From Interstate - Journal of International Affairs VOL. 1998/1999 NO. 2
Is Bombing Serbia Legal?
Since the commencement of the Nato action against the Federal Republic of Yugoslavia (FRY), the broadsheets have been full of debate concerning its legality. Amongst others, academics such as Noel Malcolm, Marc Weller, Christopher Greenwood, Adrian Hastings, Mark Almond and James Gow have wrestled with the complex question of legality. On the one hand, the Yugoslav’s have a good case to pronounce that the act is illegal. They claim that the action is a clear violation of Article 2 of the UN Charter which stipulates that the UN and individual states must not interfere with the territorial integrity or political independence of state. Furthermore, they point out that the Nato action fulfills neither of the prerequisites for a legal use of force in terms of the Charter. The only two occasions in which force can be used legally are under Article 51 which articulates a states ‘inherent right’ to self defence, and under Chapter VII enforcement action endorsed by the Security Council. On the other hand, Nato argues that by taking action it is actually enforcing the Security Council Resolutions 1160, 1199 and 1203 which demanded that the FRY cease all military activities in Kosova. Additionally, they argue that Milosevic has breached the terms of the October agreement which he concluded with the OSCE in 1998, and is in clear contravention of a whole host of legal tracts concerning human rights and genocide. Add to that the questionable legal status of the FRY, and the argument that Kosova is not a legal part of FRY and it is not difficult to see why there has been so much debate.
The Belgrade Review of International Affairs has run many articles on the territorial inviolability of FRY over the past 12 months. In them, Serb scholars argue that the FRY is the continuation of the ‘former Yugoslavia’ and as such it should enjoy the privileges of sovereign inviolability under the articles mentioned above, and under the terms of the founding acts of the Helsinki process. However, the general view amongst British academics is that the Nato action is not illegal for a whole host of interesting reasons. Christopher Greenwood argued that, as in the case of the safe areas in Northern Iraq, there is a body of ‘customary international law’ which obliges states to act on occasions when human rights are being obviously flouted. As such, he argued that in a situation in which the Security Council was unwilling to act to secure the fulfillment of its own resolutions, individual states have the right to act in order to achieve that end. This is a claim that must sound dubious to even the most ardent of English school advocate. If states have the right to take unilateral or collective action to fulfill Security Council resolutions, then Syria or Iraq could justify an invasion of Israel in terms of fulfilling the numerous resolutions concerning Palestine. Somewhat differently, Marc Weller argued that the action was not illegal because Resolution 1199 gave a tacit ‘nod and a wink’ for the use of force.
Certainly, after much deliberation, the British government decided to validate the air strikes in terms of Resolution 1199. However, there is evidence that in June 1998 Nato states attempted to obtain a Resolution which specifically authorised the use of force against FRY. This move did not reach the draft resolution stage, presumably because of the opposition of Russia and China, whose acquiescence is necessary for the adoption of any Council Resolution. The result was Resolution 1199, which in many ways is a mere clarification of many of the assertions and demands made earlier in Resolution 1160. Like the other two Resolutions on Kosova, 1199 is a Chapter VII Resolution. This means that the Council recognised that the Kosovan crisis represented a threat to international peace and security, and so the claims of the FRY government that Kosova was an internal problem was rejected by the Council, at quite an early stage of the conflict (Resolution 1160 was adopted on 31 March 1998). Resolutions 1160 and 1199 condemned the violence in Kosova and demanded that the government cease its paramilitary operations. However, they also reaffirmed the sovereignty and territorial integrity of FRY, thus rejecting the Kosovar Albanian demands for independence. On the question of the use of force, Resolution 1199 contains a stipulation that the Council could reconvene to consider action in pursuance of the objectives of the Resolution. The Resolution was passed with fourteen votes in favour and none against, the Chinese abstained. In their statements after the vote was taken, both the Russian and Chinese delegations were adamant that there was nothing in Resolution 1199 that could allow Nato to use force against the FRY, though it has to be conceded that an expansive legal interpretation of the Resolution could see in it the tacit approval suggested by Weller, given that all that is lacking is the explicit authorisation, and that the Resolution gives responsibility for the negotiating process to regional organisations. After the commencement of Operation Allied Force, Russia tabled a draft Resolution demanding the immediate cessation of all Nato operations. The Council voted 12-3 to reject the motion (Russia, China and Namibia voted in favour), sending a clear indication that the overwhelming view amongst Council members was that Resolution 1199 did provide enough legal justification for the Nato action.
Clearly, in October 1998, Nato believed that it had legal authorisation for the use of force. A punitive strike was avoided at the eleventh hour by the conclusion of the October agreement between the FRY and the OSCE. Under the terms of this agreement, the FRY would comply in full with the Security Council Resolutions and would make moves towards holding elections and coming to an agreement with the unofficial President of the Republic of Kosova, Ibrahim Rugova. Furthermore, Milosevic agreed to accept an unarmed verification mission (KVM) under the auspices of the OSCE. Crucially, the October agreement does contain a commitment on the part of the Yugoslavs to be responsible for the security of the verifiers, and an explicit agreement to allow Nato to deploy forces in order to protect the verifiers if the FRY fails to do so. By January this year, Milosevic had breached every single commitment that he made to Richard Holbrooke in October, and despite officially under orders of ceasefire the Serb paramilitaries killed around two hundred Kosovar Albanians between October and the beginning of January. Furthermore, they had not ceased in their ethnic cleansing. At the beginning of January one in four Kosovar Albanian had spent time in prison and one in eight had been ethnically cleansed. Given that Milosevic knew that the October agreement was made under the duress of threatened air strikes, it has been argued that he has broken an international treaty which contained an implicit threat of the use of force. By signing up to the October agreement, Milosevic accepted that non-compliance would lead to air strikes. Thus they would be legal.
Following the massacre at Racak, which was later described as a ‘crime against humanity’ by the OSCE investigators, the Contact Group of six states (UK, US, Russia, France, Germany, Italy) ,which was set up to consider solutions to the Bosnian war, set the Rambouillet process in motion. The two sides of the Kosovan conflict were summoned to submit delegations to Rambouillet and were told that they had to reach agreement based on a Contact Group plan by 21 February 1999. By the middle of March it was clear that the threats had not paid off. After much deliberation, the Kosovar Albanian delegation accepted the plan even though this meant postponing (but by no means renouncing) their demands for independence. The FRY rejected the plan, particularly because it could not accept the imposition of a Nato led force on its sovereign territory. Immediately after rejecting the plan, the FRY began its spring cleansing. As with the October agreements, it can again be argued that the FRY – by participating in the Rambouillet process – was tacitly accepting the legality of the use of force, which by this time had become a direct and overt threat. It is also worth noting that Russia had been one of the architects of this plan which had relied so heavily on the threat of air strikes to get as far as it did.
The legal claims made by the FRY are all in terms of the UN Charter and the territorial inviolability statements within the Helsinki Accords. However, the very act of invoking Chapter VII means that the Security Council has rejected the claim that this is an internal matter for the FRY. Thus Article 2(7) does not come into play as the Kosovan conflict is not a matter which is essentially within the domestic jurisdiction of the FRY (to use the language of 2(7) ). Article 2(4) can be rejected because the Nato operation is aimed at neither the ‘territorial integrity’ or ‘political independence’ of the FRY. In fact, a contradiction highlighted by Jeremy Paxman on the first night of the operation was that Nato is acting to preserve that territorial integrity, by acting to secure an agreement that will (they hope) delegitimise those who argue in favour of independence.
The writers mentioned at the beginning of this article have tended to focus upon elements of international law other than the UN Charter. Last week, The Guardian raised the question of whether the FRY was in breach of the Genocide Convention. On the most serious three of the five definitions of genocide contained within the Convention, the FRY was found to be guilty. The Convention is important because it gives states the right to act in order to stop genocide. As such, it is significant that in the last two weeks George Robertson and Robin Cook have argued that was has been happening in Kosova is genocide, and thus under the terms of the Convention Nato has the right to act. Elsewhere, I have argued that the consistent abuse of human rights in contravention of huge tracts of international legislation means that Milosevic has abrogated his privilege of sovereign inviolability. This claim has specific resonance in the case of the FRY. The very acceptance of the FRY’s existence by the international community, in 1996, was made dependent upon guarantees on the part of the FRY government that human rights and minority rights would be upheld by the new state. As this has clearly not been the case, it is possible to argue that the FRY has no legal character and therefore that it is not possible to commit an illegal use of force against it.
There is one final set of legal arguments, propounded by Noel Malcom, that have not been widely articulated in the West. This is the argument that Kosova is not legally part of Serbia and thus the current FRY offensive is an act of illegal aggression against Kosova. In 1912, Serbia conquered Kosova from the Ottomans. Under Serbian and international law at the time, changes to borders were only legal if signified by a ratified treaty between the two states involved. There was no such treaty. In 1918, Kosova became a constituent part of the Kingdom of Serbs, Croats and Slovenes, the forerunner of Yugoslavia. It did not become a part of Serbia. Under the terms of all the constitutions of post-war Yugoslavia, Kosova was a constituent unit, though one denied the theoretical right of secession. In 1991, the break-up of Yugoslavia was legally defined not as secession but as dissolution, thus socialist Yugoslavia of which Kosova was a constituent unit no longer exists. According to the Badinter arbitration commission the constituent units of Yugoslavia (Badinter did not say republics) had the right to independent statehood. For political rather than legal reasons this right was denied to Kosova. Furthermore, the current FRY is not described as the legal successor of the former Yugoslavia, instead it is seen as a completely new state. We need to ask therefore, ‘when did Kosova join this new state?’ If the answer is that it hasn’t, there can be no doubting the legality of the Nato operation or of the Kosovar Albanian claim to independence.
The law on the subject of intervention is extremely complex, and the purpose of this article has been to explore the arguments surrounding the intervention in the skies of Kosova and FRY. Some argue that Nato is undermining the UN, whilst others point out that it is supporting the UN by acting to fulfill three Security Council Resolutions. There can be no doubting that the FRY has contravened international law, but by acting Nato is pointing the way towards a solidarist understanding of the law. The legal protestations of the FRY, Russia and China need to be taken seriously, but it also needs to be recognised that international law is about much more than the UN Charter. Delving beneath the surface of this specific case reveals we find that in legal terms the international community could do greater damage to the FRY – denying its legal existence and its right to rule in Kosova, but this case also reveals the extent to which law and politics go hand in hand. It looks as though the Kosovar Albanians will be the victims of that nexus once again.