6 April 2010

The Kosovo Crisis and the UN - Bahadır Murat Akın

Kosovo, which is formally a southern province of Serbia, has been a case which “exemplifies the ways in which ethnic communities in a multicultural setting may face problems in an environment of domestic hostility and regional rivalry.” However, an even more important aspect of the Kosovo case is that it has “assumed a central role in the regional politics of the Balkans, a shift with strong implications for international security.” Indeed Kosovo has been the place where the “appearance of a unified and vigorous UNSC able to protect international peace and security were to be shattered by a sequence of crises in which the use or threat of the veto power rendered the Council increasingly passive.” Kosovo has also been the place where this dilemma of Security Council of the United Nations was circumvented by the doctrine of ‘humanitarian intervention’ practiced by NATO in 1999. “The status of unilateral or unauthorized humanitarian intervention, in which a state or a group of states act against the sovereignty and territorial integrity of another state in order to prevent a grave humanitarian crisis on its territory, remains controversial. Such was the case in the 1999 war in Kosovo.” But the aftermath has been even more important from the international perspective. The humanitarian intervention at Kosovo has gone beyond the “limited purpose of stopping the atrocities and restoring respect for human rights (and has been) a tool for achieving political goals such as greater political autonomy, self-determination, or independence for particular groups within the country”.With the implications of these actions taken into consideration “Kosovo’s status has been one of the most contentious issues to arise in the aftermath of the disintegration of former Yugoslavia.”

United Nation’s Role
UN’s role in a crisis has been first tested during Iraq’s invasion of Kuwait on 1990. “The UNSC, acting under Articles 39 and 40 of the Chapter VII of the Charter of the United Nations (hereinafter the Charter), reacted swiftly, passing Resolutions 660
and 661, which condemned the invasion, demanded an immediate withdrawal of Iraqi troops and placed economic sanctions on Iraq. See S.C. Res. 660 (August 2,
1990); S.C. Res. 661 (August 6, 1990). Resolution 661 determined that Iraq had failed to comply with paragraph 2 of Resolution 660 demanding its immediate and
unconditional withdrawal from Kuwait’s territory, and as a consequence imposed economic sanctions on Iraq. Unyielding, Iraq ignored a long series of UN Security
Council and Arab League resolutions related to the conflict. One of the most important was UNSC Resolution 678 (S.C. Res. 678 (November 29, 1990)), passed under
Chapter VII of the Charter, giving Iraq a withdrawal deadline of 15 January 1991 and authorizing member states to use “all necessary means to uphold and implement
Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area.” As a result of Iraq’s failure to comply with the UNSC
conditions, a US led coalition launched a massive air campaign codenamed Operation Desert Storm, which was followed by a ground offensive (Operation Desert Sabre), finally resulting in Iraq’s military defeat and withdrawal from Kuwait. S.C. Res. 686 (March 2, 1991) and S.C. Res. 687 (April 3, 1991) regulated the aftermath of the conflict. Parallel to these military operations, the coalition conducted Operation Desert Shield aimed at defending Saudi Arabia from Iraqi invasion.”
The UNSC was so successful in handling Kuwait crisis and following ‘Gulf War’ that it
“presented a textbook example of the application of the Charter’s normative framework for the protection of territorial integrity and sovereignty of a country and the use of enforcement measures under Article VII of the Charter.”
In this context “the triumph of international law in the aftermath of the first Gulf War and the appearance of a unified and vigorous UNSC able to protect international peace and
security” was eminent. But this image would soon be “shattered by a sequence of crises in which the use or threat of the veto power rendered the Council increasingly passive. After the end of the first Gulf War, a series of international events unfolded in such a manner as to bring about an important change in international relations, and arguably in public
international law. As a consequence of the break-up of the Soviet Union in 1991, the
U.S. and its NATO allies became the dominant global military, political and
economic force, with the ability to significantly impact the interpretation of the
normative framework regulating world affairs.”
So the concept of ‘humanitarian intervention’ which was “characterized by the unilateral interpretation of UNSC Resolutions and the use of force bypassing the UNSC altogether” should be considered in this context. Indeed applying no fly zones in Iraq, “the 1998 bombing of Afghanistan and Sudan in Operation Infinite Reach (and) Humanitarian intervention against the FRY( Federal Republic of Yugoslavia) in 1999” have all been practiced under this doctrine. However this “circumvention of the UNSC .., represents a further challenge to the entrenched understanding of peremptory norms of international law.” Indeed “the NATO military intervention of the FRY in 1999 temporarily suspended Serbian sovereignty in Kosovo. The legal framework of this suspension was UNSC
Resolution 1244 (1999), which gave a Chapter VII mandate to the international civilian administration and NATO-led military force.” But UN Resolution came only after the intervention of NATO not before.

NATO’s Role

With the termination of the Cold War and dissolution of the Warsaw Pact, “rationales for NATO's existence also ended. A commonly perceived external enemy is, after all, the main reason for forging an alliance... There is no strategic balance in Europe to keep. NATO is dominant and international laws have become inconvenient. So from then on “What now threatens the states is no longer Russia, which has been transformed more or less inevitably into a partner, or interstate conflicts, but rather ethnic and intra-state issues, problems relating to control of the proliferation of weapons of mass destruction and peripheral conflicts such as that involving Iraq. Most of the threats to strategic
stability are thus outside the NATO area. At the same time, the United States no longer wants to assume sole responsibility for defending the so-called free world and would like to confer new missions on NATO and give its Allies a heightened role in the sharing of these duties.
.. In April 1999 .. the Alliance concluded that its security risks were “complex” and came from “numerous directions”, but ... “maintaining the strategic balance in Europe” was the Alliance’s primary task.10 In the meantime, NATO set new missions for itself. In Oslo, in 1992, it agreed to support case-by-case peacekeeping activities under the aegis of the Conference on Security and Cooperation in Europe (CSCE), which became the OSCE (Organization) in 1994, and ... in response to the growing crisis in the former Yugoslavia, it offered to undertake missions for the UN, subject of course to Security Council authorization.” However this would not be a collaboration as described in UN Charter Article 53 as to “ utilize such regional arrangements or agencies for enforcement action under its authority.” USA explained that it was very important “not to subordinate NATO to any other international body [meaning the UN] or compromise the integrity of its command structure”. To his mind, NATO could of course “act in concert with other organizations, and with respect for their principles and purposes”, but the Alliance must “reserve the right to act, when its members, by consensus, deem it necessary. (Also with regards to) Conflict Prevention and Crisis Management that NATO will strive, “in cooperation with other organizations, to prevent conflict, or, should a crisis arise, to contribute to its effective management, consistent with international law [emphasis added], including through the possibility of conducting non-... crisis response operations”. As may be seen, Washington appears to be making a concession by agreeing to act in accordance with international law, but this clarification is insufficient because it is merely a matter here of ‘seeking, in cooperation with other organizations’, something that is neither restricting nor binding.”
Concept of Humanitarian Intervention
“Because most legal experts agree that NATO’s action against Serbia was illegal, there is no other choice for “other more Libertarian experts cite humanitarian law or law of ‘collective emergency’ to justify NATO’s action...Any flagrant humanitarian law, be it crimes against humanity, violations of human rights, or the Geneva conventions or ethnic cleansing may provide a legitimate basis for action on the part of the international community because all this issues have international consequences and go well beyond the sacrosanct principle of the domestic jurisdiction of states. (In this sense) humanitarian law is just as compelling as the law of treaties freely entered into by states. There are some experts who believe that if the Security Council is incapable of acting, a new norm of intervention by a coalition of states would seem to be entirely justified where large scale atrocities are being committed. ”
In this context “Sean Murphy defines humanitarian intervention as the …threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights.”
However,“ any interpretation based on the right to intervene in the name of humanitarian law is improper in two respects. First, it amounts to stripping the veto of the major powers of any substance, or nullifying the veto ;second, it creates an intolerable precedent, in that it means that a group or coalition of States may now, with no formal authorization from the Security Council, act as it pleases, citing the precedent of Kosovo.”
So humanitarian view underlines that “NATO’s action is objectively illegal (but) there are nonetheless certain bases for that action that are not legal, but justified” regard the Kosovo crisis as a singular case in which NATO decided to act without Security Council authorization out of overwhelming humanitarian necessity, but from which no general conclusion ought to be drawn. .. Rather, the decisive point is that we should not change the rules simply to follow our humanitarian impulses; we should not set new standards only to do the right thing in a singular case.
Hence there is another aspect to the intervention on humanitarian grounds. “ The doctrine of humanitarian intervention, if carried out without the mandate of the UNSC, remains illegal under public international law. However, such action can aspire over time to become legal – provided that it does not go beyond its original limited scope (i.e. to prevent humanitarian catastrophe within a sovereign state). In this way, the imposition of self-determination of
Kosovo on Serbia by the international community, by bypassing the UNSC, in the
case of a potential Russian or Chinese veto, will represent not only a revolutionary
challenge to established fundamental international norms, but also de-legitimize
the original intervention, and, more importantly, compromise the future legal and practical development of the doctrine of humanitarian intervention.”
Even if Security Council would be unanimously favourable to Kosovo’s independence , “ a legal interpretation granting the UNSC the right to trump the territorial integrity of a state is ambiguous due to the fact that such a situation has never occurred outside of the context of decolonization... (Besides) the post-WWII international legal order was heavily marked by such an example (i.e. the allied partition of Germany).
This point brings us to the subject of justifiable conditions of humanitarian intervention

Conditions of Humanitarian Intervention:
“According to Cassese, (who is an international lawyer who has dealt with Yugoslavia case(51), in order for individual cases of humanitarian intervention to become gradually justified from the point of view of international law, it is necessary to respect strict conditions:
1- The humanitarian crisis is substantially serious, amounting to “crimes against
humanity”, and that the sovereign state on whose territory these crimes occur is
either the perpetrator or is unable or unwilling to prevent the violence.
2- If the crime is a result of anarchy in a sovereign state, there must be evidence that the central authority is unable to prevent these crimes before any intervention can take
place. If, on the other hand, the state itself is the perpetrator, then force must
remain the last resort.
3- Unilateral intervention can only occur in the case of a paralyzed UNSC.
4- All peaceful avenues must be exhausted before any intervention.
5- It must be carried out by a group of states, and not by a “single
hegemonic power, however strong its military, political and economic authority,
nor such a power with the support of a client state or an ally. Cassese is arguing
that, in the present world order, the US cannot conduct a humanitarian intervention
alone or with its allies individually (e.g. the UK), but would have to reach a
consensus within NATO before carrying out such action. ..Intervention in the case of Kosovo would fulfil this condition, whereas in the case of the NFZs in Iraq... would not.
6-The gradual legalization of humanitarian intervention can occur only where the
future instances of such unauthorized involvement are strictly confined to the
“limited purpose of stopping the atrocities and restoring respect for human rights,
not for any goal going beyond this limited purpose.” The report of the
International Commission on Intervention and State Sovereignty is even clearer
with regard to the “permissible” goal and outcome of humanitarian interventions:
-…the responsibility to protect is fundamentally a principle designed to respond
threats to human life, and not a tool for achieving political goals such as greater
political autonomy, self-determination, or independence for particular groups within the
country (though these underlying issues may well be related to the humanitarian
concerns that prompted the military intervention). The intervention itself should
not become the basis for further separatist claims.”
In this sense, what has happened in Kosovo with UN resolution 1244 is not acceptable
taken into consideration that “the current international military and civilian administration
in Kosovo is a direct result of the NATO intervention of 1999” Indeed,
UN resolution 1244 Resolution also took “full account of the Rambouillet accords” in the context of the political process leading to “substantial self-government” for the province.
These accords, in Chapter I, Article 1, defined the future structure of Kosovo’s self-government, leaving Serbian authority in the fields of territorial integrity, common
market within the FRY, monetary policy, defence, foreign policy, customs services,
“federal” taxation, “federal” elections, and other areas specified in the Agreement.
So it seems that NATO countries have been in the position “to impose the independence of Kosovo on Serbia. However “it is even doubtful that the S.C. (assuming no Russian or Chinese veto) has legal basis to separate territory from a sovereign country. This has no precedent outside of the colonial context, where the application of a people’s right to self-determination remains unambiguous.”
However, in reverse of the general criteria for humanitarian intervention described above, a report prepared for NATO maintains that final the purpose of the humanitarian intervention should be to provide self determination. “The aim, therefore, of humanitarian intervention is to stop these large-scale violations of human rights and, ultimately, to remedy the violation of the right to internal self-determination. The implicit idea behind accepting humanitarian intervention as a “remedy” is that it is intended to, and should, pave the way for durable solutions with regard to a full respect of the rights of a people living in a territory. What is critical in the face of an intervention is determining that the principle of territorial integrity has to yield in order to defend a set of values enshrined in human rights law.” So it seems that NATO’s action in Kosovo is a clear violation of Article 53 which reads “But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council”;and also Article 2/4 which reads “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Indeed, “ the Independent International Commission on Kosovo concluded in its report that the NATO intervention in Kosovo was “not legal but legitimate”. The Commission simultaneously noted that the intervention was illegal because it did not meet with procedural rules provided by the UN Charter and that the intervention was legitimate because prior to its occurrence all necessary diplomatic means were utilized.”

With the break of Kosovo case, the Kosovo region of former Yugoslavia with population of two million people , has not only “ assumed a central role in the regional politics of the Balkans, but it has marked a big shift in the actions of international and regional organizations and also super powers with strong implications for international security. Indeed Kosovo has been the place where the appearance of a unified and vigorous UNSC, able to protect international peace and security, was to be shattered by a sequence of crises in which the use or threat of the veto power rendered the Council increasingly passive. Kosovo has also been the place where this dilemma of Security Council of the United Nations was circumvented by the ‘humanitarian intervention’ practiced by NATO in 1999. However, the unauthorized humanitarian intervention made by NATO in 1999 at Kosovo has gone beyond the “limited purpose of stopping the atrocities and restoring respect for human rights (and has been) a tool for achieving political goals such as greater political autonomy, self-determination, or independence for particular groups within the country” ,
Just like East Timor case where the UN made a recourse to Chapter VII to re-establish minority rights that had been repressed by Indonesia UN established an administration with a recourse to Chapter VII with the task to bring Kosovo towards autonomy and self-governance within the framework of Yugoslavia following the NATO intervention. However there was two big differences First one was done in the context of non- self governed territories in the process of decolonization with the full consent of Jakarta. In contrast the operation in Kosovo was done by NATO unilaterally and without the permission of the UNSC. Also Kosovo was not a non-self governed colony but a part of a sovereign and UN member state. So after the unauthorized intervention establishing an administration with the task of bringing Kosovo towards autonomy and self-governance was nothing but “to trump the territorial integrity of a state.”

“The the long-term effects of this intervention are rooted in the Kosovo problem. Indeed, one might ask, are NATO and the UN from now on to be involved in a process of “majorization of minorities” and if so, how far should this process be pushed? In other words, where should humanitarian neo-interventionism begin and where should it end? This evolving situation suggests that we are now at the intersection of two phenomena: how to assure human security in the context of “majorization of minorities”?

1) Enika Abazi, “Kosova Independence: An Albanian Perspective”, Policy Brief SETA Foundation for Political Economic and Social Research April 2008 No:11
2) Srdjan Cvijic, “Self Determination as a Challenge to the Legitimacy of Humanitarian Interventions : The Case of Kosovo”, German Law Journal, 2007, Volume :8 No:1,Articles,Special Issue, “What Future for Kosovo?”
3)Alex N. Dragnich, “The Future of Kosovo”, Chronicles ,April 1995
4) Conflict History: Kosovo, International Crisis Group Conflict Preventing and Resolution 25 December 2009
5) Hector Pustina, “Kosovo” GPF Europe
6) Richard Becker, The Rambouillet accord A Declaration of War Disguised as a Peace Agreement, Agenda May-June 1999
7) UN Charter, Internet Official Site
8)“NATO’s Role in Relation to the Conflict in Kosovo: Historical Overviev”,15 July 1999
9) G. C. Thomas, “NATO and International Law”, Kosovo and Yugoslavia: Law in Crisis, Jurist Law Professor’s Network
10) Albert Legault, “NATO Intervention in Kosovo : The Legal Context” Canadian Military Journal, Spring 2000
11) Dajena Kumbaro “ The Kosovo Crisis in an International Law Perspective: Self Determination, Territorial Integrity and the NATO Intervention”- Final Report For North Atlantic Treaty Organization- Office of Information and Press 2001

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