Is there a Legal Basis for the NATO Intervention in Kosovo?

Abstract

The atrocities committed by the Federal Republic of Yugoslavia against the civilian population in Kosovo are clearly contrary to international law. They constitute grave violations of human rights and amount to crimes against humanity. Attempts by the Yugoslav authorities to characterize the events there as internal affairs and to hide behind the concept of sovereignty lack legal foundation. These events are of deep concern to the international community. Does it follow that a group of States or a military alliance has the right to use force in reaction to this Situation? The prohibition of the use of force, as embodied in Article 2(4) of the Charter of the United Nations, is one of the cornerstones of contemporary international law. The Charter provides for certain limited exceptions. One is the right to self-defence provided for in Article 51 of the Charter. But the application of Article 51 requires an attack . . . against a Member of the United Nations. Even the most generous interpretation of the right to collective self-defence cannot cover assistance to an ethnic minority that suffers repression at the hands of its government. Another exception to Article 2(4) of the Charter is enforcement action by the Security Council under Chapter VII, specifically Article 42. Before taking enforcement action, the Security Council has to determine the existence of a threat to the peace, a breach of the peace or an act of aggression under Article 39 of the Charter. The Security Council has repeatedly characterized massive human rights violations or grave humanitarian situations as threats to the peace. With regard to Kosovo, the Security Council already stated in Resolution 1160 (1998) of 31 March 1998 that it was acting under Chapter VII of the Charter. In Resolution 1199 (1998) of 23 September 1998 and in Resolution 1203 (1998) of 24 October 1998 it affirmed that the situation in Kosovo constitutes a threat to peace and security in the region. In this context, the Security Council imposed an embargo on military supplies in Resolution 1160 (1998) in accordance with Article 41 of the Charter. But it has not taken or authorized military enforcement action. A determination under Article 39 that the conditions for enforcement action exist does not authorize member States to use force to implement the Security Council's decision. The Council must take a separate decision under Article 42. The veto of one or several Permanent Members of the Security Council in a situation of this kind may well be in violation of article 55(c) of the Charter which enjoins the United Nations to promote universal respect for, and observance of, human rights. But the casting of a veto or the mere prospect of a veto in the Security Council does not free other member States to do individually or collectively what only the Security Council can do. In 1950, the General Assembly of the United Nations, in response to the prospect of continuing paralysis of the Security Council, adopted the so-called Uniting for Peace Resolution, 377(V). It foresees recommendations for collective measures, including the use of armed force when necessary, if the Security Council fails to exercise its primary responsibility for the maintenance of international peace and security. No such recommendation was passed by the General Assembly in the present case. It is doubtful whether an attempt to do so would have attracted the necessary majority. The Security Council, by emphasizing at the end of