Legality of NATO Attack Discussed, John Diamond, AP News 25 March 1999

  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.

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.

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.

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.

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.”

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.”

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 Carpenter 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 offorce – 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 Councilresolution” and he defended Annan’s assertion of U.N. authority.

“If, however, due to one or two permanent members’ rigid interpretation ofthe 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.

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.

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.