NATO, the UN and the Use of Force: Legal Aspects

NATO, the UN and the Use of Force: Legal Aspects

2 Kosovo: A Thin Red Line

In the case of Kosovo, large-scale violence flared up in late 1997/early 1998. At that stage, the international community took steps to involve itself quickly and strongly, at least compared with earlier sad instances. In March 1998 the Security Council, acting under Chapter VII but without expressly determining that the Kosovo crisis amounted to a threat to the peace, adopted Resolution 1160 (1998), in which the Federal Republic of Yugoslavia and the Kosovar Albanians were called upon to work towards a political solution. In the same resolution, as mentioned earlier, the Council imposed a mandatory arms embargo vis-à-vis both parties. ¹⁰ It emphasized "that failure to make constructive progress towards the peaceful resolution of the situation in Kosovo will lead to the consideration of additional measures". ¹¹

In the days that followed, the situation deteriorated rapidly: fighting intensified and the Serbian security forces as well as the Yugoslav Army used force in an excessive and indiscriminate manner, thus causing numerous civilian casualties, the displacement of hundreds of thousands of innocent persons from their homes, and a massive flow of refugees into neighbouring and more distant countries. In April of 1998, the Contact Group for the Former Yugoslavia agreed, with the exception of the Russian Federation, to impose new sanctions on the FRY. In June, the UN Secretary-General advised NATO of the necessity for a Security Council mandate for any military intervention in Kosovo. However, by that time it had become apparent that the Russian Federation would not agree to such a step.

In September 1998, the Security Council adopted Resolution 1199 (1998) which, also on the basis of Chapter VII, determined that the deterioration of the situation in Kosovo constituted "a threat to peace and security in the region". ¹² The Council demanded the cessation of hostilities, a ceasefire, as well as immediate steps by both parties to improve the humanitarian situation and enter into negotiations with international involvement. The FRY was requested to implement a series of measures aimed at achieving a peaceful solution to the crisis. In conclusion, the Council "[d]ecide[d], should the concrete measures demanded in this resolution and resolution 1160 (1998) not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region".

During subsequent weeks, however, it became clear that Russia would veto any Council resolution containing a mandate or an authorization to employ threats or the use of force against the FRY. On the other hand, it was equally clear that the just-quoted reference to eventual further Council action in Resolution 1199 (1998) was not sufficient in itself to provide a legal basis for the threat or use of armed force by UN Member States or international organizations. Thus, the Security Council was in no position to take the "logical" further step of following up on Resolution 1199 (called a "springboard resolution" by the then German Foreign Minister Kinkel) and finally authorizing enforcement action if the situation did not improve.

At this point NATO took over, as it were. Its members gave the organization the go-ahead for military action if the FRY did not comply with the Council resolutions, and the Alliance prepared for air strikes against the FRY. The principal legal basis for such action was to be the concept of "humanitarian intervention", linked as closely as possible under the circumstances to the UN Charter in order to further gain legitimacy. The NATO position was summarized in the following terms by Secretary-General Solana on 9 October 1998:

The relevant main points that have been raised in our discussion yesterday and today are as follows:

The FRY has not yet complied with the urgent demands of the International Community, despite UNSC Resolution 1160 of 31 March 1998 followed by UNSC Resolution 1199 of 23 September 1998, both acting under Chapter VII of the UN Charter.

The very stringent report of the Secretary-General of the United Nations pursuant to both resolutions warned inter alia of the danger of an humanitarian disaster in Kosovo.

The continuation of a humanitarian catastrophe, because no concrete measures towards a peaceful solution of the crisis have been taken by the FRY.

The fact that another UNSC Resolution containing a clear enforcement action with regard to Kosovo cannot be expected in the foreseeable future.

The deterioration of the situation in Kosovo and its magnitude constitute a serious threat to peace and security in the region as explicitly referred to in the UNSC Resolution 1199.

On the basis of this discussion, I conclude that the Allies believe that in the particular circumstances with respect to the present crisis in Kosovo as described in UNSC Resolution 1199, there are legitimate grounds for the Alliance to threaten, and if necessary, to use force. ¹³

This announcement appears to have made a certain impression on the FRY. In any case, intensive diplomatic efforts, particularly on the part of US Special Envoy Richard Holbrooke, during the following days led to a ceasefire and the conclusion of two agreements: a first agreement of 16 October 1998 between the FRY and the OSCE, providing for the latter to establish a verification mission in Kosovo, and including an undertaking by the FRY to comply with Resolutions 1160 and 1199; and a second agreement between the FRY and NATO, signed on 15 October 1998, providing for the establishment of an air verification mission over Kosovo in order to complement the OSCE mission. According to the first-mentioned agreement,

[i]n the event of an emergency situation in Kosovo which in the judgement of the [OSCE] Mission Director threatens the safety of members of the Verification Mission, the FRY shall permit and cooperate in the evacuation of Verification Mission members [by a NATO Extraction Force]. ¹⁴

Holbrooke further reached an accord with the FRY, according to which negotiations on a framework for a political settlement were to be completed by 2 November 1998.

On 24 October 1998, the UN Security Council returned to the scene again, reacting to the conclusion of the Holbrooke agreements with the adoption of Resolution 1203 (1998). Acting under Chapter VII, the Council formally endorsed and supported the two agreements concluded on 15 and 16 October concerning the verification of compliance by the FRY and all others concerned in Kosovo with the requirements of its Resolution 1199, and demanded full and prompt implementation of these agreements by the FRY. It affirmed that the unresolved situation in Kosovo constitutes a continuing threat to peace and security in the region.

After some time, during which there was an improvement in the humanitarian and security situation in Kosovo, violence increased again, culminating in the events in Racak in mid-January 1999. In response, NATO threats of air strikes were resumed.

On 28 January 1999, UN Secretary-General Kofi Annan, he himself a former special UN envoy to NATO, met with the North Atlantic Council. His statement to the Council includes the following passages:

We must build on the remarkable cooperation between the UN and SFOR in Bosnia to further refine the combination of force and diplomacy that is the key to peace in the Balkans, as everywhere. The success of the NATO-led mission operation under a United Nations mandate is surely a model for future endeavours....

Let me conclude by congratulating you on the upcoming 50th anniversary of the alliance, and wish you all success in your deliberations on devising a new strategic concept for the next century. How you define your role, and where and how you decide to pursue it, is of vital interest to the United Nations, given the long tradition of cooperation and coordination between NATO and the UN in matters of war and peace. I look forward to hearing your views on this matter. ¹⁵

At a press conference in Brussels, the UN Secretary-General, when asked about the preconditions of military intervention in the FRY/Kosovo, is reported to have said that " normally a UN Security Council Resolution is required". ¹⁶

On the same day, NATO Secretary-General Solana made a statement to the press on behalf of the North Atlantic Council, in which he affirmed that NATO fully backed a new initiative of the Contact Group and was ready to employ its military capabilities if necessary. He then added: "You have seen from the visit of the United Nations Secretary-General to NATO earlier today that the United Nations shares our determination and objectives." ¹⁷ On the evening of the same day, following decisions of the Contact Group taken on 29 January 1999 aimed at reaching a political settlement between the parties to the Kosovo conflict and establishing a framework and timetable for that purpose, the President of the Security Council made a statement according to which the Council welcomed and supported the decision of the Contact Group and demanded that the parties should accept their responsibilities and comply fully with these decisions as well as the relevant Council resolutions. Further, the Security Council reiterated its full support for international efforts, including those of the Contact Group and the OSCE Verification Mission, to reduce tensions in Kosovo and facilitate a political settlement. ¹⁸

The next day, Secretary-General Solana repeated the threat of air strikes, if the "requirements of the international community" and all relevant Security Council resolutions were not observed. In this context he welcomed the just-mentioned Presidential Statement. ¹⁹ On 1 February 1999, the FRY representative requested an emergency meeting of the Security Council "following the NATO threats to the sovereignty of [his] country". According to the FRY, "[t]he decision by NATO, as a regional agency, to have its Secretary-General authorize air strikes against targets on FRY territory ... represents an open and clear threat of aggression against the FRY as a sovereign and independent Member State [ sic] of the United Nations. ²⁰ The FRY letter then drew attention to the requirement of UN authorization of enforcement action to be undertaken by a regional organization.

As of March 1999, the international community is expecting the parties to the Kosovo conflict to return to the negotiating table(s) and hammer out the details of a "Rambouillet Agreement". As things currently stand, the Security Council will be requested, in this agreement, to issue a mandate for a NATO-led multinational peace mission (KFOR), involving armed forces of both members and non-members of NATO, to secure the implementation of the "Rambouillet Agreement", by military means if necessary. However, in view of the fact that the future agreement would embody the consent of the FRY to the deployment of a multinational peace force on its territory, NATO and its member states appear to regard a UN Security Council mandate/authorization as politically desirable, but not indispensable, should the veto of a permanent member stand in the way. This at least was the viewpoint taken by the German Government in the parliamentary debate in late February 1999, which led to the Bundestag's approval of German participation in the military implementation of the future "Rambouillet Agreement" as well as in NATO operations within the framework of the Extraction Force. ²¹ A similar view had been expressed earlier on with regard to the effect of the Holbrooke Agreements on the legality of the presence of the OSCE Verification Mission in Kosovo and on that of the eventual evacuation of OSCE Verification Mission members by the NATO Extraction Force. ²²

In contrast, it is said that the current position of the Russian Federation is to call for a Security Council mandate based on Chapter VI in addition to an agreement with the territorial sovereign. If this condition were met, it appears that Russia would also be willing to participate in a NATO-led multinational peace mission in Kosovo.

Thus stands the chain of events relevant in the present context. In the following, these facts will be assessed in relation to the law set out in Section 1 above.

First, contrary to the standpoint taken in the FRY's request of 1 February for an emergency Council meeting, NATO is not a regional organization in the sense of Chapter VIII of the UN Charter. On the part of NATO, this was expressly clarified years ago in a letter addressed by the organization's former Secretary-General Willy Claes to the UN Secretary-General. Consequently, the requirement enshrined in Article 53 para. 1 of the Charter (cf. para. 5 above) for an - express or implicit, prior or ex-post-facto - authorization of enforcement action under regional arrangements or by regional agencies is not formally applicable in the case of NATO. NATO constitutes an international organization on the basis of Article 51 of the Charter; the only "enforcement action" envisaged in this Article is collective self-defence. If NATO now widens the scope of its activities beyond "Article 5 missions", ²³ it leaves the area of relative freedom of action granted by Article 51 of the UN Charter and becomes fully subjected to the legal limits established by the "higher" (cf. Article 103) Charter law intended to contain or prohibit any other, i.e. offensive, kind of coercion or enforcement by military means. Thus, we are back to the basic principle of "no threat or use of armed force except in self-defense or if called for, respectively authorized, by the Security Council". In our case, the requirement of such authorization would result (not from Chapter VIII but) from Chapter VII of the Charter. However, as to the modalities of Security Council authorization, the clarifications developed on Article 53 para. 1 will certainly be applicable by way of analogy. The argument could even be made that legal limitations to be applied in cases of interaction between the UN and regional organizations foreseen by the Charter would have even greater weight vis-à-vis an organization like NATO which is now venturing into the field of "enforcement action against third states (arg. a minori ad majus ). In concrete terms, NATO could be authorized by the Security Council to threaten or use armed force against the FRY not only expressly and prior to such action but also implicitly ex post though not tacitly.

Since, as was shown above, an express authorization of the threat or use of force against the FRY never materialized, the follow-up question would be whether the sequence of Security Council reactions to NATO activities and their results described earlier could be seen as an implicit authorization granted ex post . In favour of a positive reply, one could point to the remarkable degree of "satisfaction", as it were, expressed by the Council in its Resolution 1203 (1998) as well as in the Presidential Statement of 29 January 1999 with the Holbrooke agreements and the subsequent successes of the Contact Group - results causally linked to the NATO threat of imminent air strikes. These signs of political approval could, at any stage, have been prevented by the opposition of any permanent member of the Council. But the Russian Federation chose to remain silent. On the other hand, however, Russia had made it clear in the fall of 1998 that it was not ready to follow up on Resolutions 1160 and 1199 by agreeing to the ultimate step of unleashing armed force against the FRY. This position appears not to have changed since then. In light of this, the view that the positive reception by the Council of the results of NATO threats of force could be read as an authorization of such force granted implicitly and ex post is untenable. But would this not mean that the Security Council has welcomed and endorsed developments brought about in violation of the UN Charter? The question of such illegality vel non will have to be looked at, but independently of a final legal judgment. The fact is that the Security Council, as a political organ entrusted with the maintenance or restoration of peace and security rather than as an enforcer of international law, will in many instances have to accept or build upon facts or situations based on, or involving, illegalities.

In consideration of the foregoing, it may be concluded that the NATO threats of air strikes against the FRY, not having been authorized by the Security Council, are not in conformity with the UN Charter. In this regard, it makes little difference that the threat had not been carried out until now because Article 2(4) prohibits such threats in precisely the same way as it does the actual use of armed force.

Let us now look at the interaction between the UN and NATO from the other, i.e. the NATO, side. Such a complementary perspective might place the legal deficiency just diagnosed in a mitigating context, so to speak.

Indeed, one is immediately struck by the degree to which the efforts of NATO and its member states follow the "logic" of, and have been expressly linked to, the treatment of the Kosovo crisis by the Security Council. In an address delivered in Bonn on 4 February 1999, US Deputy Secretary of State Strobe Talbott referred to an "unprecedented and promising degree of synergy" in the sense that the UN and NATO, among other institutions, had "pooled their energies and strengths on behalf of an urgent common cause"; as to the specific contribution of the UN, he saw this in the fact that "the UN has lent its political and moral authority to the Kosovo effort". ²⁴ Note the silence as to UN legal authority.

Aside from the absence of a formal authorization discussed above, a reading of the relevant Council resolutions together with the respective pronouncements of NATO (members) might lead an observer to conclude that the two sides acted in concert. The most remarkable illustration of this is the way in which SC Resolution 1203 (1998) welcomed and endorsed the agreements between NATO/OSCE and the FRY brought about (or at least, helped along) by the unauthorized NATO threats.

If we analyse the reasoning behind the announcement of NATO that armed force would be used if the FRY did not desist from further massive violations of human rights (cf., above all, Secretary-General Solana's letter of 9 October 1998 ²⁵), we see that it follows two lines: first, it evokes elements of the doctrine of "humanitarian intervention" without calling it by name; but secondly, and much more pronouncedly, it refers to, and bases itself on, the UN Charter and Security Council as well as other UN action concerning Kosovo wherever and in whatever way possible. Above all, it draws attention to SC Resolutions 1160 and 1199 and the fact of FRY's non-performance of the obligations deriving from them under the Charter. Further, the letter leaves no doubt that it is the United Nations which represents the international community in its concern for the Kosovo crisis and formulates the respective community interests. Thus, NATO tries to convince the outside world that it is acting "alone" only to the least degree possible, while in essence it is implementing the policy formulated by the international community/United Nations; it is filling the gaps of the Charter, as it were, in a way that is consistent, in substance, with the purposes of the UN. And, as already mentioned, then follows SC Resolution 1203 endorsing and building upon NATO action. Similarly, the Presidential Statement of 29 January 1999 welcomes and supports the achievements of the Contact Group following renewed NATO threats after the massacre at Racak - in the words of US Deputy Secretary of State Strobe Talbott, thus lending "its political and moral authority to the Kosovo effort".

Considering this interaction, or "synergy", between the United Nations and NATO, one can agree with the view of the then German Foreign Minister Kinkel, according to whom NATO, in the state of humanitarian necessity in which the international community found itself in the Kosovo case, acted in conformity with the "sense and logic" of the resolutions that the Security Council had managed to pass. The NATO threat of force continued and backed the thrust of SC Resolutions 1160 and 1199 and can with all due caution thus be regarded as legitimately, if not legally, following the direction of these UN decisions.

However, despite all this "synergy", closeness and interrelatedness of NATO and UN engagements in the Kosovo crisis, there is no denying the fact that a requirement of Charter law has been breached.

This deficiency did play a central role in the deliberations of the Parliament of the Federal Republic of Germany ( Bundestag) in mid-October 1998 in relation to German participation in NATO air strikes. In these debates, the international legal issues involved were discussed at great length and in considerable depth. The respect for UN Charter law demonstrated throughout the debates was remarkable. Such deference became particularly apparent in the critical discussion of the absence of a Security Council authorization. The German Federal Government, while recognizing this legal flaw, argued that the situation in Kosovo was so desperate as to justify the NATO threat, even without UN authorization, in a state of humanitarian necessity leaving no choice of other means. In this regard, differently from the NATO Secretary-General, the Government called a spade a spade and spoke of the NATO threat as an instance of "humanitarian intervention". The Bundestag finally gave its approval to German participation in the NATO action. But it was stressed by all voices in favour of such participation, in particular by the Federal Government, that German agreement with the legal position taken by the Alliance in the specific instance of Kosovo was not to be regarded as a "green light" for similar NATO interventions in general. To quote Foreign Minister Kinkel before the Bundestag:

The decision of NATO [on air strikes against the FRY] must not become a precedent. As far as the Security Council monopoly on force [ Gewaltmonopol] is concerned, we must avoid getting on a slippery slope. ²⁶

This statement will also be relevant for Section 3 of this article. Whether the denial of precedential value expressed in it, which runs like a red thread through the German parliamentary debate, will have the desired effect cannot of course be decided by Germany alone. But what is of great importance is the emphasis on the part of both the German Federal Government and the Bundestag on the singularity of the Kosovo case from which no conclusion on a general rule or policy is to be drawn.

To briefly review two more technical issues: to characterize the NATO threat of armed force against the FRY as "humanitarian intervention" does not fit the standard schema, as it were, of this controversial notion. Within the categories of international legal self-help and enforcement, these threats rather constitute reprisals, or countermeasures, intended to induce the FRY to comply with its obligations arising, in a first phase, from general international law and the relevant Security Council resolutions, and, in a second phase, from the Holbrooke Agreements of October 1998. However, such characterization does not change the result of the legal analysis: as already mentioned at the outset, countermeasures (reprisals) involving the threat or use of armed force are prohibited under international law, irrespective of any good humanitarian intention behind them, except if authorized by the Security Council under Chapters VII or VIII of the Charter.

The second observation relates to the view that, since a "Rambouillet Agreement" would incorporate the consent of the FRY to the presence of the NATO-led multinational peace force in Kosovo, KFOR would possess a sufficient legal basis even without a Security Council mandate authorizing it. As mentioned earlier, the Russian Federation appears to regard a UN mandate based on Chapter VI as necessary but also as sufficient for the same purpose.

These views seem convincing only in as much as what is envisaged in Kosovo remains within the purview of classic peacekeeping; that is, of a mission not involving the use of armed force. If, however, KFOR is eventually to engage in "robust" peacekeeping (consider, for instance, the issue of disarming the KLA), a legal basis for the presence and activity of KFOR in the form of FRY consent appears only rather fragile, and a critical departure from former practice. Further, it is not to be expected that in a "Rambouillet Agreement" the FRY will consent expressly to the use of armed force by KFOR, if necessary, against the Yugoslav army and police (consider the extremely guarded formula concerning action by the NATO Extraction Force within Kosovo in the Holbrooke Agreement of 16 October 1998 ²⁷). In view of the explosive environment in which KFOR is to operate, a Chapter VII mandate in addition to the consent of the territorial sovereign appears highly desirable, to say the least.

By way of conclusion to this section: whether we regard the NATO threat employed in the Kosovo crisis as an ersatz Chapter VII measure, "humanitarian intervention", or as a threat of collective countermeasures involving armed force, any attempt at legal justification will ultimately remain unsatisfactory. Hence, we would be well advised to adhere to the view emphasized and affirmed so strongly in the German debate, and 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. What is involved here is not legalistic hair-splitting versus the pursuit of humanitarian imperatives. 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 single case. The legal issues presented by the Kosovo crisis are particularly impressive proof that hard cases make bad law.

10SC Res. 1160 of 31 March 1998.

11 Ibid, para. 19.

12 SC Res. 1199 of 23 Sept. 1998.

13 Letter from Secretary-General Solana, addressed to the permanent representatives to the North Atlantic Council, dated 9 October 1998, document on file with the author.

14 38 ILM (1999) 24.

15 Document on file with the author.

16 Document on file with the author (emphasis added).

17 NATO Press Release [99] 11.

18 S/PRST/1999/5.

19 NATO Press Release [99] 12.

20 Document on file with the author.

21 Cf. Deutscher Bundestag , 14. Wahlperiode, Docs. 14/397 and 14/414; see further the report of the members of the Auswärtiger Ausschuß (foreign relations committee) of the Bundestag annexed to the second document, at 5.

22 Cf. the passage from the agreement of 16 October 1998 quoted supra in text at note 14.

23 On the internal, "constitutional" aspects of this development see infra Section 3.

24 Manuscript on file with the author, at 9.

25 Reproduced verbatim supra text at note 13.

26 Deutscher Bundestag, Plenarprotokoll 13/248, 16 October 1998, at 23129)

27 See text supra at note 14.

28 Supra note 20.

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