NATO's Attack on Serbia: Anomaly or Emerging Doctrine?

Abstract

Dateline Belgrade, 30 March 1999: At 0400, Greenwich Mean Time, NATO bombs began falling on this capital city of Federal Republic of Yugoslavia (FRY). War has not been declared, and fact, neither FRY nor Serbia [1] has attacked or even threatened to attack any NATO country or ally. So why has NATO unleashed dogs of war on Serbia? This article does not attempt to assess or wrong NATO attack on Federal Republic of Yugoslavia. It does, however, examine factual background and legal arguments for and against that action. And it raises questions which international should address resolving appropriateness of use of force crises. Finally, it proposes guidelines which NATO and United States, if they are to be moral leaders of free world, can take to formalize a doctrine of intervention. Each NATO member and FRY are signatories to United Nations Charter. Article 2(4) of Charter prohibits member states from the or use of force against territorial integrity ... of any state, or any other manner inconsistent with Purposes of United Nations. [2] The only recognized exception to this prohibition is contained Article 51, which recognizes inherent right of a member state to use force self defense if armed attack occurs against it, until Security Council acts. [3] As a matter of international law, a treaty between states is a contract, and most cases specifically becomes law of contracting states. Even if a treaty is not supreme law of land, as it is United States, a treaty is recognized international relations as a binding obligation on parties to treaty, [4] and United Nations Charter itself specifically states that in event of a conflict between obligations of Members of United Natio ns under present Charter and their obligations under any other international agreement, their obligations under present Charter shall prevail. [5] As a treaty binding its members, including nearly every state world, Charter is, then, supreme international law. The other exception under United Nations Charter to use of armed force is when it is authorized by United Nations pursuit of maintaining or restoring peace. This exception, contained Chapter VII of Charter dealing with peace enforcement, is limited to those situations which UN Security Council has declared that a situation is a threat to peace, breach of peace, or act of aggression. [6] Under those circumstances Security Council may take such action by air, sea, or land forces as may be necessary to restore international peace and security. The NATO attack on Serbia was not response to an armed attack, nor was it authorized by Security Council. Instead, NATO conducted its attack support of aims of international community and to resolve a humanitarian emergency, [7] arguing that it simply could not stand by and do nothing. [8] Apologists argue that NATO's actions were either authorized because they supported purposes of UN Charter, or that they were authorized under an emerging doctrine of humanitarian necessity. It is, however, generally acknowledged that attack was illegal; that is, it was not accordance with established procedures under Charter to launch such an act. The deeper question remains: Was this simply an anomalous event which must be expected from time to time international relations, or is there a new doctrine of international law which will permit such actions future? [9] Subsidiary questions arise: If there is a new doctrine of humanitarian necessity, what are its limi ts, and is it a positive obligation on international community, or merely a defense to be exercised selectively when parties feel like it? …