International Law and the War in Kosovo 19
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
International Law and
                                           
the War in Kosovo
Catherine Guicherd
On 24 March 1999, NATO launched air strikes against the Federal Republic of
Yugoslavia. The previous day, NATO Secretary General Javier Solana had
justified the action by pointing to the refusal of Yugoslav President Slobodan
Milosevic to accept the proposals negotiated in Rambouillet and to abide by
previously agreed limits on Serb Army and Special Police Forces in Kosovo.
Thus, the use of force was the only way to `prevent more human suffering and
more repression and violence against the civilian population of Kosovo'.1
The
argument, obviously, was more political than legal, as were the justifications
invoked at the time by the various NATO capitals. Apart from the debate on
the political wisdom of military action, reactions ranged from simple scepticism
to vehement condemnation of the legality of the campaign. NATO's
unilateral use of force, critics argued, was, at best, a significant departure from
classic international legality. At worst, it jeopardised the international order
based on the UN Charter which entrusts the Security Council with the
responsibility to monitor and guarantee international peace and security.
Criticising NATO's decision on legal grounds after the operations were
under way may seem beside the point. This author, for one, believes that the
Alliance's military action was necessary on moral and political grounds. The
legal question, however, is important. It goes, indeed, to the foundation of the
international order established since 1945 on the basis of the UN Charter. By
and large, despite their criticism of the UN as an organisation, the countries of
NATO have stood staunchly against `rogue' and other lawless states that
threaten to upset that order. More significant perhaps, NATO regards itself as
an alliance of democratic nations, whose political system is based on the rule of
law ­ and it has certainly been accepted as such by the new members eager to
join the `club of democracies'. Presumably, respect for the rule of law
domestically should be joined by a similar respect for the rule of law on the
international scene. However they assess the wisdom of using force in Kosovo,
the NATO nations cannot but face this difficult question of legal standards.
                                           
Catherine Guicherd is Deputy for Policy Co-ordination to the Secretary General at the NATO
Parliamentary Assembly (formerly North Atlantic Assembly), Brussels. The views expressed in
this article are strictly those of the author.
20 Catherine Guicherd
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
The solution to the dilemma, however, is not to argue, as most NATO
governments have argued, that the military action against the Federal Republic
of Yugoslavia is an exception which will not be repeated. Rather, the solution is
to acknowledge that international law has serious gaps in matters of
humanitarian intervention. Instead of looking for convoluted and unconvincing
justifications on the one hand, or issuing blatant condemnation on the
other, advocates and adversaries of the NATO operations should focus on
consolidating embryonic practices into a clear and strong body of law to allow
intervention on humanitarian grounds.
Human rights versus state sovereignty
The use of force is governed in international law by the UN Charter. At the root
of that Charter is the principle of the sovereignty and integrity of states. As a
result, the Charter sets clear prohibitions on `the threat or use of force against
the territorial integrity or political independence of any state' (article 2 §4),
allowing for two exceptions only. The first is `individual or collective selfdefence'
(art. 51), when a member state is the victim of aggression. Called to
rule on attempts by some states to justify encroachment on other states'
sovereignty by claims of self-defence, the International Court of Justice (ICJ)
has confirmed that this notion should be understood restrictively (most clearly
in its ruling Nicaragua vs. United States, 1986). In particular, the Court has
confirmed the principle set by the UN General Assembly in a landmark 1970
resolution (Resolution 2625) that assistance to either party in a civil war is
prohibited.
The second exception is when, acting under Chapter VII, the Security
Council determines `the existence of any threat to the peace, breach of the
peace, or act of aggression' (art. 39) and decides on coercive measures to bring
an end to the situation (art. 42). It is important not to equate Chapter VII and
the use of force. Chapter VII allows for many other options. For example,
Chapter VII, article 41 provides for a series of sanctions (such as various forms
of embargoes) which falls short of the use of force. Indeed, in a number of
instances in the past the Security Council has invoked Chapter VII, characterising
a situation as `a threat to peace', without calling for the use of force as a
solution.2
As the Charter system was firmly upholding the sovereignty and integrity
of states, a parallel but contradictory trend developed in international law since
1945, setting the priority on human rights. Human-rights instruments have
multiplied, giving substance to the 1948 UN Declaration of Human Rights, and
individual states have consequently undertaken legal commitments to uphold
these rights. The process has reached an even more advanced stage at the
European level, where all members of the Organisation for Security and Cooperation
in Europe (OSCE) have accepted that `the commitments undertaken
in the field of the human dimension of the [OSCE] are matters of direct and
legitimate concern to all participating States and do not belong exclusively to
the internal affairs of the State concerned'.3
International Law and the War in Kosovo 21
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
Even if such a far-reaching recognition of human-rights obligations does not
exist at the universal level, the trend goes in the same direction, with
international human-rights law being considered as entailing erga omnes
obligations (that is, obligations that states must respect in all circumstances
without any contractual exception or requirement of reciprocity) in an
increasing number of instances.
From a legal point of view, it is essential to distinguish between
international human-rights law and humanitarian law, even if the two are often
confused in public discourse. International human-rights law is an offshoot of
the UN's Declaration of Human Rights, and consists of a body of rules adopted
either at the universal level (for example, the 1966 Covenants on International
Civil and Political Rights, and on Economic and Social Rights; and the 1984
Convention against Torture), or the regional level (the 1949 European
Convention on Human Rights). These provide for a set of political or judicial
procedures to monitor respect for the rights involved. Some of these rights,
such as the prohibition of torture, have been confirmed as having erga omnes
quality. One of the weaknesses of human-rights law, however, is that, apart
from genocide ­ which is the object of a specific convention (1948 Convention
on the Prevention and Punishment of the Crime of Genocide) ­ a definition of
`gross and massive violations of human rights' is nowhere to be found. Even in
the case of genocide, which each state is obliged to `prevent' and `punish', the
Convention does not have an enforcement mechanism, and is virtually silent on
means to prevent the crime.4
International humanitarian law is much more ancient, and has evolved from
incremental efforts by theologians, lawyers and politicians to `humanise' war
by defining rules for jus in bello. Its fullest expression can be found in the
Geneva Conventions (1949) and their additional protocols (1977). Article 1,
common to all these texts, uniquely specifies that the signatories `undertake to
respect and to ensure respect for the present Convention[s] in all circumstances',
with this principle applying both to international and domestic
conflict. International humanitarian law sets the rules against which some war
crimes are prosecuted. Other war crimes susceptible to universal jurisdiction
are war crimes and crimes against humanity as consolidated in the 1950
Charter of the Nuremberg Tribunal and its judgements, later confirmed by a
UN General Assembly resolution (1968).
A major difference between international human-rights law and
humanitarian law is that respect for the former is considered the responsibility
of states, whereas violations of the latter entail the criminal prosecution of
individuals. However, in conditions combining civil war with massive
violations of human rights or genocide, international human-rights law and
humanitarian law tend more and more to intersect. Common to these two
bodies of rules is that they increasingly provide for precise sanctions for their
violation and that, slowly but surely, there is universal acceptance that this
should be so: thus the creation of the international tribunals on Former
Yugoslavia (1993) and Rwanda (1994), and of the International Criminal Court
22 Catherine Guicherd
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
(1998).5
All of these courts base their work on a combination of the material law
laid out in the Geneva Conventions, the Convention against genocide, and the
codification of war crimes and crimes against humanity. But what is also
common to international human-rights law and humanitarian law is that
however sophisticated they are becoming in laying out sanctions, they are
silent on preventive measures. Yet, it is precisely the prevention of massive
human-rights violations or humanitarian catastrophes that has become the
basis of `humanitarian intervention' practices in recent years. These practices
have not yet been codified into law. The only certainty about them is that,
increasingly, they give primacy to human rights over the sovereignty of states
when the two principles conflict.
At the root of humanitarian intervention is the recognition that populations
in danger of starvation, massacre or other forms of massive suffering have the
right to receive assistance. That principle ­ set out by the General Assembly's
Resolution 43/131 (8 December 1988), reaffirmed and specified in the General
Assembly's Resolution 45/100 (14 December 1990) ­ has been confirmed by
many subsequent Security Council resolutions.6
Therefore, the right of the
victims of natural or man-made catastrophes to receive assistance can
nowadays be considered part of customary international law.
On the basis of, and confirming, such a right, the UN Security Council has
adopted a series of resolutions that amount to the Security Council availing
itself of a right of humanitarian intervention. That self-empowerment has been
gradual, but nevertheless quite fast, developing through a number of steps:
* Resolution 688 (5 April 1991) on Iraq marked the first time that the Security
Council authorised a humanitarian relief operation by invoking a threat to
peace and international security under Chapter VII. The resolution,
however, remained ambiguous as to whether the threat to peace stemmed
from the domestic situation itself (para. 1) or from the consequences on
neighbouring countries of massive flows of refugees (Preamble). In
addition, Resolution 688 did not authorise coercive measures. Nevertheless
it was used by the Western allies to declare humanitarian enclaves off-limits
to Baghdad, and to launch Provide Comfort, a humanitarian relief operation
to benefit the Kurds in northern Iraq. Once established, however, the
humanitarian enclaves were transferred to the management of the UN,
demonstrating thereby the uneasiness of the Gulf War allies regarding their
legal grounds.7
* Resolution 770 (13 August 1992) on Bosnia-Herzegovina went further in
two ways. First, the Security Council was clear in its qualification of the
internal situation in Bosnia as a `threat to peace and international security'
(Preamble). Second, the resolution seemed to suggest that force could be
used to facilitate the provision of humanitarian relief to embattled Bosnians.
However, the phrase `all measures necessary' contained in paragraph 2 was
not interpreted by states as authorising the use of force in this case.8
International Law and the War in Kosovo 23
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
* Resolution 794 (3 December 1992) on Somalia laid out the Security Council's
clear right to intervene in support of humanitarian objectives. First, it
confirmed that the domestic situation in Somalia could be considered a
threat to peace and international security (Preamble). Second, it resolved to
authorise member states to `use all necessary means to establish as soon as
possible a secure environment for humanitarian relief operations in
Somalia' (para. 10), leading to operation Restore Hope, conducted by the US.
The logic of Resolution 794 was subsequently confirmed by Resolution 929 (22
June 1994), enabling France to lead Operation Turquoise to rescue Rwandan
refugees in eastern Zaire and Rwanda; Resolution 940 (31 July 1994) permitting
the US to put together a multinational force to restore the legitimate
government of Haiti; and Resolution 1101 (28 March 1997) allowing Italy to
assemble a multinational coalition (Operation Alba) to bring humanitarian relief
to the people of Albania under military protection.
However, the combined right of victims to assistance and the right of the
Security Council to authorise humanitarian intervention with military means
do not amount to a right of humanitarian intervention by states, individually or
collectively. Indeed, the overwhelming majority of international lawyers
consider that such a right cannot be recognised because it would violate the
Charter's prohibition of the use of force. This prohibition would hold even in
the case in which international law recognises most clearly the absolute
character of the rights protected, that is humanitarian law (the obligation of
states not only to respect, but also to ensure the respect of humanitarian
international law in all circumstances according to the Geneva Conventions).9
A fortiori, the same prohibition on the use of force must apply in cases of
`massive violations of human rights' which are much less well-defined legally
and do not fall under a specific regime of sanctions.
One therefore has to agree with French lawyer Mario Bettati that there is a
certain `hypocrisy' in international law: despite the now-recognised right of
victims to assistance, it is not possible to derive a right of states to bring this
assistance by all means, including military force.10
At best one has to consider
that states face a moral obligation which consists, for the state where a
humanitarian disaster is occurring, in refraining from obstructing relief
operations, and, for other states, in bringing assistance to those in need.
The unsatisfactory state of international law
We need not stop at Bettati's conclusion, however, for at least two reasons: the
unfinished state of international law, and its strong political coloration. As
stressed above, there is increasing recognition that human rights do not belong
exclusively to the domestic affairs of states. In addition, since the early 1990s it
has become the practice of the Security Council, supported by international
opinion, to allow military intervention to rescue the victims of domestic
conflicts. There is no reason why this situation should not evolve further in the
years to come. It is, after all, a characteristic of international law that precedent
24 Catherine Guicherd
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
is important; the law evolves as practices become acceptable to most states in
the international community.
One option to allow for such an evolution would be to advocate a new
interpretation of Article 2 §4 of the UN Charter, which prohibits `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'. It is indeed possible to argue that humanitarian assistance or rescue is
not directed against the territorial integrity or political independence of the
state in which it takes place, and even less that it is incompatible with the goals
of the UN. Rather, it would aim to ensure the respect of rights that international
law has recognised as embedding erga omnes obligations. At this stage,
however, such an interpretation, although promoted by some lawyers and
humanitarian practitioners,11
is far from universally accepted.
Specialists argue ­ with good reason ­ that a right to humanitarian
intervention by states acting independently would have to meet very strict
conditions.12
The first of these would be that the matter has been brought to the
attention of the Security Council and that it has been unable to agree, so that
the system as foreseen by the Charter has proved non-operational. It remains
essential not to undermine the primacy of the Security Council in the
maintenance of international peace and security. A second set of conditions
would be no different, in essence, from those governing the use of force in
general international law. Thus, according to well-established rules of jus ad
bellum, intervention would have to be a solution of last resort, all other means
of peaceful resolution and unarmed coercion having been exhausted and the
use of force being the only way to avert a major humanitarian disaster.
Intervention should have a limited duration and use means that are strictly
proportional to the humanitarian goal. Further, it should not be aimed at a
permanent transformation of pre-existing legal arrangements ­ for example the
secession of a province.13
Finally, to these classical conditions one might add at
least two additional criteria. First, any humanitarian military intervention
should be carried out by a group of states ­ whether they act in the context of
an alliance, a regional organisation, or a `coalition of the willing' ­ so as to
dispel the suspicion that intervention is undertaken for the sake of narrow
national interest. The second criterion would be that the participating states
should act in close coordination with the UN, demonstrate a clear readiness to
obtain post facto legitimisation by the Security Council and, when possible, to
hand the matter back to the UN. In every instance, the burden of demonstrating
the legality of military action would have to be borne by the group undertaking
the operation, the presumption being in favour of the sovereign right of states
to their political and territorial integrity.
In any case, attempts to legitimise intervention outside Security Council
resolutions should be pursued with great care. Any country or group of
countries contemplating such an intervention should consider that other states
or coalitions with less lofty motives might claim a similar right in different
circumstances. Unless intervention is regulated by a strict checklist of criteria ­
International Law and the War in Kosovo 25
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
the fulfilment of which could be submitted to the jurisdiction of the ICJ ­ one
risks enhancing the danger of confrontation between power blocs and
increasing world anarchy. This would make the planet a more dangerous and
lawless place, and would result in more, not fewer, civilian victims. It is
important that NATO countries keep this in mind when developing a rationale
for intervention in Kosovo and elsewhere.
Politics is present in international law at another level: except in cases of
self-defence, the current international legality of the use of force is determined
by the UN Security Council, where the five veto-wielding permanent members
have the final word. This makes the legality of the use of force ultimately
dependent on the political atmosphere prevailing at any moment among those
five powers. In `fair weather conditions', such as prevailed in the early 1990s,
agreement among the five permanent members could easily be reached,
permitting action in Iraq, Somalia, Bosnia and Rwanda (at least China
abstained rather than wielding its veto when it could not agree). However,
when these relations deteriorate, as is the case at the end of the 1990s,
international law becomes ineffective. From the point of view of the victims, the
situation is unacceptable: why should they be less entitled to protection when
the permanent members are unable to agree? It would thus seem necessary to
review the composition and rules governing the Security Council in such a way
as to protect international law from the vagaries of the relationship among its
members. The large states of Asia, Africa and Latin America have long
demanded such a review, pointing to the inadequacy of a structure inherited
from the Second World War. Because of the sensitivity of the issue, no
agreement has been reached despite long and detailed discussions in UN
circles in the mid-1990s. Nevertheless, two reforms seem overdue: increasing
the representation of Asia, Africa and Latin America on the Security Council;
and replacing the right of veto by a system of qualified majority voting. If
three- quarters of the members of the Council approved a military action, that
action could legitimately be considered as enjoying the support of the
international community, regardless of the possible disagreement of one of the
current permanent members.
Intervention in Kosovo: the legal argument
Most of the NATO debate on the use of force against Yugoslavia took place
between the Security Council vote on Resolution 1199 on 23 September 1998
and NATO's brandishing the threat of force on 12 October. That threat took the
form of an Activation Order (ACTORD) authorising the Supreme Allied
Commander in Europe (SACEUR) to launch air strikes within four days if
Milosevic did not comply with the provisions of the UN resolution.14
Little was
added to the debate when NATO actually launched its attack in March 1999.
Resolution 1199 was spurred by a major sweep of Yugoslav forces across
Kosovo in summer 1998, under the guise of fighting back the Kosovo
Liberation Army (KLA). That sweep had resulted in the eviction from their
homes of more than 250,000 Kosovar Albanians, some 80,000 of whom sought
26 Catherine Guicherd
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
refuge in neighbouring countries or regions. The resolution mandated the
cessation of acts of violence against civilians and the withdrawal of Yugoslav
security units used for civilian repression; the safe return of refugees and
displaced persons; and the free and unimpeded access of humanitarian relief
organisations to persons in need. It also condemned acts of terrorism
performed in pursuit of political goals.
NATO's threat to use force coincided with a trip by US Special Envoy
Richard Holbrooke to Belgrade, during which he extracted from Milosevic
agreement for the OSCE to deploy a monitoring mission in Kosovo (the
`Kosovo Verification Mission') and for NATO to operate an aerial surveillance
system over the province (the so-called `Eagle Eye' operation). By all accounts,
the NATO threat was instrumental in securing that agreement.
Even though, by autumn 1998, all NATO nations agreed that there was a
moral and political imperative to act, the members of the Alliance could not
easily and unanimously find a legal ground for military action against Serbia.
Six countries at least ­ Belgium, France, Germany, Greece, Italy and Spain had
political and legal misgivings reflecting the unfinished state of international
law concerning humanitarian intervention.15
One of the most assertive proponents of military action was the US.
Washington's argument, however, was based more on political than legal
arguments. Indeed, answering a journalist's question on 8 October, Secretary of
State Madeleine Albright said that she did not think she had to answer
international legal questions in detail.16
When pressed to argue on legal
grounds, US officials called upon existing UN resolutions ­ Resolution 1160 (31
March 1998) and especially Resolution 1199. That Serbian forces were in blatant
violation of that resolution's requirements and the resolution being based on
Chapter VII of the UN Charter provided sufficient ground for NATO to
undertake military action, Washington argued.17
Without rejecting the US interpretation, UK Foreign Office lawyers were
seeking legal grounding in the `right of intervention' that they believed had
been pioneered by the 1991 Gulf War allies when they declared the no-fly
zones over Iraq in the absence of a Chapter VII resolution.18
However, even if
the declaration of no-fly zones by the allies did not raise protests at the time, it
still did not set a precedent for the recognition of a new `right of intervention'.19
The then German Foreign Minister, Klaus Kinkel, declared himself
unsatisfied with the US and British arguments, and sought alternative legal
ground. Kinkel first pointed out that the reference to Chapter VII in Resolutions
1160 and 1199 was insufficient in that Russia and China both had accompanied
their votes by legally valid declaratory statements spelling out that the
resolutions should not be interpreted as authorising the use of force. Indeed, on
Resolution 1199 China had abstained on the ground that the text constituted
encroachment on Yugoslavia's sovereignty ­ thereby preventing any kind of
action, military or otherwise ­ while Russia had pointed out that both
resolutions stated that if they were not complied with, the Council would have
to consider further action. No measures of force and no sanctions were being
International Law and the War in Kosovo 27
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
introduced at this stage by the Council.20
Both resolutions contain important
clauses in this respect. In Resolution 1160, the Security Council `emphasises
that failure to make constructive progress towards the peaceful resolution of
the situation in Kosovo will lead to the consideration of additional measures'
(para. 19); in Resolution 1199, the Council `decides [that] should the concrete
measures demanded in this resolution and resolution 1160 (1998) not be taken,
[it will] consider further action and additional measures to maintain or restore
peace and stability in the region' (para. 16). Resolutions including such
wording have usually been interpreted as requiring further action by the
Security Council to allow military action. Such was the case in Bosnia where a
long series of texts was considered necessary between the mandating of
humanitarian assistance, and the declaration of safe havens and the
authorisation of their military enforcement.21
Kinkel tried to develop a different argument, relying on a cluster of
conditions that combined, in his view, to make a military threat legitimate.
These conditions included the inability of the Security Council to act in what
was an emergency situation; the fact that a military threat was in the `sense and
logic' of Resolutions 1160 and 1199 (although, he conceded, the latter did not
provide direct legal ground); and the particular high standards for the
protection of human rights reached by European states in the OSCE context, in
particular regarding the protection of minorities.22
The position of the incoming
Social Democratic Party (SPD)­Green German government, taking over at the
time, was less clear. Then-SPD Chairman Oskar Lafontaine declared that the
new majority had endorsed the position of the outgoing government, without
specifying whether this applied to the legal grounding or the political
decision.23
Chancellor Gerhard Schröder contradicted himself to some extent by
arguing that, in referring to UN Resolution 1199, NATO was `not [giving] itself
a mandate, it [was] acting within the reference framework of the United
Nations'; yet at the same time Schröder reasserted the `UN monopoly on the
use of force and the responsibility of the Security Council for the preservation
of world peace and international security'.24
Incoming Defence Minister Rudolf
Scharping came perhaps closest in spirit to Kinkel's argument in stating that he
considered it essential that international law be further developed so that
massive human-rights violations could be considered as legitimate ground for
military intervention.25
Like the former German Foreign Minister, NATO Secretary General Javier
Solana relied on a cluster of reasons to justify the threat of military action in
October 1998. These reasons included:
* the failure of Yugoslavia to fulfil the requirements set out by Resolutions
1160 and 1199, based on Chapter VII of the UN Charter;
* the imminent risk of a humanitarian catastrophe, as documented by the
report of the UN Secretary-General Kofi Annan on 4 September 1998;
* the impossibility to obtain, in short order, a Security Council resolution
mandating the use of force; and
28 Catherine Guicherd
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
* the fact that Resolution 1199 states that the deterioration of the situation in
Kosovo constitutes a threat to peace and security in the region.26
These reasons are close to those listed by the government of the Netherlands,
which also added a reference to a `checklist' for military action adopted by the
Dutch parliament in 1994. That `checklist' in turn refers back to a parliamentary
motion offered in 1991 by the late MP Martin van Traa stating that `gross
violations of human rights, such as genocide, can be a reason for military
intervention by the international community' (the text does not specify whether
that intervention must be based on a UN mandate).27
The French government was equally torn. On 7 October, answering a
parliamentary question, Foreign Minister Hubert Védrine responded that a
possible military action had to be authorised by the Security Council, although
he had earlier declared to the press that `it [was] open to interpretation'
whether Resolution 1199 was moving NATO towards military action.
Addressing the Senate on 17 March 1999, Védrine seemed more convinced that
Resolution 1199, taken in the context of Chapter VII, warranted military
action.28
As for French President Jacques Chirac, in a statement reminiscent of
Chancellor Schröder's, he had declared on 6 October that France:
considers that any military action must be requested and decided by the Security
Council. In this particular case, we have a resolution which does open the way to the
possibility of military action. I would add, and repeat, that the humanitarian
situation constitutes a ground that can justify an exception to a rule, however strong
and firm it is. And if it appeared that the situation required it, then France would not
hesitate to join those who would like to intervene in order to assist those that are in
danger.29
Unlike Kinkel, Chirac did not attempt to bridge the legal gap between the
`resolution which opens the way to the possibility of military action' and
military action itself. Speaking at a seminar a few days later, a senior official
from the Foreign Ministry confirmed the French misgivings about using such
justifications as the right to self-defence or the right to humanitarian
intervention as a basis for a military action in Kosovo.30
Even greater uncertainty reigned in the position of the Italian government.
In late September 1998, then Defence Minister Benjamino Andreatta hinted that
the danger of humanitarian catastrophe caused by Belgrade created the
`conditions for the application of article 51', meaning, presumably, the right to
collective self-defence.31
According to the UN Charter, however, this right only
applies to states ­ not entities such as Kosovo. Speaking to parliament a few
days later, then Prime Minister Romano Prodi said that, first, there was no
ground for military action in Kosovo as all means to reach a peaceful solution
had not been exhausted and, second, that military action would have to be
legitimised by the Security Council.32
But by 12 October, no further objection
was heard from the Italian government regarding the NATO decision to
threaten the use of force.
International Law and the War in Kosovo 29
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
The NATO allies' position was vehemently rejected by Russia and China.
Speaking at a time when the NATO allies were studying their military and
diplomatic options in response to the increasing crackdown by Serb forces
against the KLA and Albanian civilians (the Racak massacre was discovered on
15 January 1999), the Russian Ambassador to the UN, Sergei Lavrov, asserted
that only the UN Security Council can `decide the use of force or authorise
resort to the use of force under the authority of the UN Charter'. He claimed
that to invoke `a humanitarian crisis in a country as a sufficient reason for a
unilateral armed intervention' would be `unacceptable and contrary to the
foundations of the contemporary system of international relations and to the
Charter of the United Nations'.33
In October 1998, the Chinese Foreign Minister,
Tang Jiaxuan, had said his government `resolutely [opposed] the use of force or
the threat to use force in international relations', adding that it was `disturbed'
by the fact that `some countries are now threatening to use force against
Yugoslavia'.34
The positions of both countries were confirmed by their votes on
UN Resolution 1203 (24 October 1998), which endorsed the agreement reached
by Holbrooke and Milosevic on 12 October. Both abstained, on the ground that
the resolution left some room for the use of force.35
They probably were most
concerned about paragraph 9 which stipulates that `action may be needed to
ensure [the OSCE monitors'] safety and freedom of movement'. This would be
consistent with NATO's own interpretation which saw in this clause the legal
authorisation to rescue the monitors by force. What was clear, however, from
Russia's and China's voting statements on Resolution 1203 is that they opposed
the use of force in Kosovo, whatever the scenario. Obviously, they could only
reassert this position more forcefully when NATO actually resorted to force.
Russia's Foreign Minister Igor Ivanov called the bombings `a crude violation of
the UN Charter' and `an act of open aggression against a sovereign member
state of the UN', as his government announced that it interrupted all
cooperation with NATO in the context of the Founding Act and the Partnership
for Peace.36
Chinese officials condemned the NATO operation in even stronger
terms, calling it `unacceptable' and warning of `serious consequences' if the
bombing did not stop immediately.37
Conclusion
International law governing the right of humanitarian intervention is
incomplete. International practice has evolved swiftly during the 1990s. Yet the
incipient political and moral consensus that intervention is sometimes
necessary to prevent human-rights violation on a major scale has not been
formalised into a set of rules of international law. It is now urgent that this
consensus should be transformed into law.
The position advocated by Kinkel looks the most promising, although it has
several weaknesses. Its major shortcoming, which is also apparent in a number
of statements by German and other Western officials, is the assumption that
Kosovo is a special case and should not be considered as constituting a
precedent.38
Intervention should be the exception rather than the rule. But
30 Catherine Guicherd
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
arguing that Kosovo does not constitute a precedent undermines the argument
that it is possible to develop new legal rules for intervention relying on a
combination of general international law and specific rules valid in the
European area.
Legally, it is debatable whether the principles established and agreed within
the OSCE justify rules for humanitarian intervention that differ from those
applied in other parts of the world. Positively, it can be argued that OSCE
human-rights principles allow states to interfere with one another's affairs well
beyond what general international law permits. Negatively, one may object
that fundamental human rights that entail erga omnes obligations (the prohibition
of torture, of genocide, of mass killings and so on) are no more strongly
protected in Europe than elsewhere, as rules prohibiting their violation have
universal validity.
Politically, developing specific rules for humanitarian intervention in the
European area would have the advantage of enabling European nations to
bypass Chinese obstruction in the Security Council. But the agreement of
Russia would still have to be obtained. Indeed, the subject of humanitarian
intervention may be a good basis for re-starting the interrupted NATO­Russia
dialogue once the fallout of the Kosovo crisis has been absorbed. The goal then
would be to define a set of agreed rules so that the next crisis is not again a
cause for a major rift between the Atlantic Alliance and Russia, but rather an
opportunity for common action.
Whether or not specific rules for intervention without a Security Council
resolution are developed at the European level, a parallel effort must be carried
out at the global level. In both cases, the principles for intervention should
come close to the criteria spelled out above, the original premise being that the
UN Security Council should keep its primacy in the guaranteeing of international
peace and security. Otherwise, there will be increasing temptations for
states or groups of states to take the law into their own hands. At some stage,
should all OSCE states agree on common rules for intervention that would be
more `advanced' than the global equivalent (in that they would be more
protective of human rights), the Security Council might grant a general
authorisation for European states to enforce those specific rules in the OSCE
area. But such a prospect belongs to the more distant future.
International Law and the War in Kosovo 31
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
Acknowledgement
The author would like to thank Almut
Kaleschke, research assistant at the
NATO Parliamentary Assembly, for her
help in researching this article and for
her insightful comments.
Notes
1
Press statement by Dr Javier Solana,
Secretary General of NATO, 23 March
1999 (NATO Press Release (1999)040);
see http://www.nato.int/docu/pr/
1999/p99-040e.htm
2
For example, in reference to the 1965
Indo-Pakistani conflict; during the 1967
Arab­Israeli `Six Day War'; in the 1980­
88 Iran­Iraq conflict; and earlier in
resolutions related to the issues of
Palestine, Rhodesia, apartheid in South
Africa and so on; Jean Combacau and
Serge Sur, Droit international public, 3rd
edn (Paris: Monchrestien, 1997), p. 645.
3
Helsinki Summit Declaration, 1992,
paragraph 8.
4
Malcom Shaw, International Law, 4th
edn (Cambridge: Cambridge University
Press, 1997), p. 210.
5
Ibid., pp. 471­72.
6
A study by French lawyer Mario Bettati
lists 65 resolutions of the Security
Council between April 1991 and
December 1995 insisting that warring
states should allow access to
humanitarian organisations, urging
parties to a conflict to refrain from
obstructing humanitarian relief,
demanding at times that they facilitate
such relief, condemning actions
hampering assistance, and so on. These
resolutions concern Iraq, Liberia,
Angola, Georgia, Nagorno-Karabakh,
Mozambique, Yemen, Somalia, Rwanda,
and former Yugoslavia; see Mario
Bettati, Le droit d'ingérence (Paris: Odile
Jacob, 1996) pp. 329­40.
7
Pierre-Marie Dupuy, `Aprs la guerre
du Golfe ...', Revue générale de droit
international public, 1991, pp. 629, 630.
8
Arthur Paecht, Humanitarian
Intervention between Politics and
International Law, Draft General Report,
North Atlantic Assembly, Civilian
Affairs Committee, 20 March 1999, pp.
14­15.
9
Laurence Boisson de Chazournes and
Luigi Condorelli, `Quelques remarques 
propos de l'obligation de "respecter et
faire respecter" le droit international
humanitaire "en toutes circonstances"',
Mélanges Pictet (Genve/La Haye:
CICR/Nijhoff, 1984), pp. 17­36;
Combacau and Sur, Droit international
Public, p. 666; Olivier Corten and Pierre
Klein, Droit d'ingérence ou obligation de
réaction? (Bruxelles: Bruylant, 1996) pp.
221­51; Yves Sandoz, `Droit ou devoir
d'ingérence, droit  l'assistance; de quoi
parle-t-on?', Revue internationale de la
Croix-Rouge, no. 795, May­June 1992, pp.
225­37.
10
Bettati, Le droit d'ingérence, p. 171.
11
See for example, Fernando Teson,
Humanitarian Intervention. An Inquiry into
Law and Morality (New York,
Transnational Publishers, 1988); Bernard
Kouchner, Le malheur des autres (Paris:
Odide Jacob, 1991); Anthony d'Amato,
`Trashing Customary International Law',
American Journal of International Law,
1987, pp. 101­5.
12
See, for example, the efforts to codify
humanitarian intervention by the Subcommittee
on the International
Protection of Human Rights by General
International Law of the International
Law Association, 56th Conference, New
Delhi, 1974, as discussed by Richard B.
Lillich, `Humanitarian Intervention
Through the United Nations: Towards
the Development of Criteria', Zeitschrift
für ausländisches und öffentliches Recht,
vol. 53, no. 3, 1993, pp. 557­75.
13
Combacau and Sur, Droit international
public, pp. 628­29; Dominique Carreau,
Droit international public, 5th edn (Paris:
Pédone, 1997), pp. 543­44.
14
The deadline was then postponed
32 Catherine Guicherd
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
twice (17 October; 27 October) and then
temporarily suspended, following more
positive developments on the ground.
ACTORD remained in force,
nevertheless.
15
Michael Binyon and James Bone,
`Yeltsin Veto Threat Stalls Kosovo
Raids', The Times, 7 October 1998;
Michael Evans, `NATO Puts Airstrike
Decision On Hold', ibid., 8 October 1998;
`Jean-Pol Poncelet: une `mission
humanitaire'', Libre Belgique, 8 October
1998; Michael Evans and Tom Walker,
`NATO Bombers on Alert for Order to
Hit Serbs', The Times, 12 October 1998.
16
Press Conference of Secretary of State
Madeleine K. Albright, London, UK, 8
October 1988; see http://
secretary.state.gov/www/statements/
1998/981008a.html
17
Press Conference of Secretary of State
Madeleine K. Albright, Brussels,
Belgium, 8 October 1998; see http://
secretary.state.gov/www/statements/
1998/981008.html
18
Binyon and Bone, `Yeltsin Veto
Threat'.
19
For details see Paecht, Humanitarian
Intervention, pp. 15­16.
20
Security Council, Press Release SC/
6577, 3930th Meeting, 23 September
1998.
21
Resolutions 770 (1992), 819 (1993) and
824 (1993), 816 (1993) and 836 (1993)
respectively. See Paecht, Humanitarian
Intervention, p. 14.
22
Claus Gennrich, `Im Angesicht der Not
im Kosovo baut Kinkel neue juristische
Brücken', Frankfurter Allgemeine Zeitung,
14 October 1998; also `Bonner Kabinett
stimmt Nato-Einsatz im Kosovo zu',
ibid., 13 October 1998; Interview with
Foreign Minister Klaus Kinkel, SüdwestRundfunk
for the programme `SWR 1 Tagesgespräch',
24 September 1998; see
http://www.bundesregierung.de
23
`Bonner Kabinett stimmt Nato-Einsatz
im Kosovo zu', Frankfurter Allgemeine
Zeitung, 13 October 1998.
24
`Schroeder Addresses Bundestag on
Kosovo', Foreign Broadcast Information
Service, Western European Union 98-
289, translated from ZDF broadcast, 16
October 1999.
25
Bundespresse Amt Dokumentation,
Frankfurter Allgemeine Zeitung, 17
October 1998; see http://www.
bundesregierung.de/OS/themenf.html
26
Summary of the North Atlantic
Council consultations of 9 October 1998
by NATO Secretary General Javier
Solana, as given in the statement of
Foreign Minister Dr Klaus Kinkel
following the special session of the
Bundestag in Bonn on 16 October 1998;
see http://www.bundesregierung.de/
OS/themenf.html
27
Report signed by the Minister of
Foreign Affairs, J. J. van Aartsen and the
Minister of Defense, F. H. G. de Grave,
to the presidents of the Tweede Kamer
and the Eerste Kamer, 8 October 1998;
Dutch version at http://
www.minbuza.nl/factsheets/niews/
147.htm
28
Reuters, 23 September 1998, reprinted
in the NATO Press Service, Latest News;
Assemblée nationale, Compte-rendu
analytique, Questions au gouvernement,
mercredi 7 octobre 1998, 1re séance, p.
6; Sénat, Commission des Affaires
étrangres, défense et forces armées,
compte-rendu de la séance du 17 mars
1999, Audition de M. Hubert Védrine,
Ministre des Affaires étrangres.
29
Press conference at Palais Vecchio,
Florence, 6 October 1998, quoted by
Patrice Despretz, `Le droit international
et les menaces d'intervention de l'OTAN
au Kosovo', Actualité et droit
international, 1998; see http://
www.ridi.org/adi/1998/199811a4.html
30
Friederike Bauer, `Mehr Druck vom
Sicherheitsrat verlangt', Frankfurter
Allgemeine Zeitung, 26 October 1998.
31
Agence France Presse, reprinted in
NATO Press Service, Latest News, 28
September 1998.
International Law and the War in Kosovo 33
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies
32
Associated Press, ibid., 8 October 1998.
33
Declaration of Ambassador Sergei
Lavrov, AFP, quoted by Service de
Presse de l'OTAN, Dernires nouvelles, 22
January 1999.
34
Quoted by Tim Young, Kosovo: The
Diplomatic and Military Options, House of
Commons Library, Research Paper 98/
93, 27 October 1998, p. 14.
35
Security Council, Press Release SC/
6588, 3937th Meeting, 24 October 1998.
36
Quoted by RFE/RL Newsline, 25 March
1999.
37
`Beijing Assails Air Raids', International
Herald Tribune, 26 March 1999, p. 5.
38
Statement of Foreign Minister Dr
Klaus Kinkel following the special
session of the Bundestag, 16 October
1998, Bonn; see http://
www.bundesregierung.de/OS/
themenf.html; Statement by incoming
Foreign Minister Dr Joschka Fischer to
the Bundestag, 16 October 1998, FBISWEU-98-289,
translated from ZDF
broadcast, 16 October 1999. For other
French and German positions, see Bauer,
`Mehr Druck vom Sicherheitsrat
verlangt'.
34 Catherine Guicherd
Survival, vol. 41, no. 2, Summer 1999, pp. 1934
 International Institute for Strategic Studies