This article by John Diamond is a good summary of the discussion that took place about the legality of NATO’s 78-day bombing campaign of Serbia in 1999. We had added some notes in red to provide further context and information that has emerged over the 22 years since the article was published.
Thursday March 25 1999 1:27 PM ET
Legality of NATO Attack Discussed
By JOHN DIAMOND Associated Press Writer
WASHINGTON (AP) – Legal justification for the U.S.-led NATO air
Offensive against Yugoslavia is written in no diplomatic charter, international law or U.N. Security Council resolution. At best, scholars say, the Clinton administration can rely on an unwritten principle that allows intervention to protect people besieged by their own government. [‘Unwritten principles’ do not and should not overrule carefully crafted international laws and treaties. Finding devious ways around good laws has become a favourite pastime for some politicians and NGOs (see for example former UK Foreign Secretary David Miliband’s recent call in The Guardian of 21 December 2021 for veto powers to be taken away in ‘mass atrocity cases’ even though many atrocity claims have been to be untrue or greatly exaggerated).]
The administration lists a range of practical and political reasons for the attack. The trouble in Yugoslavia could spread to neighboring states, President Clinton said. Belgrade has failed to abide by international agreements. But for the strikes, Yugoslavia would continue attacks on the independence-seeking ethnic Albanians in the Kosovo province of Serbia. [All these reasons have now been discounted as untrue].
International legal scholars see scant legal backing for the NATO action beyond the unwritten principle of “humanitarian intervention” that permits nations to violate the sovereignty of another to stop widespread human rights abuses.
“I don’t know any neighboring state that’s been threatened, and I don’t see how this (attack) can be self-defense,” said Allan Gerson, a senior fellow in international law at the Council on Foreign Relations. As for Yugoslavia’s refusal to settle the Kosovo crisis peacefully, he said, “I don’t know of any precedent that gives you the right to go to war against any party that refuses to reach a settlement at the peace table.” But Gerson said the strictures of international law must move aside in an emergency. “When you have massive human rights abuses, it’s important that you respond immediately,” he said.[But not if the claims are untrue, as is so often the case].
Asked specifically to explain the legalities of the strikes, State Department spokesman James Rubin cited three factors: Yugoslavia’s Failure to negotiate seriously to avoid further conflict in Kosovo, its failure to comply with its own earlier cease-fire agreement and the renewed Yugoslav offensive in Kosovo. [All these claims were false. Yugoslavia continued to negotiate to the very end. It was only when the US introduced new and wholly unacceptable demands, kept secret until well after the bombing had started, that talks broke down – as the Americans had intended they should.]
Attorney General Janet Reno said Thursday the Justice Department had told the White House that U.S. participation in the NATO mission “was constitutionally and otherwise lawfully authorized.”[But of course giving no detailed reasons to back up this judgement. In reality, the NATO mission clearly contravened the UN Charter, the NATO Charter, all the international laws relating to the sovereignty of states and a raft of other legislation.]
Anthony Arend, a professor of government at Georgetown University and co-author of a 1993 book, “International Law and the Use of Force,” said there is “a customary practice adopted since 1945 that allows states to intervene in any number of circumstances to promote justice.”[Does he mean a power within the UN Charter, which has never been amended since it was agreed in 1945? If so, this is nonsense. The UN Charter had deliberately excluded any such provision because the USSR and other founding members of the UN had made it plain that they would not join the organisation if such a power were included in the UN Charter.]
Yugoslav President Slobodan Milosevic has repeatedly cast the strikes as a violation of his country’s sovereignty.
In Moscow, Russian President Boris Yeltsin called the strikes “outright aggression.” Russian Foreign Minister Igor Ivanov said the military action “has no justification, legal, political or moral.”
Ted Galen Carter of Washington’s libertarian Cato Institute said the administration was “guilty of committing a flagrant, shameful act of aggression” by “attacking a country that has not attacked the United States, a U.S. ally or even a neighboring state.”
The U.N. Security Council has passed no resolution authorizing the use of force – indeed, permanent members Russia and possibly China would have vetoed such a proposal.
The Security Council “should be involved in any decision to resort to force,” said U.N. Secretary-General Kofi Annan.
The U.N. charter permits the use of force in self-defense if a country is attacked from the outside, but the Kosovo case is internal to Yugoslavia. The charter recognizes regional organizations such as NATO but permits their use of force only if the United Nations specifically authorizes it. Further, the charter explicitly orders member states to refrain from the use of force against the territorial integrity of any state.
The Dutch ambassador to the United Nations, Peter van Walsum, said NATO would “prefer to be able to base its action on a specific Security Council resolution” and he defended Annan’s assertion of U.N. authority. [Unfortunately Annan did not go on to take any action against NATO and its backers – though it was clearly his duty under the UN Charter to do so. The Americans judged they were untouchable and so it proved.]
“If, however, due to one or two permanent members’ rigid interpretation of the concept of domestic jurisdiction, such a resolution is not attainable, we cannot sit back and simply let the humanitarian catastrophe occur,” van Walsum said at Wednesday’s Security Council meeting.[If there is believed to be a humanitarian crisis taking place, any decision on intervention should be referred to UN General Assembly. The limited discretion given to the Security Council should not be used to invoke special powers where internal conflicts are taking place within a sovereign state and claims of humanitarian emergency are frequently made without hard evidence for overtly political purposes. The suggestion that a ‘rigid interpretation of the Charter’ could not be tolerated is outrageous. Laws have to be respected and followed, or changed by a proper constitutional process.]
A formal treaty dating to the founding of the United Nations after World War II not only empowers, but requires nations to intervene to stop genocide, according to Neil Kritz of the United States Institute for Peace. [What treaty?]
While Yugoslav forces have been accused of carrying out massacres of Kosovar civilians, international officials have not yet termed the situation in Kosovo a genocide. [We learned soon after the war had ended that no such massacres had taken place. Final estimates showed that some 4,000 people had died during the Kosovo War on all sides and that NATO bombing causalities accounted for half this total.]