Legitimacy of the NATO bombing of Yugoslavia

The legitimacy under international law of the 1999 NATO bombing of the Federal Republic of Yugoslavia has been seriously questioned. The UN Charter is the foundational legal document of the United Nations (UN) and is the cornerstone of the public international law governing the use of force between States. NATO members are also subject to the North Atlantic Treaty, but its use of force provision is superseded by the non-derogable prohibition of the use of force contained in the Charter, which allows only two exceptions: action taken by the Security Council under Chapter VII, and self-defence against an armed attack. Neither of these exceptions were fulfilled in this case.[1]

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Critics of the bombing have argued that the campaign violated international humanitarian law.[2][3]

Supporters of the NATO bombing of Yugoslavia argued that the bombing brought to an end the ethnic cleansing of Kosovo's Albanian population, and that it hastened (or caused) the downfall of Slobodan Milošević's government, which they saw as having been responsible for the international isolation of Yugoslavia, war crimes, and human rights violations.

The laws of public international law that determine whether launching a war is legally justified are called jus ad bellum.

NATO's argument for the bombing's legitimacy

NATO described the conditions in Kosovo as posing a risk to regional stability. As such, NATO and certain governments asserted they had a legitimate interest in developments in Kosovo, due to their impact on the stability of the whole region which, they claimed, is a legitimate concern of the Organisation.[4]

The UN Charter

The UN Charter is legally binding on all United Nations member states, including all members of NATO, because they have each signed it. Article 2(4) of the UN Charter prohibits the use of force by UN member states to resolve disputes, but with two specific exceptions to this general prohibition:

1. The first exception is set forth in Chapter VII--the UN Security Council has the power to authorize the use of force in order to fulfill its responsibility to maintain international peace and security. In particular, Article 42 states that should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.[5]
2. Article 51 contains the second specific exception to the prohibition on the use of force--the right to self-defence. In particular, Article 51 states that nothing in the present charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.[5]

NATO did not have the backing of the United Nations Security Council to use force in Yugoslavia. Further, NATO did not claim that an armed attack occurred against another state. However, its advocates contend that NATO actions were consistent with the United Nations Charter because the UN Charter prohibits unprovoked attacks only by individual states. The principal legal issue remains, however, since NATO as such is not a member state of the UN, whether the member states of NATO, the United States and the European powers that sent armed forces to attack as part of the NATO bombing campaign, violated the UN Charter by attacking a fellow UN member state: (1) in the absence of UN Security Council authorization, and (2) in the absence of an attack or a threat of imminent attack on them.

The United Nations considers NATO to be a "regional arrangement" under UN Article 52, which allows it to deal with matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. However, the UN policy on military intervention by regional arrangements in UN Article 53 states the Security Council can, where appropriate, "utilize such regional arrangements or agencies for enforcement action under its authority. However, no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council."

NATO's charter

NATO had justified the actions in Kosovo under Article 4 of its charter, the North Atlantic Treaty, which allows involved parties to consult together whenever political independence or security of any of the parties is threatened. Because the NATO actions in Kosovo were taken after consultation with all members, were approved by a NATO vote, and were undertaken by several NATO members, NATO contends that its actions were in accordance with its charter. Article 4, however, is silent as to the use of force and does not discuss under what circumstances force may be authorized.[6]

Article 5 of NATO's charter calls on NATO members to respond in mutual defense when any NATO member is attacked. It is unclear whether under the NATO charter force may be used in the absence of such an attack. Article 5 has been interpreted as restricting NATO's use of force to situations where a NATO member has been attacked. It has been argued, therefore, that NATO's actions were in violation of the charter of NATO.[7] Critics of this theory argue, however, that the purpose of Article 5 is to require all NATO members to respond when any NATO member is attacked, not to restrict the circumstances under which NATO may choose to use force.

The Vienna Convention

Serbia was threatened by NATO with armed attack if Serbia refused to sign the Rambouillet Agreement, an agreement that Serbia in the end refused to sign. It has been argued that pursuant to Article 52 of the 1980 Vienna Convention on the Law of Treaties, had Serbia signed the Rambouillet Agreement, the agreement would have been void due to the threat or use of force to compel Serbian acceptance.[8]

Kofi Annan

UN Secretary-General Kofi Annan supported intervention in principle, saying "there are times when the use of force may be legitimate in the pursuit of peace", but was critical of unilateral action by NATO. He argued "under the [UN] Charter the Security Council has primary responsibility for maintaining international peace and security - and this is explicitly acknowledged in the North Atlantic Treaty. Therefore, the Council should be involved in any decision to resort to the use of force."[9][10][11]

Russian attempt to end the bombing

On the day the bombing started, Russia called for the UN Security Council to meet to consider "an extremely dangerous situation caused by the unilateral military action of the North Atlantic Treaty Organization (NATO) against the Federal Republic of Yugoslavia". However, a draft resolution, tabled jointly by Russia, Belarus and India, to demand "an immediate cessation of the use of force against the Federal Republic of Yugoslavia" was defeated. Among the 15 UN Security Council nations, there were three votes in favour (Russia, China and Namibia) and twelve against, with no abstentions. Argentina, Bahrain, Brazil, Gabon, Gambia, Malaysia, and Slovenia, along with the US, Britain, France, Canada, and Netherlands voted against it.[12][13][14]

Rejection of Russia's condemnation amounted to political, but not legal, support of NATO's intervention. After the war ended with the Kumanovo Treaty and the bombing stopped, some argued that the creation on 10 June 1999 of the UN Interim Administration Mission in Kosovo (UNMIK), by Security Council Resolution 1244 (1999), constituted a legal ratification post festum (after the event).[15]

Humanitarian reasoning

The bombing campaign is sometimes referred to as a "humanitarian war" or a case of "humanitarian intervention".[16][17] Part of NATO's justification for the bombing was to end the humanitarian crisis involving the large outflow of Kosovar Albanian refugees caused by Yugoslav forces.[18] In April 1999, the development of this humanitarian crisis as well as accusations of genocide were used by policy-makers in the United States and Europe to legally justify the campaign on the basis of "humanitarian law", allowing for intervention where large scale human rights violations are occurring.[19] Human rights organizations and individuals were divided on the campaign, given that the invocation of human rights and humanitarian law was used to initiate war. Moreover, they expressed doubts about the campaign given that it worsened the violence against Kosovar Albanians.[20] Critics of the campaign have employed the term "humanitarian bombing" in an ironic manner to demonstrate their derision.[21][22][23]

Legality of wartime conduct

Aside from the above-discussed issue of the legal justifiability of launching the war against Serbia, the NATO bombing campaign has been criticized for exceeding the limits of lawful wartime conduct under international humanitarian law, such as the Geneva Conventions.

Former Canadian ambassador James Bissett

James Byron Bissett, former Canadian ambassador to Yugoslavia, Bulgaria, and Albania, said in 2004 that "Canada participated in a series of NATO-sanctioned war crimes against Yugoslavia". He added, "NATO and the United States claimed that more than 100,000 ethnic Albanians had been killed as the result of Serb genocide". "The forensic experts found fewer than 2,000 graves and many of the people in those graves were Serbs," Bissett claimed. According to Bissett, "There were more civilians killed in Serbia by the NATO bombing campaign."[24]

Noam Chomsky

Noam Chomsky was also highly critical of the NATO campaign and its aerial bombing in particular, where public utilities were bombed in addition to military targets.[25][26] Chomsky argued that the main objective of the NATO intervention was to integrate FR Yugoslavia into the Western neo-liberal social and economic system, since it was the only country in the region which still defied the Western hegemony prior to 1999.[27] He described bombing of the Radio Television of Serbia as an act of terrorism.[28]

See also

References
  1. O'Connell, Mary Ellen (2000). "The UN, NATO and International Law after Kosovo". Human Rights Quarterly. 22: 57–89. doi:10.1353/hrq.2000.0012.
  2. Coleman, Katharina Pichler (2007). International Organisations and Peace Enforcement: The Politics of International Legitimacy. Cambridge University Press. ISBN 978-0-521-87019-1.
  3. Erlanger, Steven (2000-06-08). "Rights Group Says NATO Bombing in Yugoslavia Violated Law". The New York Times. Retrieved 2008-11-13.
  4. Pugh, Michael Charles; Waheguru Pal Singh Sidhu (2003). The United Nations & Regional Security: Europe and Beyond. Lynne Rienner Publishers. ISBN 1-58826-232-4.
  5. Kaplan, William; Donald Malcolm McRae; Maxwell Cohen (1993). Law, Policy and International Justice: Essays in Honour of Maxwell Cohen. McGill-Queen's Press. ISBN 978-0-7735-1114-9.
  6. The North Atlantic Treaty, 4 April 1949
  7. Boggs, Carl (2001). The End of Politics: Corporate Power and the Decline of the Public Sphere. Guilford Press. p. 322. ISBN 978-1-57230-504-5.
  8. Thomas, George (1999-05-15). "NATO and international law". On Line Opinion. Retrieved 2008-11-13.
  9. "UN Press Release SG/SM/6938, 24 March 1999". Retrieved 2019-12-08.
  10. Annan, Kofi; with Nader Mousavizadeh (2012). Interventions. A Life in War and Peace. Penguin Books. pp. 92–97.
  11. Fischer, Horst; Avril McDonald (2000). Yearbook of International Humanitarian Law: 2000. Cambridge University Press. p. 27.
  12. "UN Press Release SC/6659, 26 March 1999". Retrieved 2014-07-15.
  13. Williams, Ian (1999-04-19). "Balkan Crisis Report - The UN's Surprising Support". Institute for War & Peace Reporting. Retrieved 2008-11-13.
  14. Denitch, Bogdan; Ian Williams (1999-04-08). "The Case Against Inaction". The Nation. Retrieved 2008-11-13.
  15. Henkin, Louis. 1999. Kosovo and the Law of "Humanitarian Intervention". [ed.] The American Journal of International Law. The American Journal of International Law. 10 1, 1999, Vol. 93, 4, pp. 824-828
  16. Roberts 1999, p. 102.
  17. Latawski & Smith 2003, p. 11.
  18. Latawski & Smith 2003, p. 14-15, 32.
  19. Lewis, Neil A. (4 April 1999). "A Word Bolsters Case for Allied Intervention". The New York Times.
  20. Roberts 1999, p. 103.
  21. "Kosovo and doublespeak". 15 June 1999. Archived from the original on 16 September 2002.
  22. Shank, Gregory (April 1999). "Commentary: Not a Just War, Just a War — NATO's Humanitarian Bombing Mission". Social Justice. 26 (1): 4–48. JSTOR 29767110.
  23. "Kostunica hopes for less U.S. presence". CNN. 17 December 2000. Archived from the original on 14 October 2007.
  24. "Canadian diplomat claims NATO war crimes". B92. 20 May 2004. Retrieved 21 April 2015.
  25. Chomsky, Noam (1999). The New Military Humanism: Lessons from Kosovo. Pluto Press. ISBN 978-0-7453-1633-8.
  26. Loeb, Vernon (1999-04-24). "Bit Players Become 'Frontline' States". The Washington Post. Retrieved 2008-11-13.
  27. Chomsky, Noam; Džalto, Davor (2018). Yugoslavia: Peace, War, and Dissolution. PM Press. ISBN 978-1-62963-442-5.
  28. Chomsky, Noam (19 January 2015). "Chomsky: Paris attacks show hypocrisy of West's outrage". CNN International. Retrieved 20 January 2015.

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