The implications of NATO’s intervention in Kosovo(extract)

Kosovo conflict has posed several questions about the intervention of international
bodies, especially NATO, in conflict areas around the world. First dilemma that the
international community was how to stop the ethnic cleansing without breaching national
sovereignty or how tolerant the international community one can be against intolerance ?1
…………missing part……………
According to international law, NATO’s air bombing campaign was illegal and it
showed a gross violation of all the international treaties that establish national sovereignty,
starting with the Peace of Westphalia, that for the first time in history had regulated the
general recognition of the exclusive sovereignty of each party over its lands, people, and
agents abroad, and each and several responsibility for the warlike acts of any of its citizens or
agents, and continuing nowadays with the most important treaty of international
reglementations, the UN Charter. In international law, matters are relatively clear. States shall
not intervene in the internal affairs of a State or in matters that are essentially within the
domestic jurisdiction of a State (Article 2 of the Charter of the United Nations). Nonetheless,
there is an exception to this rule: the Security Council may intervene as it sees fit when it
determines that there is a threat to international peace and security, which authorizes it to take
enforcement action under Chapter VII of the Charter (Art. 2(7) of the UN Charter). That is
plainly the provision that enabled the UN to intervene in Somalia and Haiti, but also in a
number of other missions, when it believed that international peace and security were
threatened.2
Article 1 of the The North Atlantic Treaty clearly states that „The Parties undertake, as
set forth in the Charter of the United Nations, to settle any international dispute in which they
may be involved by peaceful means in such a manner that international peace and security and
justice are not endangered, and to refrain in their international relations from the threat or use
of force in any manner inconsistent with the purposes of the United Nations.” In other words,
any conflict that may appear must be solved through dialogue and negociation and the use of
force must be the last solution when it comes to end a conflict.
After a meeting with president Elțin, Milosevic has accepted all the request of the
Contact Group, which includes four of the five Permanent Members of the UN Security
Council and the countries that contribute the most in troops and assistance to peacebuilding
efforts in the Balkans. Representatives of the EU Council, EU Presidency, European
Commission and NATO generally attend Contact Group meetings. The request were the
following : termination of all actions in Kosovo and redrawal of the security forces;
acceptancy of international surveillance and unrestricted permission of observers; facilitating
the return of refugees and displaced persons; identification of a fast progress in the dialogue
with the representants of kosovar albanians. The Contact Group has clearly stated that if these
request are not respect, „will be taken measures that will end the violence and will protect the
civil population, including measures that may require the authorisation of a UN Security
Council resolution”3. A day after the agreements, VJ tanks of the Yugoslavian army where
used against villagers living in Kosovo. Milosevic used every opportunity to defy the
1
Burdens of the Past: Separation as Solution to Post-War Kosovo Author: Michael Shafir, Radio Free
Europe/Radio Liberty Senior Regional Specialist
2
NATO intervention in Kosovo : The legal context Author : Albert Legault, Canadian Military Journal, Spring
2000
3
idem
negociations efforts that the international community had made in order to find a peaceful
solution to the conflict.
A last effort towards a peaceful solution was made through the conference of
Rambouillet. During this conference, there had been negociations between then- Yugoslavia
and a delegation representing the ethnic Albanian majority from Kosovo. The negociation
process was mediated by the Contact Group. The main proposal of this conference was to
offer a wide-ranging autonomy for Kosovo within the framework of the Serbian state. This
was to be secured through the stationing of a 28,000-strong "peace force" under the umbrella
of NATO. But this conference had form the beginning a few major problems. Firstly,
Milosevic had once again defied the international community by sending only second-level
representants that didn’t have the authority to engage in serious negociations. Secondly, the
Kosovar delegation was a fragmented one, it’s members haven’t meet not only once before
the conference. Another problem of the Kosovar delegation was the election of Hashim Thaci
as the principal representant of the delegation instead of Rugova. Hashim Thaci was affraid to
sign the 10 principles of the agreement because he thought we would be renegaded by the
militias. Last but not least, the biggest problem for both sides was that the Contact Group's
non-negotiable principles were mutually unacceptable. The Albanians were unwilling to
accept a solution that would retain Kosovo as part of Serbia. The Serbs did not want to see the
pre-1990 status quo restored, and were implacably opposed to any international role in the
governance of the province.
In legal terms, NATO, as a regional arrangement (which it is in reality because of the
terms of the Washington Treaty) or regional agency (which is what the OSCE is, since the
1993 framework agreement between that organization and the UN, but what NATO cannot
claim to be), may intervene in respect of international peace and security, provided that the
actions it undertakes are consistent with the Purposes and Principles of the UN (Article 52),
but Article 53 is also extremely clear: “no enforcement action shall be taken under regional
arrangements or by regional agencies without the authorization of the Security Council”.4
In order to intervene in Kosovo, NATO’s forces needed the mandate of the UN Security
Council. The coalition lead by USA and UK had decide to avoid to propose a resolution in the
Security Council because Russia and China would have vetoed the intervention. Both of these
permanent member would have vetoed the intervention in order to defend their national
interest. Russia was struggling with it’s own insurgency in Chechnya, a teritory with a muslim
majority and a persecuted russian minority. If they had supported the intervention in Kosovo,
Russia would have created a dangerous precedent for their own national integrity and
soverignty. China would have vetoed the intervention based on nationalistic premisses. They
used the tool of nationalism in a large extent in order to prevent demonstrations as the one in
Tienanmen.
As most legal experts had agreed, NATO’s air bombing campaign against Yugoslavia
was illegal because it has disregarded all the international regulations regarding national
soverignty, but this intervention has enlarged the so called „humanitarian intervention” that
shifts the emphasis that was put on soverignty and extended the interventions on protecting
human rights. In the face of genocide, the rights of states, or collectivities of states, to counter
breaches of human rights most likely become an obligation.5 Prof. Delbrueck summarizes the

4
NATO intervention in Kosovo : The legal context Author : Albert Legault, Canadian Military Journal, Spring
2000
5
Cf. the judgment of the International Court of Justice in the Genocide (Bosnia-Herzegovina vs Serbia) case
(1996).
position taken by a number of legal experts on this point: while NATO’s action is “objectively
illegal, there are nonetheless certain bases for that action that are not legal, but justified”.6
In early March, just before NATO’s bombing campaign. Kosovo was only a case of
massive violations of human rights and rights of ethnic minorities, without any characteristics
of genocide according to 1948 Convention.7 But the aftermath of the war showed the true
proportions of the conflict.
Like afore mentioned, when NATO’s bombing campaign started, in Kosovo could be
ascertained only massive violation of human rights without any clear proof of genocide and
ethnic cleansing. Operation „Horseshoe” was the name attributed to the large-scale campaign
of ethnic cleansing of Kosovo Albanians carried out by Serbian Police and Yugoslav
Army during the Kosovo War. It’s goal was undoubtfull. Evidence suggests that the
Milosevic government began preparing a large-scale anti-insurgency campaign to crush the
KLA back in September 1998, long before anyone suspected NATO airstrikes, when the
summer offensive was coming to a close.8
The character and intensity of the campaign appeared to change, however, after the
commencement of NATO bombing. On March 24 began the full-scale cleansing of cities,
such as Pec in Kosovo's southwest, and later Pristina, as well as the burning of Djakovica's
old town. March 24-26 saw an aggressive operation to secure the southwest border with
Albania, which involved large-scale displacement accompanied by killings of civilians. While
this evidence suggests that a powerful anti-insurgency campaign had long been in preparation
before the NATO bombing, it seems that the Milosevic government took advantage of NATO
air strikes to further impose terror on Kosovo's Albanian population and to expel large
numbers of ethnic Albanians from the province. Using the pretext of the NATO bombing, the
government was free to unleash a full-scale offensive on the KLA as well as to order the
expulsion of more than 850,000 Kosovar Albanians.9 Amnesty International estimated that
"nearly one million people have been forced to flee Kosovo"10 and an estimated of 10 356
Kosovar Albanians were killed.11
Firstly, it lead to new agreements that ,clearly and undoubtfully, balance the
competencies in assuring international peace and security. NATO’s intervention in the
Balkans had created such a stir inside the Alliance, that NATO’s New Strategic Concept,
signed at Washington in April 1999, had set the framework for NATO’s future intervention,
legally binding it’s interventions to legal aspect. Article 10 of this Strategic Concept describes
NATO as „an Alliance of nations committed to the Washington Treaty and the United
Nations Charter.” Article 15 of the same documents provides primary competencies to UN

6
NATO intervention in Kosovo : The legal context Author : Albert Legault, Canadian Military Journal, Spring
2000
7
Convention on the Prevention and Punishment of the Crime of Genocide; Adopted by Resolution 260 (III) A
of the U.N. General Assembly on 9 December 1948
8
Under Orders : War Crimes in Kosovo (Human Rights Watch report)
9
Under Orders : War Crimes in Kosovo (Human Rights Watch report) March – June 1999 : Overview
10
Federal Republic of Yugoslavia (Kosovo): After tragedy, justice? ( Amnesty International Report) May 1999
11
„Killings and Refugee Flow in Kosovo March - June 1999” ; Report to the International Criminal Tribunal for
the Former Yugoslavia; by Patrick Ball, Wendy Betts, Fritz Scheuren, Jana Dudukovich, and Jana Asher; 3
January 2002; A comprehensive list of victims, which includes personal data and information about the
circumstances in which each victim was killed or was forcibly disappeared, was made by Humanitarian Law
Center and can be found at
http://www.hlcrdc.org/index.php?lid=en&show=kosovo&action=search&str_stanje=1
Security Council when it comes to providing and assuring international peace and security.12
Furthermore, the same document states , in Article 31, that NATO will strive, “in cooperation
with other organizations, to prevent conflict, or, should a crisis arise, to contribute to its
effective management, consistent with international law , including through the possibility of
conducting non-Article 5 crisis response operations.” This article provides the Alliance the
maneuver space they need for future interventions that may require a green card from the UN
Security Council.
Secondly, the debate „Legality vs. Legitimacy” has produced a major change of
perception on national sovereigny and shifted international treaties towards a more
responsible way of dealing crisis, the so called „Responsibility to protect”. It was the result of
United Nations World Summit 2005 and it is a norm or set of principles based on the idea that
sovereignty is not a privilege, but a responsibility. RtoP focuses on preventing and halting
four crimes: genocide, war crimes, crimes against humanity, and ethnic cleansing. According
to article 138 of the resolution „Each individual State has the responsibility to protect its
populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”
Furthermore, article 139 provides for the international bodies the legal framework to intervene
in protecting civilians from these crimes : „The international community, through the United
Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other
peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect
populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this
context, we are prepared to take collective action, in a timely and decisive manner, through
the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-
case basis and in cooperation with relevant regional organizations as appropriate, should
peaceful means be inadequate and national authorities manifestly fail to protect their
populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

..............missing conclusion................

12
”UN Security Council has the primary responsibility for the maintenance of international peace and security
and, as such, plays a crucial role in contributing to security and stability in the Euro-Atlantic area” NATO’s New
Strategic Concept Washington April 1999