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Kosovo: A “Good” or “Bad” War?

Published online by Cambridge University Press:  02 March 2017

Christine M. Chinkin
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Abstract

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Type
Editorial Comments: Nato’s Kosovo Intervention
Information
American Journal of International Law , Volume 93 , Issue 4 , October 1999 , pp. 841 - 847
Copyright
Copyright © American Society of International Law 1999

References

1 Regina v. Bow Street Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827.

2 NATO’s five objectives were stipulated as non-negotiable: an end to the killing by Yugoslav army and police forces in Kosovo, withdrawal of those forces, the deployment of a NATO-led international force, the return of all refugees, and a political settlement for Kosovo. See Guakdian, May 11, 1999, at 2. For the principles for a political settlement adopted by the Group of Eight Foreign Ministers on May 6, 1999, see SC Res. 1244, Annex 1 (June 10,1999).

3 Agreement on the Principles (Peace Plan) to Move towards a Resolution of the Kosovo Crisis, UN Doc. S/1999/649, reprinted in SC Res. 1244, supra note 2, Annex 2.

4 See Barbara Stark, What We Talk about When We Talk about War, 32 Stan. J. Int’l L. 91 (1996).

5 Notably, in the International Court of Justice in the case brought by Yugoslavia against the NATO states. While the respondents denied the Court’s jurisdiction for the ordering of interim measures, they also emphatically asserted the legality of their actions. See Legality of Use of Force (Yugo. v. UK), Oral Pleadings, ICJ Doc. CR/99/23, para. 7 (May 11, 1999). The Court rejected Yugoslavia’s application on June 2, 1999 <http://www.icj-cij.org/icjwww/idecisions.htm>.

6 For a detailed analysis of the legality of NATO action (prior to the bombing campaign), see Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 Eur. J. Int’l L. 1 (1999).

7 NATO engineered just such an amendment by extending the Council-mandated arms embargo to a maritime blockade on oil supplies to Yugoslavia from third states, despite no mention of oil in Resolution 1160 of March 31, 1998. See Philippe Sands, Oil Blockade Threatens International Law of the Sea, ASIL Insight (Apr. 1999) <http://www.asil.org> (reproducing id., Reuters, Apr. 28, 1999).

8 E.g., SC Res.1199 (Sept. 23,1998); SC Res. 1203 (Oct. 24, 1998).

9 Legality of Use of Force, Oral Pleadings, supra note 5, para. 17 (quoting UK Permanent Representative in the Security Council, Mar. 24, 1999).

10 E.g., Boutros Boutros-Ghali, An Agenda for Peace, UN Doc. S/24111 (1992); Supplement to An Agenda for Peace, UN Doc. A/50/60–S/1995/1 (1995).

11 E.g., SC Res. 1160, supra note 7 (the OSCE, the European Union and the contact group); SC Res. 1199, supra note 8 (the contact group, the European Community Monitoring Mission); SC Res. 1203, supra note 8 (NATO, among others, but only with respect to its providing an air verification mission over Kosovo).

12 See Supplement to An Agenda for Peace, supra note 10, para. 86.

13 The United States has used armed force, either alone or in conjunction with allies, three times since 1998 without the authorization of the Security Council—in Afghanistan and Sudan, Iraq and the Federal Republic of Yugoslavia. See Simon Chesterman & Michael Byers, Has US Power Destroyed the UN? London Rev. Books, Apr. 29, 1999, at 29.

14 The use of ferce in collective self-defense is provided for in the North Adantic Treaty, Apr. 4,1949, Art. 5, TIAS No. 1964, 34 UNTS 243.

15 Individual duties are provided for in the African Charter on Human and Peoples’ Rights, June 17,1981, Arts. 27–29, 21 ILM 59 (1982); the American Convention on Human Rights, Nov. 22, 1969, Art. 32, 1144 UNTS 123. The European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 UNTS 221, has no such provision.

16 In particular, the disruption of shipping on the Danube through die destruction of bridges.

17 UN Charter Art. 50.

18 Mary Robinson, UN High Commissioner for Human Rights, Report on the Human Rights Situation involving Kosovo (Apr. 30,1999) <http://www.unhchr.ch/html/menu2/5/kosovo/kosovo_main.htm>.

19 GA Res. 53/141 (Mar. 8, 1999). The focus of these statements is measures “of a coercive nature with all their extraterritorial effects.” The same rejection must apply to the use of armed force. Compare Committee on Economic, Social and Cultural Rights, The Relationship between economic sanctions and respect for economic, social and cultural rights, General Comment 8, UN Doc. E/C.12/1997/8.

20 SC Res. 1244, supra note 2, preamble.

21 UN interim administration [UNMIK] is the only government in Kosovo says Bernard Kouchner (Secretary-General’s Special Representative in Kosovo and head of UNMIK, which is exercising legislative and executive power) (July 30, 1999) <http://www.un.org/peace/kosovo/news/99/jul99_4a.htm> [hereinafter Kosovo Archive].

22 While UN institutions played a limited role during the military campaign, a number are actively involved in the aftermath, including the UN High Commissioner for Refugees, UNICEF, the World Population Fund, the UN Development Programme, the World Health Organization, the UN Environment Programme, the human rights bodies, the International Criminal Tribunal for the former Yugoslavia, and the World Bank.

23 Kofi Annan has argued that this “underscores” the Security Council’s continuing indispensability. See Kosovo Archive, supra note 21, July 19, 1999.

24 Sophie Watson, The State of Play: An Introduction., in Playing the State 3,10 (Sophie Watson ed., 1990).

25 The cooperation of the Kosovar Albanian leadership in the Transitional Council and the KLA in disarming is especially important. See Kosovo Archive, supra note 21, Aug. 5 and July 16, 1999.

26 One commentator has commented on the “feminisation” of this conflict by the unwillingness to take risks with ground forces. Andrew Marr, War is hell—but not being ready to go to war is undignified, and embarrassing, Observer, Apr. 25,1999, at 28.

27 Security Council Resolution 1207 of November 17, 1998, deplores the continued failure of the Federal Republic of Yugoslavia to cooperate with the Tribunal.

28 See SC Res. 1244, supra note 2, para. 9. The jurisdiction and mandate of the Tribunal are merely recalled in the preamble.

29 See Anne Orford, Locating the International: Military and Monetary Interventions after the Cold War, 38 Harv. Int’l L.J. 443 (1997).

30 See Stark, supra note 4, at 99.

31 “UNHCR is spending about 11 cents a day per refugee in Africa. In the Balkans, the figure is $1.23, more than 11 times greater.” T. Christian Miller & Ann M. Simmons, Relief Camps for Africans, Kosovars Worlds Apart, L.A. Times, May 21, 1999, at A1.

32 “The UN’s consolidated humanitarian appeal for Kosovo is $690 million, of which 58% has been met, while $2.1 billion has just been pledged for regional construction. A UN appeal for $25 million for Sierra Leone met profound international indifference and a mere 32% of the appeal has been covered.” Victoria Brittain, Unrealistic humanitarians, Guardian, Aug. 4, 1999, at 16.