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The Kosovo Crisis and Nato's Application of Armed Force Against the Federal Republic of Yugoslavia

Published online by Cambridge University Press:  17 January 2008

Dino Kritsiotis
Dino Kritsiotis
Affiliation:
University of Nottingham. Anthony Aust, Nigel White and Michael C. Wood made helpful comments on a previous draft of this article and their suggestions are much appreciated. The contents of the article formed the basis of seminar presentations at the Department of Law in the University of Durham (19 Nov. 1999) and the Department of War Studies at King's College, University of London (26 Nov. 1999).
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Extract

In the fifth week of NATO's 78–day aerial intervention in the Federal Republic of Yugoslavia (FRY), the FRY initiated proceedings in the International Court of Justice against ten of its member States which it accused of violating the principles of international law in relation to the jus ad bellum and the jus in bello.1 NATO's action, known as Operation Allied Force, had commenced on the night of 24 March 1999 when cruise missiles were directed on Serbian targets located in the Kosovan capital of Pristina and in the Republic's capital of Belgrade.2 This robust application of armed force came on the eve of the 50th anniversary of NATO, an organisation which was established after the Second World War for the collective defence of its member States, and constituted the first offensive launched against another sovereign State in the organisation's entire history.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 49 , Issue 2 , April 2000 , pp. 330 - 359
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. I.C.J. Press Communiqué No.99/17 (29 Apr. 1999). The applications for proceedings against Belgium, Canada, the Netherlands, Portugal, Spain and the United Kingdom based the jurisdiction of the Court on Art.36(2) of its Statute and on Art.IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, whereas the applications for proceedings against France, Germany, Italy and the United States based the jurisdiction of the Court on Art.IX of the Genocide Convention and on Art.38(5) of the Rules of the Court. In each of these cases, the FRY also filed a request for interim measures of protection, based on Art.73 of the Rules of the Court, where it asked the Court to order these States to “cease immediately [their] acts of use of force” and to “refrain from any act of threat or use of force against the Federal Republic of Yugoslavia”. For full provision of all relevant documentation pertaining to the applications, the oral proceedings and rulings of the Court, see http://www.icj-cij.org/.

2. Fitchett, , “NATO Missiles Open Air War Against Yugoslavia”, International Herald Tribune (London), 25 03 1999, p.1.Google Scholar

3. Binyon, and Bone, , “Yeltsin Veto Threat Stalls Kosovo Raids”, The Times (London), 7 10 1998, p.15Google Scholar and Binyon, , “Britain Gives Airstrike Warning to Belgrade”, The Times (London), 13 03 1999, p.16.Google Scholar

4. Butcher, , “NATO Warns Milosevic of Kosovo Air Strikes”, Daily Telegraph (London), 25 07 1998, p.19Google Scholar; Walker, , “NATO General Turns Screw on Milosevic”, The Times (London), 22 10 1998, p. 17Google Scholar (noting the threat of the Supreme Commander of NATO, General Wesley Clarke, that President Milosevic had to remove an additional 4, 500 armed forces and police from Kosovo or face air strikes); Evans, , “NATO Warns Serbs of Military Action”, The Times (London), 11 12 1998, p.16Google Scholar and Cornwell, , “NATO Delivers Final Warning to Milosevic”, The Independent (London), 29 01 1999, p.13Google Scholar. This approach resulted after canvassing all member States of NATO for their support for air strikes against the FRY: Robbins, , “NATO Surveys Members on Kosovo Air Strikes: Objective is to End Attacks by Serbs”, Wall Street Journal (New York). 13 08 1998, A10Google Scholar. The Secretary-General of NATO, Javier Solana, admitted in Oct. 1998 that a “consensus” had formed within the organisation to the effect that “it will be necessary to resort to the last option that we have”. See Nicoll, and Peston, , “Solana Sees NATO Accord on Strikes”, Financial Times (London), 8 10 1998, p.2.Google Scholar

5. Amnesty International, A Human Rights Crisis in Kosovo Province (1998)Google Scholar; Human Rights Watch, A Week of Terror in Drenica: Humanitarian Law Violations in Kosovo (1999)Google Scholar; “Intervene and Be Damned?”, The Economist, 4–10 07 1998, p.14.Google Scholar

6. Harding, , “A State of One's Own”, London Review of Books, 19 08 1999, Vol.21 p.10, at p.12Google Scholar. For a comprehensive account of historical developments, see Beaumont, and Wintour, , “Kosovo: The Untold Story”, The Observer (London), 18 07 1999, p.13Google Scholar. It was also reported that Mujahidin fighters had joined the effort of the KLA: Walker, , “US Alarmed as Mujahidin Join Kosovo Rebels”, The Times (London), 26 11 1998, p.18.Google Scholar

7. http://www.icj-cij.org/icjwww/idocket/iybe/iybefrarae.htm. In its view, the “basic rights of individuals—members of minorities—are provided for by the Yugoslav Constitution and relevant laws. There is a large number of minority communities in Yugoslavia. In the northern part of Serbia, Vojvodina, the Hungarians, Slovaks, Romanians, Ruthenians are the largest minority communities. There are no special difficulties in relations between them and the State. These communities are represented at all levels of State organisation. They are practising local self-government and exercising their rights in the fields of education, culture and media. The Albanian community in Kosovo and Metohija has the same legal status and same rights”.

8. For an excellent and comprehensive electronic database of United Nations materials, see <http://www.un.org/peace/kosovo/sc-kosovo.htm=.

9. Security Council Resolution 1160 (1998), operative para.8 (where the Security Council “[d]ecide[d] that all States shall, for the purposes of fostering the peace and stability in Kosovo, prevent the sale or supply to the [FRY], including Kosovo, by their nationals or from their territories or using their flag vessels and aircraft, of arms and related matériel of all types, such as weapons and ammunition, military vehicles and equipment and spare parts for the aforementioned, and shall prevent arming and training for terrorist activities there”).

10. Ibid., operative para.5. In the preamble of the Resolution, the Council affirmed the “commitment of all member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia”.

11. In the preamble of Resolution 713 (25 Sept. 1991), the Security Council recalled the principles of the United Nations Charter and emphasised that “no territorial gains or changes within Yugoslavia brought about by violence are acceptable”. Upholding the “principle of unity and territorial integrity” had been a central concern of States, in particular Ecuador, Zimbabwe, India, China and Zaire, in the debate that preceded the adoption of this resolution by the Security Council: UN Doc.S/PV.3009 (25 Sept 1991). See further Weller, , “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia” (1992) 86 A.J.I.L 569Google Scholar. In addition, s.5(4) of the Yugoslav Constitution of 1974 stipulated that “,[t]he frontiers of the Socialist Federal Republic of Yugoslavia may not be altered without the consent of all Republics and Autonomous Provinces”.

12. Supra n.10.

13. According to Art.29 of the Statute of the ICTY, States “shall co-operate” with the ICTY “in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law”. The Statute also makes provision for the temporal jurisdiction of the ICTY, but does not specify a cut-off date: the ICTY has “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991” (Art.1): UN Doc.S/25704 (3 May 1993).

14. Supra n.9, operative para.17 (which also specified that the Contact Group countries would “make available to the Tribunal substantiated relevant information in their possession”).

15. Crossette, , “UN Chief Reports Little Help in Monitoring Balkan Arms Ban”, New York Times, 11 08 1998, A3.Google Scholar

16. Report of the Secretary-General of the United Nations Prepared Pursuant to Security Council Resolution 1160 (1998), UN Doc.S/1998/712 (5 Aug. 1998), noting, inter alia, ‘increased heavy fighting between the security forces of the [FRY] and the [KLA]” and that the numbers of civilian and military casualties were “at their highest point since the outbreak of the conflict” (para.11). The Secretary-General also lamented that the “unrelenting violence” had led to ‘a dramatic increase’ in internally displaced persons (para. 12), although the number of refugees in northern Albania had remained “approximately the same” (para.13).

17. Security Council Resolution 1199 (23 Sept. 1998), Preamble.

18. Ibid. Secretary-General Annan had earlier issued a report on Kosovo: UN Doc.S/1998/834 and Add.1. (4 Sept. 1998).

19. Black, , Steel, and Walker, , ‘Russia Digs in Against NATO Strikes’, The Guardian (London), 7 10 1998, p.2.Google Scholar

20. Supra n.17, operative para.1.

21. Ibid., operative para.3.

22. Ibid., operative para.4. In operative para.6, the Council insisted that the Kosovo Albanian leadership “condemn all terrorist action” and that “all elements in the Kosovo Albanian community should pursue their goals by peaceful means only”.

23. Ibid., operative para.8.

24. Ibid., operative para.14.

25. Keesing's Record of World Events (1998), Vol.44, p.42580Google Scholar. A cease-fire had been announced by the KLA four days beforehand, on 8 Oct., but it was broken on 17 Oct. when KLA members killed three Serbian policemen at Orlate: idem, at 42581.

26. The former agreement, reached with NATO, established the Kosovo Verification Mission (KVM), which would provide an air surveillance system to verify compliance with Security Council Resolution 1199 (1998): UN Doc.S/1998/991 (23 Oct. 1998). This system was said to complement the ground surveillance system, which had been created by the agreement reached with the OSCE: UN Doc.S/1998/978 (16 Oct. 1998). By virtue of that agreement, the FRY accepted a monitoring mission of the order of 2,000 members at 8 time of reducing the presence of police and armed forces on the ground.

27. In particular, it endorsed (in the first operative paragraph of the resolution) the agreements reached between the FRY, NATO (on 15 Oct. 1998) and the OSCE (on 16 Oct. 1998) concerning the verification mechanisms established to monitor compliance with Resolution 1199 (1998).

28. Supra n.26.

29. Security Council Resolution 1207 (17 Nov. 1998), operative para.3. In operative para.1, the Council reminded the FRY of its legal obligations under the ICTY Statute.

30. UN Doc.S/1221/1998 (24 Dec. 1998), para.4.

31. “New Fighting in Kosovo is Reported”, International Herald Tribune (London), 18 12 1998, p.18.Google Scholar

32. See e.g. Physicians for Human Rights, Medical Croup Documents Systematic and Pervasive Abuses by Serbs Against Albanian Kosovar Health Professionals and Albanian Kosovar Patients: Press Release, 23 12 1998Google Scholar. See further Bird, , “Serbs ‘Tortured Kosovo Doctors’ for Role in War”, The Guardian (London), 31 12 1998, p.15.Google Scholar

33. The Security Council was informed in June 1999 of how systematic “ethnic cleansing” had taken place in Kosovo before and during NATO's aerial campaign and that there was “indisputable evidence of organised well-planned violence against civilians, aimed at displacing and permanently deporting [the Kosovar Albanians]”. See Usbome, , “Serbs ‘Went on A Rampage of Violence’”, The Independent (London), 3 06 1999, p.14.Google Scholar

34. Strauss, , “Kosovo Killings Inquiry Verdict Sparks Outrage”, Daily Telegraph (London), 18 03 1999, p.15Google Scholar (citing an official European Union report of a Finnish investigation whose author labelled the killing “a crime against humanity” but did not use the word “massacre”).

35. Whitaker, , “Belgrade's Link to Massacre”, The Independent (London), 29 01 1999, p.13Google Scholar and Bird, , “Raçak Report Finds Serbs Guilty”, The Guardian (London), 18 03 1999, p.13.Google Scholar

36. UN Doc.S/PRST/1999/2 (19 Jan. 1999). The report referred to emanated from the KVM. The Security Council also noted that, against the advice of the KVM, Serb forces returned to Raçak on 17 Jan. and that fighting broke out. The same statement warned the KLA against actions which were “contributing to tensions”.

37. Ibid.

38. Evans, , “War Crimes Threat for Milosevic”, The Times (London), 9 03 1999, p.11Google Scholar (reporting Prime Minister Blair's warning that “President Milosevic and his commanders must … understand that NATO will not stand by in the face of renewed repression in Kosovo or atrocities like the one we witnessed in Raçak”).

39. Buchan, , “Contact Group to Push for Peace Conference on Kosovo”, Financial Times (London), 23–24 01 1999, p.3Google Scholar. For a fuller account of the developments at Rambouillet, see Judah, , Kosovo: War and Revenge (2000), pp. 196–226Google Scholar and Weller, , “The Rambouillet Conference on Kosovo” (1999) 75 Int. Affairs 211.CrossRefGoogle Scholar

40. Keesing's Record of World Events (1999), Vol.45, p.42806.Google Scholar

41. UN Doc.S/1999/648 (7 June 1999), located at <http://www.un.org/peace/kosovo/99648–1. pdf=.

42. UN Doc.S/1999/96 (29 Jan. 1999).

43. Perlez, , “Albright Brings Foes Face to Face at Kosovo Talks”, New York Times, 15 02 1999, A1Google Scholar and Fitchett, , “Kosovar Team Accepts Conditional Agreement: Talks to Resume After Albanians Consult at Home”, International Herald Tribune (Frankfurt), 24 02 1999, p.1.Google Scholar

44. Keesing's Record of World Events (1999), Vol.45, p.42846 (who was “surrounded by hardline generals who had convinced him that, given a free hand, they could quickly eradicate the UCK and were accordingly ready to risk limited air attacks from NATO”).Google Scholar

45. Ibid., and “Holbrooke's ‘Two Days of Intense Talks’”, Financial Times (London), 24 03 1999, p.2Google Scholar and Judah, supra n.39, at p.227.

46. Supra n.7. Serbian President Milan Miluntinovic announced at Rambouillet that, in the context of the crisis in Kosovo, he could see “no circumstances” in which foreign forces would be allowed on Yugoslav soil. He also questioned the potential utility of such a force: Buchan, , “Success of Rambouillet Talks Far From Guaranteed”, Financial Times (London), 22 02 1999, p.2.Google Scholar

47. Ibid. The FRY also contended that the settlement proposed at Rambouillet provided “for some sort of protectorate over [Kosovo], as well as military occupation by international military forces under the direction of NATO”.

48. Buchan, and Dinmore, , “US Steps Up Pressure on Serbs and Ethnic Albanians”, Financial Times (London), 22 02 1999, p.14.Google Scholar

49. UN Doc.S/1999/293 (17 Mar. 1999), para.4. See also, at para.33, his statement that “the number of Yugoslav troops deployed in the field exceeds the agreed level by a factor of five. Kosovo Albanian paramilitary units are consolidating their presence throughout Kosovo, including areas they did not control before. As a result, fighting now affects areas previously untouched by hostilities, leading to further deterioration of the situation and new displacements of civilian population”.

50. Davison, , “Massive Bombardment by NATO smashes into Serb Air Defences”, The Independent (London), 25 03 1999, p.3.Google Scholar

51. Although NATO Secretary-General Javier Solana did provide a political rationalisation of the action when he said that NATO was not “waging war against Yugoslavia. We have no quarrel with the people of Yugoslavia who for too long have been isolated in Europe because of the policies of their government Our objective is to prevent more human suffering and more repression and violence against the civilian population in Kosovo”: Press Communique of 23 Mar. 1999, <http://www.NATO.int/docu/pr/1999=. See further the evidence of “reasoning behind the announcement of NATO that armed force would be used if the FRY did not desist from further massive violations of human rights” in infra n.88, at pp.7 and 12.

52. A legal counsellor of the Foreign and Commonwealth Office said that the “intervention in northern Iraq ‘Provide Comfort’ was in fact, not specifically mandated by the United Nations, but the States taking action … did so in exercise of the customary international law principle of humanitarian intervention”: (1992) 63 B.Y.B.I.L. 824, 827.

53. Bird, , Black, , Walker, and Ellison, , “NATO Unleashes Massive Air and Missile Strikes Across Defiant Yugoslavia: The Onslaught Begins”, The Guardian (London), 25 Mar. 1999, p.1.Google Scholar

54. The Guardian (London), 27 03 1999, p.4.Google Scholar

55. Farrell, and Webster, , “Blair to Double Aid For Refugees”, The Times (London), 4 05 1999, p.1.Google Scholar

56. HC Hansard, Vol.328, col.543, 25 03 1999Google Scholar. See further Riddel, , “NATO Attacks Create New Doctrine of Intervention”, The Times (London), 26 03 1999, p.8.Google Scholar

57. HC Hansard, Vol.328, cols.616–617, 25 03 1999Google Scholar. To similar effect, see Baroness Symons's written answer of 16 Nov. 1998, where it was admitted that cases have arisen—as with northern Iraq in 1991—“when, in the tight of all the circumstances, a limited use of force was justifiable in support of purposes laid down by the Security Council but without the Council's express authorisation when that was the only means to avert an immediate and overwhelming humanitarian catastrophe” HL Hansard, Vol. 594, WA 140 (16 11 1998) (emphasis supplied)Google Scholar. See also the statement of Sir Jeremy Greenstock at the Security Council in New York, at infra n.68. The Foreign and Commonwealth Office had earlier distributed a Memorandum to its NATO partners, stating that “force can … be justified on the grounds of overwhelming humanitarian necessity without a United Nations Security Council Resolution“: reproduced in Roberts, “NATO's ‘Humanitarian War’ over Kosovo” (1999) 41 Survival 102, 106 (emphasis supplied).

58. UN Doc.GA/9599 (21 Sept. 1999).

59. Clines, , “NATO Opens Broad Barrage Against Serbs as Clinton Denounces ‘Brutal Repression’”, New York Times, 25 03 1999, A5Google Scholar and Dejevsky, , “Clinton Acts to Avert A ‘Catastrophe’”, The Independent (London), 25 03 1999, p.2.Google Scholar

60. “Excerpts of President Clinton's Address on NATO Attacks on Yugoslav Military Forces”, Washington Post, 25 03 1999, A34.Google Scholar

61. Supra n.1.

62. CR 99/24: Verbatim Record of 11 May 1999 <http://www.icj-cij.org/icjwww/idocket/iybe/iybe frame. htm>.

63. See in particular the legal justifications given for the American intervention in Grenada in Oct. 1983 in Moore, Law and the Grenada Mission (1984), pp. 125–129 and the statement of President George Bush in defence of the American intervention in Panama in Dec. 1989: Statement of the Office of the President, 3 Jan. 1990.

64. CR 99/24: supra n.62 “A failure by NATO to act immediately would have been to the irreparable prejudice of the people of Kosovo. The [member States] of NATO refused to stand idly by to watch yet another campaign of ethnic cleansing unfold in the heart of Europe”.

65. CR 99/15: Verbatim Record of 10 May 1999.

66. Ibid.

67. See e.g. France's position not to “seek to enter in any way whatever into a discussion on the substance of the alleged dispute which the Application aims to resolve. Instead, she will limit herself to showing that the Court has no jurisdiction to entertain that Application”. CR 99/17: Verbatim Record of 10 May 1999. It is imperative to mention, though, that France “associate[d] herself completely” with the arguments that “have been and will be developed before you by the Respondents in the other cases to be considered by the Court at these hearings”. Italy also considered that it was “unnecessary and even an abuse of [the Court's] patience to spend time at this stage on matters relating solely to the merits [of the case for the use of force] and it will therefore avoid as far as possible making any such reference”: CR 99/19: Verbatim Record of 11 May 1999. See also the position of the Netherlands, CR 99/20: Verbatim Record of 11 May 1999 and Portugal, CR 99/21: Verbatim Record of 11 May 1999.

68. See e.g. the argument of Germany at CR 99/18: Verbatim Record of 11 May 1999, that the NATO action had been undertaken “as a last resort in order to put a stop to the massive human rights violations perpetrated by the [FRY] in Kosovo and to protect the population of Kosovo from the unfolding humanitarian catastrophe”. Indeed, one expert commentator has already written that the German government “called a spade a spade and spoke of the NATO threat as an instance of ‘humanitarian intervention’”: infra n.88, at pp. 12–13. The United Kingdom recalled the statement made by its Permanent Representative to the United Nations, Sir Jeremy Greenstock, who described Operation Allied Force as “an exceptional measure to prevent an overwhelming humanitarian catastrophe”: CR 99/23: Verbatim Record of 11 May 1999. The Permanent Representative informed the Security Council that the “force now proposed is directed exclusively to averting a humanitarian catastrophe, and is the minimum judged for that purpose”. UN Doc.S/PV. 3988 (24 March 1999). See also Black, “Allies Argue A Humanitarian Case”, The Guardian (London), 25 Mar. 1999, p3.

69. Halliday, “Are the Actions of NATO in Kosovo Prudent and Are They Legal?”, The Irish Times (Dublin), 1 Apr. 1999, p.18 located at <http://www.ireland.com/newspaper/opinion/1999/0401/opt3Jitm>.

70. Supra n.53.

71. Davison, , “Military Analysts Say Bombing Will Not Be Enough”, The Independent (London), 27 03 1999, p.5.Google Scholar

72. Keesing's Record of World Events (1999), Vol.45, p.42848.Google Scholar

73. Truehart, and Delaney, , “Europeans Back Raids, But With Apprehension”, International Herald Tribune (Frankfurt), 25 03 1999, p.5.Google Scholar

74. Although Prime Minister d'Alema also urged for the initiative to “return to the political track”: see Evans, , Webster, and MacIntyre, , “NATO Split over Air Campaign”, The Times (London), 26 03 1999, p.1Google Scholar. See also Blitz, , “Italy ‘Loyal to Operation’”, Financial Times (London), 14 04 1999, p.2.Google Scholar

75. Keesing's Record of World Events (1999), Vol.45, p.42957.Google Scholar

76. Green, , “Stern Test for NATO's Three New Members”, International Herald Tribune (London), 25 03 1999, p.5Google Scholar (Prime Minister Viktor Orban pledged not to deploy Hungarian forces in the FRY). See also Fitchett, , “Czechs Overcoming ‘Hesitation’ on Raids”, International Herald Tribune (London), 12 04 1999, p.9Google Scholar (where Michael Zantovsky, Chairman of the Czech Senate's Committee on Foreign Affairs, Defence and Security, admitted that “government and public opinion weren't quite ready initially, so hesitation, even opposition, created a split from the first”).

77. Whitehouse, , “Russia Warns of Another Vietnam”, The Guardian (London), 25 03 1999, p.3Google Scholar (noting that the action “means war in Europe, possibly even more”). See further Evans, and Brodie, , “Yeltsin Says West Risks A World War”, The Times (London), 10 04 1999, p.1.Google Scholar

78. President Yeltsin is reported to have described the action as “open aggression”: “Russia Condemns NATO at UN”, BBC Online Network, 25 Mar. 1999 <http://www.bbc.co.uk/hi/english/Wworld/europe/newsid_303000/303127.stm>. The FRY's Representative at the United Nations, Vladislav Jovanovic, also referred to the action as an “aggression”: Usborne, and Reeves, , “UN Swept Aside by Bombing Offensive”, The Independent (London), 25 03 1999, p.4Google Scholar. President Nursultan Nazarbayev of Kazakhstan thought that the “bombing should be stopped, while at the same time stopping the Serbs from pushing the Kosovars from their country”—although he did not go as far as calling the intervention unlawful: “Kazakhstan Backs Russia on Kosovo”, International Herald Tribune (London), 29 04 1999, p.5.Google Scholar

79. Binyon, , “Strikes Condemned By Third World”, The Times (London), 26 03 1999, p.6.Google Scholar

80. Kynge, , “China Hits At ‘Gunboat Diplomacy’”, Financial Times (London), 11 05 1999, p.2.Google Scholar

81. Binyon, , “Iraq is Only Muslim State to Back Serbs”, The Times (London), 6 04 1999, p.5.Google Scholar

82. UN Doc.S/1999/328 (25 Mar. 1999). See also Blundy, and Bone, , “Russia Forces UN Vote on Airstrikes”, The Times (London), 26 03 1999, p.6.Google Scholar

83. Bone, and Blundy, , “Russians Fail in UN Attempt to End the Bombing”, The Times (London), 27 03 1999, p.8.Google Scholar

84. Brownlie, , Principles of Public International Law (5th ed., 1998), pp.7–8Google Scholar (drawing a distinction between two approaches—one where the International Court of Justice is “willing to assume the existence of opinio juris on the bases of evidence of a general practice” and the other, “more rigorous approach”, where the Court “has called for more positive evidence of the recognition of the validity of rules in question in the practice of States”). Brownlie concludes that “[t]he choice of approach appears to depend upon the nature of the issues… and the discretion of the Court”. For an interpretation that regarded the vote as “implying acceptance of the action as legal”, see The Economist, 3–9 04 1999, pp.19–20.Google Scholar

85. Binyon, , “UN Chief Backs Use of Force”, The Times (London), 29 01 1999, p.17Google Scholar, where Secretary-General Annan is reported to have said: “The bloody wars of the last decade have left us with no illusions about the difficulty of halting internal conflict by reason or by force—particularly against the wishes of the government of a sovereign State” (although it should be noted that the Secretary-General emphasised that “where horror threatens”, the world had to be dear about the “credibility, legitimacy and morality of intervention and non-intervention”). During NATO's campaign, the Secretary-General spoke of “emerging international law that countries cannot hide behind sovereignty and abuse people without expecting the rest of the world to do something about it”. See Burt and Anderson, “UN Warns Yugoslavia over Human Rights”, Financial Times (London), 26 05 1999, p.2.Google Scholar

86. “Annan Gives Strikes Qualified Support”, BBC Online Network, 24 03 1999Google Scholar <http://news.bbcco.uk/hi/english/world/europe/newsid_303000/303148.stm>. Secretary-General Annan later identified “two compelling interests in the case of Kosovo”—whether it is “legitimate for a regional organisation to use force without a UN mandate” and whether it is “permissible to let gross and systematic violations of human rights, with grave consequences, continue unchecked”—which he felt the international community had been unable to resolve: “Two Concepts of Sovereignty”, The Economist, 18–24 09 1999, p.81Google Scholar. Cf. Littlejohn, . “Annan Criticises NATO's Action in Kosovo”, Financial Times (London), 9 09 1999, p.4Google Scholar (where the Secretary-General concluded that the NATO intervention represented a threat to the “very core of the international security system”).

87. <http://www.ejil.org/journal/VollO/Nol/abl.html>.

88. Simma, , “NATO, the UN and the Use of Force: Legal Aspects” (1999) 10 E.J.I.L.1, 22.Google Scholar

89. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) 35 I.L.M. 809, 823 (“The notions of ‘threat’ and ‘use’ of force under Article 2 paragraph 4 of the Charter stand together in the sense that if the use of force itself in a given case is illegal—for whatever reason—the threat to use such force will likewise be illegal … [N]o State … suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal”). See further Simma's statement, Ibid., at p.11, that “it makes little difference that the threat had not been carried out until the time of writing because Article 2(4) prohibits such threats in precisely the same way as it does the actual use of armed force”.

90. Supra n.88, at p.2.

91. Ibid., at pp.3–4 (noting, for the sake of comprehensiveness, that “the mechanism of the so–called ‘enemy-state clauses’ (Articles S3 and 107) should be left aside as it is now unanimously considered obsolete”).

92. Ibid., at p.4. See further the argument at Ibid., at p 334, that in the absence of Security Council authorisation, “military coercion employed to have the target State return to a respect for human rights constitutes a breach of Article 2(4) of the Charter”.

93. Under Art.5 of the 1949 North Atlantic Treaty, the Parties agreed that “an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in the exercise of the right of individual or collective self-defence, recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith… such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area”. 34 U.N.T.S. 541Google Scholar. See further Higgins, , “Peace and Security: Achievements and Failures” (1995) 6 E.J.I.L. 445Google Scholar and White, , Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (2nd ed., 1997), p.21.Google Scholar

94. UN Doc.S/1999/107 (2 Feb. 1999).

95. See the communiqué issued on 25 03 1999 by Mexico on behalf of the countries which are members of the Permanent Mechanism for Consultation and Concerted Political Action in Latin America (the Rio Group). The communiqué expressed “regret” that “the recourse to the use of force in the Balkan region [occurred] in contravention of the provisions of Article 53(1) and Article 54 of the Charter of the United Nations”: UN Doc.S/1999/347 (26 March 1999).

96. Franck, , Fairness in International Law and Institutions (1995), p.312.Google Scholar

97. Simma's assessment is that the “requirement” of Art.53(l) of the Charter, “for an—express or implicit, prior or ex-post-facto—authorisation of enforcement action under regional arrangements or by regional agencies is not formally applicable in the case of NATO. The Alliance constitutes an international organisation on the basis of Article 51 of the Charter, the only ‘enforcement action’ envisaged in this Article is self-defence”: supra n.88, at p.10.

98. Ibid., at p.6.

99. Ibid., at p.12.

100. Ibid., at p.22.

101. Ibid., at p.11. Cassese, infra n.102, at p.353, regards the distinction drawn by Simma as one where unlawful actions can be “not so grave” as opposed to “grave” violations of the United Nations Charter.

102. Cassese, , “Ex Injuria ius Oritur. Are We Moving Towards Legitimation of Forcible Humanitarian Countermeasures in the World Community?” (1999) 10 E.J.I.L. 23, 24.Google Scholar

103. Ibid., at p.24.

104. Ibid.

105. Ibid., at p.25. This predicament was experienced elsewhere: “How can I, as an advocate of human rights, resist the assertion of a moral imperative on States to intervene in the internal affairs of another State where there is evidence of ethnic cleansing, rape and other forms of systematic abuse, regardless of what the Charter mandates about the use of force and its allocation of competence?” Chinkin, , “Kosovo: A ‘Good’ or ‘Bad’ War?” (1999)93 A.J.I.L. 841, 843.Google Scholar

106. Ibid.

107. Franck, and Rodley, , “After Bangladesh: The Law of Humanitarian Intervention By Military Force” (1973) 67 A.J.I.L. 275Google Scholar (where they admitted the occasional desirability of such operations, but felt that even where desired, such operations would fall foul of international law and would, instead, benefit from the defence of “superior necessity” which “belongs in the realm not of law but of moral choice, which nations, like individuals, must sometimes make, weighing the costs and benefits to their cause, to the social fabric and to themselves”).

108. Cassese, supra n.102, at p.25.

109. Kritsiotis, , “Reappraising Policy Objections to Humanitarian Intervention” (1998) 19 Michigan J.I.L 1005, 1047.Google Scholar

110. See in particular the analysis of the 1971 Indian intervention in East Pakistan: Akehurst, , “Humanitarian Intervention” in Bull (Ed.), Intervention in World Politics (1984), p.95.Google Scholar

111. Cassese, supra n.102, at p.28 (where reference is also made to the rejection of the draft resolution sponsored by Belarus, India and the Russian Federation, cited at supra n.82, and the fact that “no State or group of States [took] the step that would have been obvious in case of strong opposition to NATO armed intervention: to request an immediate meeting of the General Assembly”). See Cassese, , “A Follow-Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis” (1999) 10 E.J.I.L. 791Google Scholar, 792 (“The overwhelming majority of States did not condemn the NATO intervention as illegal”). However, Cassese does maintain, at p.796, that “it is premature to maintain that a customary rule has emerged” because “[t]he element of usus or diuturnitas is clearly lacking.” For a different appreciation of the nature of the “international legal decision process”, see Reisman, , “Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention” (2000) 11 E.J.I.L. 3, 13. Cf. CharneyGoogle Scholar, “Anticipatory Humanitarian Invervention in Kosovo” (1999) 93 A.J.I.L. 834, 838–841.Google Scholar

112. Farer, , “A Paradigm of Legitimate Intervention” in Damrosch, (Ed.), Enforcing Restraint: Collective Intervention in Internal Conflicts (1993), p.316Google Scholar, at p.336 (noting that the intervention “evoked not a peep of censure from either the wider African community of States or the [United Nations]. What little reaction that occurred seemed quietly approving”). Indeed, the Security Council was later, on 19 Nov. 1992, to endorse the armed intervention in Resolution 788 (1992).

113. Greenwood, , “New World Order or Old? The Invasion of Kuwait and the Rule of Law” (1992) 55 Modem Law Rev. 153, 176.CrossRefGoogle Scholar

114. Higgins, , Problems and Process: International Law and How We Use It (1994), p.253.Google Scholar

115. Sengupta, , “Targets Get Legal Check”, The Independent (London), 8 04 1999, p.2.Google Scholar

116. For an analysis of the consequences of this aspect of the campaign, see LeBor, , “Air Strikes Bring Danube to A Halt”, The Independent (London), 23 04 1999, p.3.Google Scholar

117. Walker, , “Missiles Hit Diesel Supplies and Wipe Out Serb Tobacco Works”, The Times (London), 6 04 1999, p.6.Google Scholar

118. Erlanger, , “‘Technical Defect’ Kills Seven in Serb Town”, International Herald Tribune (London), 7 04 1999, p.1.Google Scholar

119. Walker, , “Missile Kills At Least Nine in Flats”, The Times (London), 8 04 1999, p.5.Google Scholar

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121. Dinmore, , “‘Tomahawk Democracy’ Decried As Car Plant Bombed”, Financial Times (London), 10–11 04 1999, p.2.Google Scholar

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123. Dobbs, and Vick, , “Airstrikes Kill Scores of Refugees”, Washington Post, 15 04 1999, A1Google Scholar. NATO later admitted that an American F16 pilot had bombed a convoy of internally displaced persons by mistake, and authorities in Belgrade claimed that at least 72 people had been killed: Evans, and Bremner, , “NATO Admits Bombing Convoy”, The Times (London), 18 04 1999, p.1Google Scholar and Bremner, , “Film Shows NATO Bombing Civilians”, The Times (London), 20 04 1999, p.5.Google Scholar

124. Walker, , “Poison Cloud Engulfs Belgrade”, The Times (London), 19 04 1999, p.1.Google Scholar

125. Binyon, , “Blair Defends Strategy As Ten Die in TV Centre Attack”, The Times (London), 24 04 1999, p.15Google Scholar. In early April, NATO issued an ultimatum that Serbian radio and television nations would be attacked unless they offered six hours of impartial reporting: Sengupta, , “NATO Threatens to Hit Serb [Television] Stations”, The Independent (London), 9 04 1999, p.2Google Scholar and “NATO Plans to Destroy Serb ‘Propaganda’ Media”, Financial Times (London), 9 04 1999, p.1Google Scholar (noting that only those transmitters that had a “military use” would be targeted).

126. Dinmore, , “NATO Destroys Major Bridge”. Washington Post, 4 04 1999, A14.Google Scholar

127. Fisk, , “NATO Attacks Housing Estate”, The Independent (London), 28 04 1999, p.1Google Scholar. On 28 April NATO acknowledged that at least one laser-guided bomb had missed its target and had hit civilian houses in a neighbourhood of Surdulica: Whitney, , “NATO Bomb Kills Twenty Serbian Civilians”. International Herald Tribune (London), 29 04 1999, p.1.Google Scholar

128. Norton-Taylor, et al. , “Rogue Missile Hits Suburb of Bulgarian Capital”, The Guardian (London), 30 04 1999, p.2Google Scholar. Although the stray missile caused limited property damage, it was reported that there were no injuries: Hope, , “Opposition To War Rises in Bulgaria”, Financial Tunes (London), 30 04 1999, p.2.Google Scholar

129. Prentice, , “Albanians Die As Missile Hits Bus”, The Times (London), 3 05 1999, p.10Google Scholar. NATO confirmed that the attack had occurred, but said that it was impossible to verify the number of casualties: Castle, , “Allies Admit Killing 23 Civilians in Bridge Bombing”, The Independent (London), 3 05 1999, p.4.Google Scholar

130. Evans, , “‘Second Bus Hit’ in Two Days”, The Times (London), 4 05 1999, p.14Google Scholar and Sengupta, , Boggan, and Cranshaw, , “NATO ‘Kills 20’ in Second Bus Bombing As Blair Promises to Take More Refugees”, The Independent (London), 4 05 1999, p.1.Google Scholar

131. Evans, , “Graphite Bomb Short-circuits Power Stations”, The Times (London), 4 05 1999, p.13Google Scholar. The fear was expressed that “permanent damage” was being done to the water and electricity supply systems: Erlanger, , “Living ‘like Cavemen in Belgrade’: No Water, No Electricity”. International Herald Tribune (London), 25 05 1999, p.1.Google Scholar

132. Williams, , “Missiles Hit Chinese Embassy”, Washington Post, 8 05 1999, AlGoogle Scholar. For the expected reaction from China, see supra n.80. Claims have subsequently been made that the attack, which killed three Chinese nationals, was deliberate and not accidental: Sweeney, , Holsoe, and Vulliamy, , “Revealed: NATO Bombed Chinese Deliberately”, The Observer (London), 17 10 1999, p.1.Google Scholar

133. “Bonn and Paris Ask For Kosovo Review: NATO Keeps Up the Pressure As Missiles Knock Out Bridge”, International Herald Tribune (London), 31 05 1999, p.1Google Scholar and Gall, , “NATO Bombing Shatters Quiet Sunday in Varvarin”, International Herald Tribune (London), 1 06 1999, p.11.Google Scholar

134. Erlanger, , “NATO Strikes Kill 18 More Serb Civilians”, International Herald Tribune (London), 1 06 1999, p.10.Google Scholar

135. “Up to 29 Civilians Reportedly Killed In NATO Bombing Raids”, The Irish Times (Dublin), 1 06 1999, p.1.Google Scholar

136. Fischer, , “Stray NATO Bombs Hit Albanian Town, A Refugee Arrival Point”, International Herald Tribune (London), 2 06 1999, p.4.Google Scholar

137. Cornwell, , “Kosovo Conflict to Cost NATO Nations $llbn”, The Independent (London), 22 10 1999, p.14.Google Scholar

138. Castle, , “Doubts Still linger Over NATO's War Evidence”, The Independent (London), 17 09 1999, p.16Google Scholar (reporting claims that only 13, as opposed to 110, Serb battle tanks had been hit during NATO's bombing campaign). For one of the first assessments of the lawfulness of specific aspects of NATO's military campaign, see Human Rights Watch, Civilian Deaths in the NATO Air Campaign (2000)Google Scholar and available at <http://www.hrw.org/reports/2000/nato/>. A summary of this report is contained in Marshall, , “NATO Accused of Violating International Law in Kosovo”, The Independent (London), 7 02 2000, p.1.Google Scholar

139. Brown, , “Danube Study Questions Warfare that Bombs Polluting Targets”, The Guardian (London), 27 Oct. 1999, p.15.Google Scholar

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141. Supra nn.78–81.

142. Supra n.69.

143. Supra nn.106 and 107.

144. On 2 June 1999, the Court held that it manifestly lacked jurisdiction for two of the ten cases that had been referred to it for provisional measures (Yugoslavia's proceedings against Spain and the United States of America), but that in the remaining cases, it lacked prima facie jurisdiction: see I.C.J. Communiqué No.99/23 (2 June 1999). This meant that it could not indicate provisional measures in those cases. The Court, however, said that it remained seized of those cases because its findings “in no way prejudgc[d] the question of the jurisdiction of the Court to deal with the merits‘ of the cases, which left ’unaffected the right of the Governments of Yugoslavia and [of the respondent States] to submit arguments in respect of those questions‘: I.C.J. Press Communiqué’ No.99/39 (2 July 1999), where the Court decided that the FRY should submit a memorial in each of the eight cases by 5 01 2000 and that the respondent States (Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal and the United Kingdom) should submit a counter-memorial by 5 July 2000.

145. Supra n.102, at p.27.

146. Nicaragua Case: Case Concerning Military and Paramilitary Activities In and Against Nicaragua (1986) I.C.J. Reports 14, 109 (para.207).Google Scholar

147. Supra n.102, at p30, and n.111.

148. Supra n.107.