Abstract

Gabor Sulyok

The Theory of Humanitarian Intervention With Special Regard to NATO's Kosovo Mission

The aim of this paper is to outline the theory of the so-called "humanitarian intervention" and to discuss the legal concerns relating to NATO's Operation Allied Force, thus providing a background for the further discussion of Kosovo's present and future.

The theory of humanitarian intervention is highly controversial, but could be the only way to give a legitimate ground to NATO's Kosovo mission. Lauterpacht, a famous international lawyer, outlined the doctrine of humanitarian intervention by saying that "there is general agreement that, by virtue of its personal and territorial supremacy, a State can treat its own nationals according to discretion. But there is a substantial body of opinion and of practice in support of the view that there are limits to that discretion and that when a State renders itself guilty of cruelties against and persecution of its nationals [emphasis added by Lauterpacht] in such a way as to deny their fundamental human rights and to shock the conscience of mankind, intervention in the interest of humanity is legally permissible."

Humanitarian intervention is a relatively new and a highly debated phenomenon in international law. It is "new", since its very existence is directly linked to the existence and international acceptance of human rights; but it is "debated" too, because many international lawyers deny its raison d'être.

It might be seen as an irony of fate, that the first humanitarian interventions also took place in "Europe's barrel of gunpowder" ­ the Balkans ­ with the aim of protecting religious minorities against the atrocities of the Ottoman Empire in the mid and late 19th Century. In those instances of humanitarian intervention the European Powers were acting in concert. A little more than one and a half centuries later the most (legally) debated humanitarian intervention in history took place in the Balkans ­ in Kosovo ­ as well, also carried out by a powerful group of Powers: NATO.

However, since the time of the first humanitarian interventions many things have changed. The world, but mostly Europe has suffered from two devastating world wars, which resulted in major changes in international law as well. Following the adoption of the United Nations Charter on 26 June 1945 a new era began in international law. In this new era the former principle of ius ad bellum (the ısacredı right of starting a war) ceized to exist and the relations within the international community of nations were put on the basis of peace and friendship. The Member States of the United Nations undertook such solemn obligations as not to use force against and not to interfere with the internal affairs of any other State, and they also obliged themselves to settle their disputes by peaceful means as well as respecting each other's sovereignity.

There are only two exceptions enacted in the UN Charter from the obligation not to use force. The UN Security Council acting under Article 42 of the Charter may give authorization to use force whenever it sees it fit, and according to Article 51 of the Charter it is every States' inherent right to defend itself against aggression.

According to the view of some experts, humanitarian intervention may be an other exception from the general rules referred to above.

Humanitarian interventions (e.g. in Rwanda or Somalia), that took place prior to NATOıs Kosovo action, but during the "UN era" did not raise legal concerns, since the States carrying out these actions acted with the approval of the UN Security Council. In the case of Kosovo NATO did not have and could not obtain this kind of authorization, so it used force as an answer to the urging humanitarian necessities without being in possession of the necessary approval by the UN Security Coucil. This fact by itself would mean that NATO violated the most sacred rules of international law embodied in the UN Charter, thus having been an aggressor, and as a consequence the Federal Republic of Yugoslavia did have the right for self-defense according to Article 51 of the UN Charter.

The serious charges concerning NATO's Operation Allied Force can be declined ­ at least to some extent ­, and the mission itself can be explained and even defended by the following:

1. NATO's mission was really a humanitarian intervention and it met every criteria of this category.

2. The atrocities carried out by the regular and paramilitary forces of the Federal Republic of Yugoslavia were in fact a form of "ethinc cleansing" and thus constituted an international crime of genocide.

3. The UN Security Council failed to fulfill its primary obligation in the field of maintaining peace and security, but gave "implicit" or "ex post" authorization to NATO in its previous or subsequent resolutions.

4. In certain cases, but especially if there is a "gap" in law, justice prevails over the rule of law. (Summum ius summa iniuria.)

5. Sovereignity in its "absolute" sense, due to the development of international law and globalization, is not applicable any more. Although the so-called "globalization theory" is highly controversial and often debated, it can be supported by a number of practical and even legal arguements and examples.

6. International norms having the characteristics of ius cogens are in constant change as well. Most recently the respect for human rights emerged as such a norm, which may prevail over some traditional erga omnes norms, such as the obligation not to use force or non-intervention. (Lex posteriori derrogat lex priori.)

7. There are certain legal questions regarding the right for self-determination of Kosova-Albanians, that are worth mentioning as well.

8. One must not forget about the security environment of NATO and of Europe as a whole either. According to a rather pragmatic approach, a conflict, that ­ according to the UN Security Council ­ posed a treat to international peace and security simply could not be allowed at the ıdoorstepı of the Alliance and of the European Union.

9. Finally, following the end of the Cold War not only the global and regional security environment, but also NATO has changed and is changing constantly. The Alliance is facing new, never before seen security challenges and must become able to give appropriate answers to these. Thus the need for so-called "out-of-area" or "non-Article 5" missions has raised in the near past, bringing along more problems to be solved by NATO.

(The above mentioned points as well as the so-called "Yugoslavia Cases" (before the International Court of Justice) are to be discussed in details during the presentation.)

As a conclusion one can state, that at present the discussion regarding NATO's mission can be continued into eternity, but simply cannot be put to an end. Whatever the legal classification of Operation Allied Force is, one cannot deny that it paved the way to the fully legitimate missions of KFOR and UNMIK, which ­ despite the present difficulties ­ will hopefully bring lasting peace and stability to the region.

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