Legitimacy of the NATO bombing of Yugoslavia

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The legitimacy under international law of the 1999 NATO bombing of the Federal Republic of Yugoslavia has been questioned by various parties. The UN Charter is the foundational legal document of the United Nations (UN) and is a primary cornerstone of public international law because UN member states have legally bound themselves to uphold it. At the same time, all member states of the North Atlantic Treaty Organization (NATO) are also member states of the UN, and thus they must also comply with their obligations under the North Atlantic Treaty, the foundational document of NATO.

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.

Opponents of the bombing have argued that NATO targeted non-military buildings, resulting in civilian casualties.[1][2]

Legal justifiability of launching the war[edit]

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[edit]

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.[3]

The UN Charter[edit]

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.[4]
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.[4]

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[edit]

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.[5]

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.[6] 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.[citation needed]

The Vienna Convention[edit]

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.[7]

International criticism NATO actions[edit]

Kofi Annan[edit]

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."[8][9][10]

Russian attempt to end the bombing[edit]

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.[11][12][13]

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).[14]

Jus in bello[edit]

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

Former Canadian ambassador James Bissett[edit]

James Byron Bissett, former Canadian ambassador to Yugoslavia, Bulgaria, and Albania, stated that "Canada participated in a series of NATO-sanctioned war crimes against Yugoslavia". He stated that "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 said. "There were more civilians killed in Serbia by the NATO bombing campaign."[15]

Noam Chomsky[edit]

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.[16][17] He viewed the bombing of the Radio Television of Serbia as an act of terrorism.[18]

Humanitarian bombing[edit]

Humanitarian bombing is a phrase referring to the 1999 NATO bombing of the Federal Republic of Yugoslavia (24 March – 10 June 1999) during the Kosovo War used by its opponents as an ironic oxymoron in response to the stated goal of NATO to protect Kosovo Albanians, and later about other military interventions stressing human rights reasons. The closely related phrase humanitarian war appeared at the same time.

The phrase (tough appeared in a 4 April 1999 New York Times article about the Kosovo War and attributed to Ruth Wedgwood[19][clarification needed]) is often ascribed to Václav Havel,[20] then President of the Czech Republic, strong proponent of the intervention and critic of Slobodan Milošević's regime. However, Havel forcefully refuted his connection to the phrase as such in May 2004, going as far as to call MEP candidate Richard Falbr (who criticised him for coining it) a liar: "Of course not only I haven't invented the obscure term 'humanitarian bombing', but also never even used it and could not have used it, since I have – I dare say – good taste."[21] Later on Havel marked the phrase as „a hokum which I could never have said not even in insanity.“[22]

It is generally pointed (as Falbr did in response) to Havel's article for the French newspaper Le Monde published on 29 April 1999,[23] where he used the two parts of the phrase in looser connection:

  • French: "Dans l'intervention de l'OTAN au Kosovo, je pense qu'il y a un élément que nul ne peut contester: les raids, les bombes, ne sont pas provoqués par un intérêt matériel. Leur caractère est exclusivement humanitaire: ce qui est en jeu ici, ce sont les principes, les droits de l'homme auxquels est accordée une priorité qui passe même avant la souveraineté des Etats. Voilà ce qui rend légitime d'attaquer la Fédération yougoslave, même sans le mandat des Nations unies."
  • English: "I believe that during intervention of NATO in Kosovo there is an element nobody can question: the air attacks, the bombs, are not caused by a material interest. Their character is exclusively humanitarian: What is at stake here are the principles, human rights which are accorded priority that surpasses even state sovereignty. This makes attacking the Yugoslav Federation legitimate, even without the United Nations mandate."
  • Czech: "Domnívám se, že během zásahu NATO na Kosovu existuje jeden činitel, o kterém nikdo nemůže pochybovat: nálety, bomby, nejsou vyvolány hmotným zájmem. Jejich povaha je výlučně humanitární:[24] to, co je zde ve hře, jsou principy, lidská práva, jimž je dána taková priorita, která překračuje i státní suverenitu. A to poskytuje útoku na Jugoslávskou federaci legitimitu i bez mandátu Spojených národů."

The phrases "humanitarian bombing" and "humanitarian war" quickly found their way into media. Opponents of the war criticised them as a war propaganda[25][26] or employed them as an irony. They are also used in an ironic sense about later war campaigns.

References[edit]

  1. ^ Coleman, Katharina Pichler (2007). International Organisations and Peace Enforcement: The Politics of International Legitimacy. Cambridge University Press. ISBN 978-0-521-87019-1.
  2. ^ Erlanger, Steven (2000-06-08). "Rights Group Says NATO Bombing in Yugoslavia Violated Law". The New York Times. Retrieved 2008-11-13.
  3. ^ Pugh, Michael Charles; Waheguru Pal Singh Sidhu (2003). The United Nations & Regional Security: Europe and Beyond. Lynne Rienner Publishers. ISBN 1-58826-232-4.
  4. ^ a b 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.
  5. ^ The North Atlantic Treaty, 4 April 1949, [1]
  6. ^ 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.
  7. ^ Thomas, George (1999-05-15). "NATO and international law". On Line Opinion. Retrieved 2008-11-13.
  8. ^ "UN Press Release SG/SM/6938, 24 March 1999". Retrieved 2014-07-15.
  9. ^ Annan, Kofi; with Nader Mousavizadeh (2012). Interventions. A Life in War and Peace. Penguin Books. pp. 92–97.
  10. ^ Fischer, Horst; Avril McDonald (2000). Yearbook of International Humanitarian Law: 2000. Cambridge University Press. p. 27.
  11. ^ "UN Press Release SC/6659, 26 March 1999". Retrieved 2014-07-15.
  12. ^ Williams, Ian (1999-04-19). "Balkan Crisis Report - The UN's Surprising Support". Institute for War & Peace Reporting. Retrieved 2008-11-13.
  13. ^ Denitch, Bogdan; Ian Williams (1999-04-08). "The Case Against Inaction". The Nation. Retrieved 2008-11-13.
  14. ^ 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
  15. ^ "Canadian diplomat claims NATO war crimes". B92. 20 May 2004. Retrieved 21 April 2015.
  16. ^ Chomsky, Noam (1999). The New Military Humanism: Lessons from Kosovo. Pluto Press. ISBN 978-0-7453-1633-8.
  17. ^ Loeb, Vernon (1999-04-24). "Bit Players Become 'Frontline' States". The Washington Post. Retrieved 2008-11-13.
  18. ^ Chomsky, Noam (19 January 2015). "Chomsky: Paris attacks show hypocrisy of West's outrage". CNN International. Retrieved 20 January 2015.
  19. ^ "The Rationale: A Word Bolsters Case for Allied Intervention" by Neil Lewis, The New York Times, 4 April 1999
  20. ^ "Nous sommes tous des Jimmy Carter, 2002" (in French). Archived from the original on 20 November 2006. Retrieved 9 October 2006.
  21. ^ Václav Havel, K Falbrově lži, Mladá fronta DNES 24 May 2004: Obskurní pojem "humanitární bombardování" jsem samozřejmě nejen nevymyslel, ale nikdy ani nepoužil a použít nemohl, neboť mám – troufám si tvrdit – vkus.
  22. ^ Michal rudý (2014-03-04), VÁCLAV HAVEL o humanitárním bombardování, retrieved 2016-10-02
  23. ^ "Moi aussi je me sens albanais" (paid archive, but the article's first three sentences are provided as free extract) (in French). Le Monde. Retrieved 2008-09-09.
  24. ^ This is the shortened Czech translation used by Falbr and often quoted online. Translations of excerpts in the Czech media at that time used also other versions like "výhradně" or "humanitní".
  25. ^ "Kosovo and doublespeak, 1999". Archived from the original on 2002-09-16. Retrieved 2006-10-09.
  26. ^ "CNN interview with Vojislav Koštunica, 2000". Archived from the original on 14 October 2007. Retrieved 2006-10-09.

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