peace and security, encourag-
ing ECOWAS to find a peaceful solution to the
situation, but refraining from authorizing the
use of force.
42
ECOWAS acted nevertheless,
again mainly with Nigerian troops, to restore
the democratic government, a result that was
welcomed by the Security Council.
43
While it
can be said that ECOWAS did act unilaterally
and without Security Council authorization,
and while ECOWAS justified its intervention in
part on humanitarian grounds, it is more
likely that this was an instance of unilateral
intervention to restore a democratic govern-
ment.
44
As such, its clear precedential value
in terms of unilateral humanitarian interven-
tion is open to question.
In short, even in the wake of the Cold
War and the rising prominence of humanitar-
ian concerns over those of the unconditional
principle of non-intervention, state practice in
support of an unequivocal right of unilateral
forcible humanitarian intervention has been
limited and or ambiguous.
45
That experience
largely only supports the emergence of a
much broader understanding of the Security
Council's Chapter VII powers, and what in
particular can be deemed to constitute a
threat to international peace and security.
46
However, as I will suggest shortly, the fact
that the rhetoric of "humanitarian interven-
tion" became, in the post Cold War period,
more prevalent as at least a partial justifica-
tion for the unilateral use of force by some
states against others, is significant.
The Crystallization of a New Norm
Permitting Forcible Unilateral
Humanitarian Intervention?
There are several elements that are
crucial to appreciating the legal significance
of NATO's military intervention in Kosovo and
the FRY.
First and foremost, of course, is the
absence of any Security Council authorization
pursuant to Chapter VII permitting member
states to use force against the FRY on human-
itarian or any other grounds. While Resolu-
tions 1160 and 1199 both invoked Chapter
VII for purposes of determining the existence
of a threat to international peace and secu-
rity, the Security Council plainly chose not to
authorize any enforcement action aimed at
quelling what it itself termed the
"humanitarian catastrophe" unfolding in
Kosovo. The reasons for this are of course
obvious: Russia and China, in a move disqui-
etingly reminiscent of the Cold War era, had
clearly signaled their intent to veto any such
authorization.
47
Thus, notwithstanding some
initial and rather faint attempts (notably by
the Americans) to characterize the use of
force as having been authorized by earlier
Security Council Resolutions applicable to the
broader Yugoslav crisis, no such intent by the
Security Council can realistically be inferred.
48
A second and very closely related
point is that NATO did not have any Security
Council authorization to intervene forcefully
in the FRY under Chapter VIII as a "regional
arrangement".
49
This, taken with the absence
of Chapter VII authorization, clearly removes
NATO's intervention from the Charter's collec-
tive use of force framework. To this extent
the Kosovo intervention is distinguishable
from the majority of post-Cold War practice I
have briefly reviewed, which as seen has
largely been characterized by the prevalence
of collective humanitarian intervention (where
such has occurred at all).
The third important aspect of NATO's
actions is the number and nature of the
intervening parties. While it has been com-
mon parlance (including in my comments to-
day) to speak of intervention by NATO as
opposed to intervention by NATO's con-
stituent members, in reality there is no legal
relevance to the interposition of NATO, as a
regional defence and security organization,
between its members and the FRY. NATO as
an organization, I would argue, is of no
greater (or lesser) legal significance than the
sum of its parts. NATO has little if any
international legal personality of its own. The
North Atlantic Treaty itself, which states that
NATO is established in full consistency with
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the UN Charter and commits its members to
observing the principles of the Charter,
50
clearly provides that ultimate decision-
making is in the hands of the North Atlantic
Council,
51
on which each member state is
represented.
52
As such, NATO has no supra-
national authority or decision-making power
independent from those of its members.
Hence, decisions taken by the Council and
thus by NATO are in fact the decisions of
each and all of its members.
53
In short, NATO is not so much an
actor in the FRY as a tool in the hands of the
19 member states of the Alliance. Any one of
those states could have blocked NATO's mili-
tary intervention in Kosovo. To the contrary,
they have each, either directly or through the
agency of their representatives on the North
Atlantic Council, asserted their legal right to
undertake such military intervention on hu-
manitarian grounds. Similarly, they have
each, either directly or again through the
agency of NATO, in fact intervened militarily
in the FRY on humanitarian grounds. In
reality, therefore, this intervention was under-
taken by 19 individual states acting, albeit,
concertedly through machinery they had put
in place to facilitate such concerted military
action. There is thus no principled or legally
relevant way of distinguishing this action
from actions undertaken separately by 19
like-minded states.
54
Therefore, the sole le-
gal significance of the plural nature of the
intervention, I would submit, is that it serves
as a tremendously forceful precedent in
shaping the content of customary interna-
tional law on the issue.
Further, these 19 states, while obvi-
ously located in a relatively discrete geo-
graphical area, represent a significant cross-
section of the international community. Not
only do they comprise the overwhelming ma-
jority of states in Europe and North America,
they now include three former members of
Cold War "Eastern Europe";
55
represent at
least two of the world's main legal systems,
include one predominantly Muslim state,
56
and encompass economies of considerably
varying magnitudes.
In short, the intervention in this case
represents significant state practice. Ar-
guably, moreover, there have been two sets
of forcible interventions: In addition to the
actual use of force between March 24 and
June 10, 1999, the original issuance of the
Activation Orders by the North Atlantic Coun-
cil on October 13, 1998, which clearly repre-
sented a "threat [of the] use of force" within
the meaning of article 2(4) of the Charter,
might also be considered forcible interven-
tion.
A fourth legally significant element is
the insistence by NATO members that in
using force against the FRY they were not
acting inconsistently with the UN Charter.
Instead, NATO members consistently main-
tained that they were legally entitled to use
force on humanitarian grounds alone.
57
Further and in sharp contrast to prior
invocations of humanitarian violations as a
justification for intervention, unilateral or col-
lective, NATO and its members did not rely on
humanitarian grounds as a poor-cousin alter-
native to other perhaps less controversial
justifications. Nor would it have been realis-
tic to do so. While transborder refugee flows
and ethnic tensions in the region may well
have posed a threat to international peace
and security as determined by the Security
Council, it is unlikely that any member of the
Alliance could realistically have claimed to be
acting in self defence in bombing the FRY.
Likewise, there certainly was no consent or
invitation on the part of the central govern-
ment in the FRY, and unlike the situations in
Somalia or Rwanda, there clearly was such a
central government exercising (all too) effec-
tive control over the territory in question.
Further, even if the KLA could have been
characterized as a national liberation move-
ment controlling sufficient territory to invie
international intervention,
58
it was clear from
the outset, both in the Security Council and in
NATO statements, that no support was being
proffered to the KLA as a national liberation
movement nor for its goal of independence
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for Kosovo.
59
In particular, while both the
Security Council and NATO members repeat-
edly called for a greater degree of autonomy
for Kosovo, they equally stressed that this
was to be accomplished "within the Yugoslav
Federation".
60
They also went to consider-
able lengths to affirm their "commitment to
the preservation of the FRY's territorial in-
tegrity".
61
In short, at no relevant time did
NATO or its members endorse any form of
external self-determination for Kosovo, pre-
ferring instead to focus on the need for a
greater degree of internal self-determination.
Finally and notwithstanding statements at-
tributing the need for forcible intervention to
the policies of the Milosevic government (as
distinct from the Yugoslav people),
62
it was
never a stated objective of NATO's interven-
tion to seek to install a particular form of
government, democratic or otherwise, in Bel-
grade.
When all of these factors are com-
bined, they would appear to provide remark-
able evidence of state practice and opinio
juris that would be required for the crystal-
lization of an emergent norm of customary
international law permitting unilateral forcible
intervention on humanitarian grounds.
63
The
possibility in general of such incremental de-
velopment of further exceptions to the gen-
eral prohibition on the use of force contained
in article 2(4) of the Charter has already
received express recognition from the Inter-
national Court of Justice in the Nicaragua
case.
64
That possibility has further been the
focus of considerable doctrinal study and, if
one is to judge from the actions of states I
have reviewed, is also generally admitted by
states (at least from time to time).
Nor should such a development
come as any great surprise or require invoca-
tion of theories of "instantaneous" creation of
customary international law.
65
As demon-
strated, NATO's intervention crowns a long if
problematic evolution in the posture of states
when it comes to the juxtaposition of the
deeply-rooted principle of non-intervention
and the sometimes competing principle of
respect for basic dictates of humanity. As my
earlier review of state practice illustrated,
states have with increasing frequency since
the end of the Cold War been asserting the
existence of a legal right (if not obligation) to
intervene in the allegedly domestic affairs of
other states on humanitarian grounds. Until
now, such forays have primarily been justified
through co-option of the collective security
apparatus of the UN Charter. Other such
forays, as we have seen, have had a clouded
genesis and have thus often been of dubious
precedential value. In retrospect none of
these can be considered entirely irrelevant,
however, given that, in a rare moment when
appropriate circumstances and political will
coincided, a significant number of states
chose to act unilaterally and tojustify such
action on humanitarian grounds. It is possi-
ble, in other words, to view NATO's interven-
tion as but another -- albeit enormous -- step
in the gradual normative shift, now underway
for some time, from a rigid to a conditional
conception of the principle of non-
intervention.
Due weight must of course also be
given to the fact that there has been no
unanimous chorus of support from all quar-
ters for the actions of the Alliance. Indeed,
two permanent Security Council members
(the Russian Federation and the People's Re-
public of China) have been openly critical of
the action.
66
Their voices have been joined
by a significant number of others.
67
What-
ever the motivations underlying these
protests, they must be taken at face value
when assessing the likelihood that recent
events will have law-creating effects.
However, it is also the case that any
newly emerging norm of international law is
likely to meet with some, perhaps even con-
siderable, initial resistance. The true test will
be one of time and how generally and consis-
tently the objections to the unilateral foray
are maintained.
68
While it is of course signifi-
cant that two permanent members of the
Security Council objected to the NATO inter-
vention, it is equally if not more so that a
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majority of permanent members supported
and indeed participated in it.
69
While dissent-
ing voices other than those of Russia and
China must also be given their due weight, so
to must the views of those non-NATO states
that either supported NATO's actions or
merely acquiesced in them.
70
For such an event to be relegated to
legal insignificance would be to attach no
law-making significance at all to the con-
certed and unambiguous actions of 19 of the
most influential states on the planet, includ-
ing the only remaining military superpower --
and one with a historic penchant for foreign
interventions at that. It is submitted that
such a conclusion could only be defensible in
the light of some future inconsistent practice
by a significant number of the same states
involved in the NATO intervention; such in-
consistent practice could serve to undermine
the precedential value of that intervention.
A crude way of testing this view
might be to ask the following rhetorical ques-
tion: Can it seriously be doubted that, were
Canada to undertake a brutal campaign of
repression against an ethnic minority within
its borders in clear violation of basic humani-
tarian norms, it would be estopped on the
basis of its actions in the FRY from objecting
to forcible external intervention to stop such
brutalities?
Conclusions
As suggested above, time will reveal
the true law-making effect of the NATO inter-
vention in Kosovo and the FRY. Future in-
stances of state practice -- either consistent
or inconsistent with the NATO precedent --
will of course be key, although it is to be
hoped that circumstances calling for invoca-
tion of the precedent will be rare.
As it happens the International Court
of Justice may also be called upon to assist in
determining the legal content and signifi-
cance of the acts of at least some NATO
members, assuming jurisdictional issues do
not deprive the Court of this role. Should
jurisdiction be found, the challenges facing
the Court will be significant. For example, the
Court will have to address the temporal prob-
lem of when exactly unilateral actions of
states acquire the mantle of legality. In this
case, will NATO member's acts be condemned
as illegal at the time they were initiated but
somehow recognized as precedent-setting
with respect to the future content of the law?
This will require further grappling with the
paradox of a legal system which is in part
customary and thus constantly evolving un-
der the influence of its principal subjects,
nation states, while at the same time purport-
ing to regulate the conduct of those same
subjects.
This may also be an opportunity for
the Court, assuming it assumes jurisdiction
and recognizes the emergence of a norm of
the sort propounded by NATO members, to
address the theoretical and policy underpin-
nings of such a norm.
71
The Court may find
guidance here in observing that, in acting as
they have, NATO members appear to have
acknowledged the ascendancy of the princi-
ple of respect for basic humanitarian stan-
dards of conduct over the principle of non-
intervention.
Alternatively, the conduct of NATO
members here may be explained on the basis
that they have concluded that extreme hu-
manitarian abuses do not come within the
sole ambit of "domestic affairs", in much the
same was as the persecution of foreign na-
tionals has long been recognized as raising
transnational issues.
Either way, the principle of non-
intervention ceases to be an absolute and
unqualified grundnorm of the international
legal system, and instead becomes a much
more tightly circumscribed principle subordi-
nated to the new overriding principle of re-
spect for basic humanitarian law:
This war gives human rights prece-
dence over the rights of states. The
Federal Republic of Yugoslavia has
been attacked without a direct UN
mandate for the alliance's action. But
Phone: 416-979-1875 Fax: 416-979-0825
the alliance has not acted out of
license, aggressiveness or disrespect
for international law. On the con-
trary, it has acted out of respect for
the law that ranks higher than the
protection of the sovereignty of
states. It has acted out of respect for
the rights of humanity, as they are
articulated by our conscience as well
as by other instruments of interna-
tional law.
72
Endnotes
1
NATO was established as a regional com-
mon defence and security organization by the
North Atlantic Treaty, signed in Washington on
April 4, 1949. Current members of the Alliance
are: Belgium, Canada, the Czech Republic, Den-
mark, France, Germany, Greece, Hungary, Iceland,
Italy, Luxemburg, the Netherlands, Norway, Poland,
Portugal, Spain, Turkey, the United Kingdom and
the United States of America.
2
In this comment "humanitarian interven-
tion" is used generally to refer to the use of force
by one state against another state on humanitarian
grounds, and excludes unless otherwise stated
intervention based on consent, aid to or rescue of
one's nationals, aid to insurgency movements or
national liberation movements, or intervention to
install or support democratic governments. On the
issue of the many definitions of intervention and
their normative importance, see, e.g., L.F. Dam-
rosch, "Changing Conceptions of Intervention in
International Law" in L.W. Reed & C. Kaysen, eds.,
Emerging Norms of Justified Intervention (1993) 91
at 91; I. Brownlie, "Thoughts on Kind-Hearted Gun-
men" in R.B. Lillich, ed., Humanitarian Intervention
and the United Nations (Charlottesville: University
Press of Virginia, 1973) 139 at 139-140; S.G. Si-
mon, "The Contemporary Legality of Unilateral Hu-
manitarian Intervention" (1993) 24 Cal. W. Int'l L.J.
117 at 119-121.
3
See T.M. Franck & N.S. Rodley, "After
Bangladesh: The Law of Humanitarian Intervention
By Military Force" (1973) 67 A.J.I.L. 275 at 303:
International law is not static. In-
ternational law, as a branch of behavioural
science, as well as of normative philoso-
phy, may treat [an] event as the harbinger
of a new law that will, henceforth, increas-
ingly govern interstate relations. On the
one hand, international lawyers must not
be slow to accept changes which are actu-
ally occurring; neither should they fad-
dishly accept as law any event merely be-
cause it has occurred.
4
See R. Higgins, "Intervention and Interna-
tional Law" in H. Bull, ed., Intervention in World
Politics (Oxford: Clarendon Press, 1984) 29 at 42:
"the task of the international lawyer over the next
few years is surely not to go on repeating the
rhetoric of dead events which no longer accord
with reality, but to try to assist political leaders to
identify what is the new consensus about accept-
able and unacceptable levels of intrusion."
5
This comment does not offer any view as to
the legality of the conduct of the military actions of
NATO or the military forces of its member states
once initiated (i.e. the jus in bello as distinct from
the jus ad bellum). Similarly, it will be for others to
assess the overall wisdom of military intervention,
whether in the Balkans or elsewhere, in the further-
ance of humanitarian interests. No comment is
offered here on the political, military, or moral
correctness of NATO's actions in Kosovo and the
FRY, all of which require assessments far beyond
the somewhat crude calculus of our present system
of international law. This comment therefore fo-
cuses solely on the issue of what impact, if any,
NATO actions in relation to Kosovo may have on
the threshold issue of the purported existence of a
legal right of unilateral forcible humanitarian inter-
vention.
6
See, e.g., E. Stowell, Intervention in Interna-
tional Law (1921) at 63 ff.; M. Ganji, International
Protection of Human Rights (1962), at 22ff; T.M.
Franck & N.S. Rodley, "After Bangladesh: The Law
of Humanitarian Intervention by Military Force"
(1973) 67 A.J.I.L. 275 at 279-285. See also, for a
brief overview of the principal such instances of
state practice, Reisman & McDougal, supra, note 6
at 179-183.
7
See, e.g., H. Grotius, The Rights of War and
Peace (Universal Classics Library, Campbell trans.
1901) at 285-289; E. Vattel, Droit des Gens (T.
Pomroy ed. 1805) at 56; both quoted in W.M.
Reisman & M.S. McDougal, "Humanitarian Interven-
tion to Protect the Ibos" in R.B. Lillich, ed., Humani-
tarian Intervention and the United Nations
(Charlottesville, Va.: University Press of Virginia,
1973) 167 at 170; P. Guggenheim, Trait de droit
international public (1953) at 289; E. Borchard, The
Diplomatic Protection of Citizens Abroad (1916) at
14; E. Stowell, Intervention in International Law
(1921) at 63; L. Oppenheim, International Law
Phone: 416-979-1875 Fax: 416-979-0825
(1905) at 347; L. Oppenheim, International Law (7
th
ed. H. Lauterpacht, 1948) at 279-280; 6 J. Moore,
Digest of International Law (1906) at 347-67; H.
Lauterpacht, International Law and Human Rights
(1950) at 120ff. But see, e.g., P.H. Winfield, "The
Grounds of Intervention in International Law"
(1924) 5 Brit. Y.B. Int'l L. 149; H. Hodges, The
Doctrine of Intervention (1915) at 87.
8
See, e.g., P. Jessup, A Modern Law of Na-
tions (1948) at 169-170; I. Brownlie, International
Law and the Use of Force by States (1963); C.H.M.
Waldock, "The Regulation of the Use of Force by
Individual States in International Law" (1952-II) 81
Hague Recueil 455 at 492; but see R.B. Lillich,
"Forcible Self-Help by States to Protect Human
Rights" (1967) 53 Iowa L.Rev. 325 at 347; Reisman
& McDougal, supra, note 6 at 176-178.
9
See, e.g., M. Akehurst, "Humanitarian Inter-
vention" in H. Bull, ed., Intervention in World Poli-
tics (Oxford: Clarendon Press, 1984) 95 at 104-
112; H. Wehberg, "L'Interdiction du Recours la
Force: Le Principe et les Problmes Qui Se Posent"
(1951) 78 Hague Recueil at 7, 70ff; A. von Ver-
dross, "Ides Directrices de l'Organisation des Na-
tions Unies" (1953) 83 Hague Recueil at 1, 14; L.
Oppenheim, International Law (7
th
ed. Lauterpacht,
1952), vol. 2 at 154; Brownlie, ibid. at 265-268; M.
Akehurst, A Modern Introduction to International
Law 4
th
ed. (1982) at 219-221.
10
Case Concerning Military and Paramilitary
Activities (Nicaragua v. USA), [1986] I.C.J. Rep. 14.
11
Principle 1, Declaration on Principles of In-
ternational Law Concerning Friendly Relations and
Co-operation among States in Accordance with the
Charter of the United Nations, UNGA Res. 2625
(XXV), UN GAOR, 25
th
Sess., Supp. No. 28, at 121,
UN Doc. A/8028(1971), adopted by consensus on
October 24, 1970. Note too the language used in
the eighth paragraph of the preamble to the Decla-
ration: " the strict observance by States of the
obligation not to intervene in the affairs of any
other State is an essential condition to ensure that
nations live together in peace with one another,
since the practice of any form of intervention not
only violates the spirit and letter of the Charter, but
also leads to the creation of situations which
threaten international peace and security"
[emphasis added].
12
Case Concerning Military and Paramilitary
Activities (Nicaragua v. USA), supra, note 12 at
106-110.
13
See, e.g., the surveys of state opinion in
J.-P.L. Fonteyne, "Forcible Self-Help by States to
Protect Human Rights: Recent Views from the
United Nations" in Lillich, ed., supra, note 2 197; R.
Higgins, "The Legal Limits to Use of Force by
Sovereign States -- United Nations Practice" (1961)
37 Brit. Y.B. Int'l L. 269.
14
See, e.g., Franck & Rodley, supra, note 3 at
285-289. For the view that the French intervention
in the Central African Republic in 1979 constituted
a unilateral humanitarian interve(Unntion, see Si-
mon, supra, note 2 at 147-148.
15
See A.M. Weisburd, Use of Force: The Prac-
tice of States Since World War II iversity Park,
Pennsylvania: Pennsylvania State University Press,
1997) at 146-150; Akehurst, supra, note 11 at 96;
Burmester, supra, note 20 at 285-289. And see
generally T.M. Franck & N.S. Rodley, "After
Bangladesh: The Law of Humanitarian Intervention
by Military Force" (1973) 67 A.J.I.L. 275.
16
See F. R. Tesn, Humanitarian Intervention:
An Inquiry Into Law and Morality (Dobbs Ferry, NY:
Transnational Publishers, 1988) at 159-175; Ake-
hurst, supra, note 11 at 99; Weisburd, ibid. at
40-42; Burmester, supra, note 20 at 289-291.
17
Weisburd, supra, note 23 at 43; Akehurst,
supra, note 11 at 97-98; Burmester, supra, note 20
at 292-295.
18
See, e.g., W.M. Reisman, "Coercion and Self-
Determination: Construing Charter Article 2(4)"
(1984) 78 A.J.I.L. 642; Weisburd, supra, note 23 at
234-240.
19
E.g. defence of their nationals or of the
nationals of third party states, or invitation, or
reprisals.
20
See T. J. Farer, "An Inquiry Into the Legiti-
macy of Humanitarian Intervention" in L.F. Dam-
rosch & D.J. Scheffer, eds., Law and Force in the
New International Order (1991) 185 at 193; Weis-
burd, ibid. at 41 (Tanzania), 43 (Vietnam), 148
(India), 236 (USA -- Grenada), 239 (USA -- Panama).
See also Akehurst, supra, note 11 at 99.
21
These interventions were denounced by the
UN General Assembly; see N.S. Rodley, "Collective
Intervention to Protect Human Rights and Civilian
Populations: The Legal Framework" in N.S. Rodley,
ed., To Loose the Bands of Wickedness (1992) 14 at
20. See also Weisburd, ibid. at 42 (Tanzania), 43
(Vietnam), 148-149 (India), 237-238 (USA --
Grenada), 239-240 (USA -- Panama); Akehurst, ibid.;
M.E. O'Connell, "Regulating the Use of Force in the
21
st
Century: The Continuing Importance of State
Autonomy" (1997) 36 Col. J. Transnat'l L. 473 at
477.
22
Gordon, ibid. at 544-46.
23
See, e.g., B.F. Burmester, "On Humanitarian
Intervention: The New World Order and Wars to
Preserve Human Rights" (1994) Utah L. Rev. 269;
D.M. Kresock, "Ethnic Cleansing in the Balkans:
Phone: 416-979-1875 Fax: 416-979-0825
The Legal Foundations of Foreign Intervention"
(1994), 27 Cornell Int'l L. J. 203; J.A.R. Nafziger,
"Humanitarian Intervention in a Community of
Power -- Part II" (1994) 22 Denv. J. Int'l L. & Pol.
219; V.P. Nanda, "Tragedies in Northern Iraq,
Liberia, Yugoslavia and Haiti -- Revisiting the Valid-
ity of Humanitarian Intervention Under Interna-
tional Law -- Part 1" (1992) Denv. J. Int'l L. & Pol'y
305; B. Pruitt-Hamm, "Humanitarian Intervention in
Southeast Asia in the Post-Cold War: Dilemmas in
the Definition and Design of International Law"
(1994) 3 Pac. L.J. 183; D.J. Scheffer, "Toward a
Modern Doctrine of Humanitarian Intervention
(1992) 23 U. Tol. L. Rev. 253.
24
For a detailed review of these events, see
M.E. O'Connell, "Continuing Limits on UN Interven-
tion in Civil War" (1992) 67 Ind. L.J. 903 at 904-909.
25
Security Council Resolution 688 (1991), UN
Doc. S/Res/688 (1991). The resolution was
adopted 10 votes to 3 (Cuba, Yemen and Zim-
babwe), with 2 abstentions (China and India).
26
See Gordon, supra, note 36 at 49. See also
P. Malanczuk, Humanitarian Intervention and the
Legitimacy of the Use of Force (1993) at 18.
27
Ibid.
28
See M.J. Harrington, "Operation Provide
Comfort: A Perspective in International Law"
(1993) 8 Conn. J. Int'l L. 635 at 643-46; J.E. Strom-
seth, "Iraq's Represssion of its Civilian Population:
Collective Responses and Continuing Challenges"
in L.F. Damrosch, ed., Enforcing Restraint: Collec-
tive Intervention in Internal Conflicts (1993) 77 at
89-90.
29
Ibid.
30
Ibid. See also Wippman, supra, note 31 at
472.
31
See Malanczuk, supra, note 38 at 19.
32
ECOWAS was established under the Treaty
of the Economic Community of West African States,
May 28, 1975, (1975) 1010 U.N.T.S. 17. Original
members of the Community were Benin, Gambia,
Ghana, Guinea-Bissau, Ivory Coast, Liberia, Mali,
Mauritania, Niger, Nigeria, Senegal, Sierra Leone,
Togo and Upper Volta (now Burkina Faso). For a
description of the genesis of the Community, see K.
Nowrot & E.W. Schabacker, "The Use of Force to
Restore Democracy: International Legal Implica-
tions of the ECOWAS Intervention in Sierra Leone"
(1998) 14 Amer. U. Int'l L. Rev. 321 at 332-334.
33
See J. Levitt, "Humanitarian Intervention By
Regional Actors in Internal Conflicts: The Cases of
ECOWAS in Liberia and Sierra Leone" (1998) 12
Temp. Int'l & Comp. L.J. 333 at 343.
34
Ibid.
35
Ibid. at 347. See also Security Council
Resolution 788 (1992), UN Doc. S/Res/788 (1992),
commending ECOWAS for its attempts to bring
peace to Liberia; Security Council Resolution 866
(1993), UN Doc. S/Res/866, September 22, 1993
establishing the United Nationas Observeer Mission
in Liberia which was to cooperate with the ECOWAS
peacekeeping mission.
36
See Levitt, ibid.
37
Security Council Resolution 794 (1992), UN
Doc. S/Res/794 (1992). See generally on the
events leading to this resolution Burmester, supra,
note 34 at 313-317.
38
See, e.g., Security Council Resolution 770
(1992), UN doc. S/Res/770 (1992); Security Council
Resolution 816 (1993), UN doc. S/Res/816 (1993).
39
See, e.g., M.E. O'Connell, "Regulating the
Force in the 21
st
Century: The Continuing Impor-
tance of State Autonomy" (1997) 36 Col. J.
Transnat'l L. 473 at 486. Note in particular the
conclusion of a General Framework Agreement for
Peace in Bosnia and Herzegovina on December 14,
1995: (1996) 35 I.L.M. 75 at 89.
40
See generally R.E. Rupp. "Cooperation, Inter-
national Organizations, and Multilateral Interven-
tions in the Post-Cold War Era: Lessons Learned
from the Gulf War, the Balkans, Somalia, and Cam-
bodia" (1998) 3 U.C.L.A.J. Int'l & Foreign Aff. 183.
41
See Nowrot & Schabacker, supra, note 46 at
332; Levitt, supra, note 47 at 364-367.
42
Security Council Resolution 1132 (1997),
UN Doc. S/Res/1132 (1997).
43
Statement by the President of the Security
Council, U.N. Doc. S/PRST/1998/5 (1998).
44
See generally Nowrot & Schabacker, supra,
note 46; but see Levitt, supra, note 47 at 364-367.
45
Note that the 1994 intervention in Haiti is
not discussed here as it cannot truly be considered
an instance of humanitarian intervention. Rather,
it is more correctly characterized as an intervention
(ultimately virtually non-forcible) to restore a
democratically elected government: see R. Gordon,
supra, note 36 at 53; O'Connell, supra, note 63 at
487-488. See also generally R. Falk, "The Haiti
Intervention: A Dangerous World Order Precedent
for the United Nations" (1995) 36 Harv. Int'l L.J.
341.
46
See, e.g., Wippman, supra, note 31 at 461-
464.
47
See Baggett, supra, note 71, text accompa-
nying footnote 74.
48
See also the statement made by UN Secre-
tary General on March 24, 1999, insisting that
while "there are times when the use of force may
be legitimate in the pursuit of peace, the
[Security] Council should be involved in any deci-
Phone: 416-979-1875 Fax: 416-979-0825
sion to resort to force". Clearly the Secretary
General was of the view that no Security Council
authorization existed for NATO's use of force.
49
As required by article 53 of the UN Charter.
50
See the preamble to the Treaty and articles
1, 5 and 7.
51
See NATO, The NATO Handbook , 1998 edi-
tion, chapters 2 ("The Principal Policy and Decision
Making Institutions of the Alliance") and 7 ("Policy
and Decision Making"), available online at <http://
www.nato.int/docu/handbook/1998/>, visited June
30, 1999.
52
North Atlantic Treaty, article 9.
53
Supra, note 106, chapter 2:
"Decisions are the expression of the
collective will of member governments ar-
rived at by common consent. All member
governments are party to the policies for-
mulated in the Council or under its author-
ity and share in the consensus on which
decisions are based. When decisions
have to be made, action is agreed upon on
the basis of unanimity and common ac-
cord. There is no voting or decision by
majority. Each nation represented at the
Council table or on any of its subordinate
committees retains complete sovereignty
and responsibility for its own decisions."
54
This is not to prejudge, however, the valid-
ity of policy arguments to the effect that the
potential for abuse of a right of humanitarian
intervention may more readily be avoided or re-
duced through a preference for concerted, as op-
posed to truly unilateral, action: see, e.g.,
Burmester, supra, note 34 at 282-283. The only
point made here is that in assessing the generality
of state practice, the mere fact of concerted action
amongst 19 states does not detract from the fact
that such still represents 19 instances of state
practice.
55
The Czech Republic, Hungary and Poland.
56
Turkey.
57
See, e.g., Department of Foreign Affairs and
International Trade, "Backgrounder: Canada and
Kosovo", June 17, 1999, <http://www.dfait-
maeci.gc.ca/foreignp/kosovo/text/back-e.asp>,
visited June 30, 1999. See also "The situation in
and around Kosovo" - Statement Issued at the
Extraordinary Ministerial Meeting of the North At-
lantic Council held at NATO Headquarters, Brus-
sels, April 12, 1999, NATO Press Release M-NAC-
1(99)51; "Statement on Kosovo" - Statement issued
by the Heads of State and Government participat-
ing in the meeting of the North Atlantic Council in
Washington, D.C., April 23,1999, NATO Press Re-
lease S-1(99)62; Press Statement by NATO Secre-
tary General Javier Solana, March 23, 1999, NATO
Press Release (1999)040; "Statement on Political
and Military Objectives of NATO Action with Regard
to the Crisis in Kosovo", March 23, 1999, NATO
Press Release (1999)043; Press Statement by NATO
Secretary General Javier Solana, NATO Secretary
General following the Commencement of Air Oper-
ations, March 24, 1999, ATO Press Release
(1999)041; Letter from NATO Secretary General to
President of the FRY, January 30, 1999, UN Doc.
S/1999/107.
58
As contemplated by the ICJ in the Nicaragua
case, supra, note 12.
59
See supra, notes 75, 78 and 112.
60
Ibid.
61
Ibid.
62
Supra, footnote 112.
63
See North Sea Continental Shelf Cases,
[1969] I.C.J. Rep. 4 at 42.
64
Military and Paramilitary Activities in
Nicaragua, supra, note 12 at 108-109. See also D.
Kritsiotis, "Reappraising Policy Objections to Hu-
manitarian Intervention" (1998) 19 Mich. J. Int'l L.
1005 at 1010-1011, 1013.
65
North Sea Continental Shelf Cases, supra,
note 119 at paras. 73-74.
66
See Baggett, supra, note 71, text accompa-
nying footnote 74.
67
See, e.g., Declaration of the Interparliamen-
tary Assembly of States Members of the Common-
wealth of Independent States Concerning Military
Operations by NATO in the FRY, April 3, 1999, UN
Doc. S/1999/461, April 22, 1999 (unanimous ob-
jection to such use of force by Armenia, Belarus,
Kazakhstan, Kyrgyz Republic, Moldova, Russian
Federation, Tajikistan and Ukraine); Communiqu
of March 25, 1999 of the Rio Group of Latin
American States Concerning the Situation in
Kosovo, UN Doc. S/1999/347, March 26, 1999
(challenging NATO actions as contrary to articles
53 and 54 of the UN Charter); Statement of the
Movement of Non-Aligned Countries, April 9, 1999,
UN Doc. S/1999/451, April 21, 1999 (emphasizing
that diplomacy is the only route to peace and that
the Security Council bears sole responsibility for
invoking the use of force).
68
See, e.g., J.A. Beesley, Canadian Statement
of December 4, 1970 to the First Committee of the
U.N. General Assembly, reprinted in J.A. Beesley &
C.B. Bourne, eds., "Canadian Practice in Interna-
tional Law During 1970 as Reflected Mainly in
Public Correspondence and Statements of the De-
Phone: 416-979-1875 Fax: 416-979-0825
partment of External Affairs" (1971), 9 Can. Y.B.
Int'l L. 276 at 276-278.; see also M.S. McDougal,
"The Hydrogen Bomb Tests and the International
Law of the Sea" (1955) 49 A.J.I.L. 356 at 356-358.
69
It is also noteworthy that a draft Security
Council Resolution tabled by Russia on March 26,
1999 calling for an end to NATO's actions in
Kosovo was defeated by a 12-3 vote: See "Security
Council Rejects Demand for Cessation of Use of
Force Against FRY", UN Press Release SC/6659,
March 26, 1999. Only the Russia, China and
Namibia voted in favour of the draft resolution.
70
See, e.g., Chairman's Summary of the Delib-
erations on Kosovo at the Informal Meeting of EU
Heads of State on April 14, 1999, UN Doc. S/
1999/429, esp. para. 2 (expressing unanimous
support for NATO intervention in Kosovo); Declara-
tion of the Ministerial Meeting of the Organization
of the Islamic Conference on Bosnia & Hercegovina
and Kosova, April 7, 1999, UN Doc. S/1999/394,
April 7, 1994 (condemning human rights abuses by
FRY in Kosovo and expressing "regret" that the
Security Council has been unable to discharge its
responsibilities in the matter). On the significance
of acquiescence to the formation of new customary
norms, see, e.g., I.C. MacGibbon, "Customary Inter-
national Law and Acquiescence" (1957) 33
Brit.Y.B.I.L. 115 at 118-119.
71
See generally Kritsiotis, supra, note 120.
72
Vclav Havel, President of the Czech Repub-
lic, in an address to the Canadian Parliament,
Thursday, April 29, 1999; reprinted in the Ottawa
Citizen, April 30, 1999, p.A19.

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