CIAO DATE: 03/02
|
|
|
|
2001 (Volume 12 Issue 3)
The study of NATO military involvement in the Yugoslav crisis since 1992 is essential to understand the evolution of the Alliance which led to the recent intervention in the Federal Republic of Yugoslavia. During the crisis, NATO forces found themselves involved in military activities which went well beyond those foreseen in the 1949 Treaty. It is argued that NATO forces' activities may be construed either as the collective action of member states coordinated through the Alliance, or as the action of the Alliance itself functioning as a regional organization under Chapter VIII of the UN Charter. This essay attempts to assess, under both alternatives, the legality of these activities, bearing in mind their heterogeneity. Special attention is paid to the relationship between NATO and the United Nations, and in particular to the effectiveness of the control exercised over the operations authorized by the Security Council. It emerges that the Alliance has operated in an increasingly uncertain legal framework and cannot postpone any more a new definition of both its institutional structure and its role in maintaining international peace and security.
The breakdown of Yugoslavia and the ensuing war has called into question many formerly uncontested principles of international law. Perhaps the most far-reaching challenge to the traditional international law doctrine was brought about by the NATO intervention in Kosovo. Many authors cite this event as a proof that a new right to humanitarian intervention is evolving or has already come into being. The aim of this article is to show that conventional positions have been abandoned far too easily in this context. Not only is this change of position unwarranted on legal grounds but it is also counterproductive on the factual level. Despite all its shortcomings the prohibition of the use of force may constitute in the end a better protection for the weak than its abandonment prompted by an over-enthusiastic belief in the virtues of the intervenor.
Notwithstanding the unique conditions of its deployment, KFOR does not act in a legal vacuum. As an entity deployed under UN auspices and by virtue of its exercise of public authority in Kosovo, it is bound by provisions of international human rights and humanitarian law to the extent of its control over individuals there. There are at least three different modalities through which international human rights law may apply to the conduct of KFOR soldiers in Kosovo: the mandate of Resolution 1244; the human rights obligations of the Federal Republic of Yugoslavia; and the human rights obligations of the governments of the national contingents of KFOR. All of the national governments of the various KFOR contingents are bound by the Geneva Conventions, which form the core of modern humanitarian law. As Kosovo may be considered occupied territory, the humanitarian law of occupation is applicable. Further, the failure of KFOR troops to meet international standards for the treatment of individuals may give rise to individual state accountability. Finally, should KFOR or its participating states choose to declare a derogation, they would remain bound by the minimum standards provided by humanitarian law.
The 1999 NATO bombing campaign against the Federal Republic of Yugoslavia relied upon modern precision weaponry and purported to pay due regard to contemporary legal standards, in particular to the requirement to limit incidental civilian casualties. There are no such things as error-free wars or casualty-free wars. It appears, however, that NATO classified a wider range of objects as military objectives than has traditionally been the case, in particular the RTS broadcasting station headquarters in Belgrade. It also appears that some earlier bombing campaigns (the 1972 'Linebacker 2' campaign against North Vietnam which was conducted at the dawn of the era of precision weapons is an example) were conducted paying equal regard to the requirement to limit incidental civilian casualties.
The author analyses the report on the NATO bombing campaign against Yugoslavia, prepared by the Review Committee created by the ICTY's Prosecutor, and observes that the recommendation that no investigation be commenced because 'either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence' appears prima facie questionable. The author points out the shortcomings of the Committee's 'Work Program' arising from the unbalanced evidence on which the Committee's statements are founded and by the restriction of the collateral damages of the campaign to the civilian casualties. Moreover, the Committee's assessment of general issues (damage to environment, legality of weapons, target selection, proportionality) shows a poor grasp of legal concepts, and deviates from well-established ICTY case law. The Committee's assessment of specific incidents is also characterized by shortcomings: inter alia, the report frequently slips from the level of individual criminal responsibility to that of state responsibility. In his conclusion, the author observes that other fora are likely to verify some of the incidents occurring during the bombing campaign. Proceedings have started before the European Court of Human Rights and there are grounds for the European Court to affirm its jurisdiction.
A report to the Prosecutor of the ICTY concludes that there was no sufficient reason to institute proceedings against persons responsible for the NATO bombing campaign against Yugoslavia. The following rules of international humanitarian law were analysed in the report: protection of the environment in times of armed conflict; prohibition on attacking civilian objects; and the limitation of admissible collateral damage according to the proportionality principle. In relation to the protection of the environment, the report is too restrictive as it combines the test provided for by Protocol I Additional to the Geneva Conventions with a proportionality test. In relation to the protection of civilian objects, or the definition of military targets, the report practically sticks to the traditional assumption that traffic and communications infrastructure always constitutes a military objective. It fails, despite some lip service to the contrary, to ask the necessary critical question as to the real contribution of that infrastructure to the military effort of Yugoslavia. The proportionality principle requires a balancing of military advantage and civilian damage. The report's view concerning the value system which has to inspire this balancing process is highly questionable, in particular taking into account the humanitarian purpose of the entire operation.
There is much talk in international law about 'liberalism'. The term means many things but is too often taken to mean only one. This essay is intended to act as an historical gloss on some contemporary debates featured elsewhere concerning the meanings of liberalism and the possible consequences of adopting liberal positions in international law. The author aims to accomplish three ends here. First, he distinguishes between two different but familiar liberal conceptions of international community. The author calls these Charter liberalism and liberal anti-pluralism. Secondly, the author discusses the tension between these two conceptions during two periods of innovation in the international system, namely, the late-Victorian era and the Conference at San Francisco to establish the United Nations Organization. Thirdly, he turns to the contemporary version of liberal anti-pluralism and contrasts two variants of this new liberal anti-pluralism, mild and strong, before showing how each of them constructs the problem of the 'outlaw state'.
This article contends that the move to recast liberal international relations theory in positivist terms has undermined its status as a political theory, and that attempts to use such a theory as the basis of a liberal international legal theory undermine its proponents' capacity to reason normatively about international change, a crucial quality of a mature international legal theory. Politics, it will be argued, lies at the intersection of instrumental and ethical deliberation and action, an intersection that actors are drawn towards by the imperatives of practical, collective action. The 'New Liberalism' in international relations abandons the political in two ways: it expels normative reflection and argument from the realm of legitimate social scientific enquiry; and it embraces a rationalist conception of agency that reduces all political action to strategic interaction. This 'positive' theory lacks the philosophical resources to inform the articulation of a mature liberal international legal theory, a theory that coherently mediates between the pragmatics of social and political circumstance, the practice of rule interpretation, and the prescription of new norms.
In this paper, which comments upon a recent decision of the French Cour de Cassation, an attempt is made to offer an evaluation of the status of international customary law on the question of jurisdictional immunity of Heads of State. It is submitted that under international customary law Heads of State (like other state officials) do not benefit from functional immunity for international crimes. Some acts of terrorism may have become international crimes under customary law and, consequently, exclude the operation of functional immunity for Heads of State. On the other hand, personal immunity should be considered as an appropriate protection for Heads of State, as it ensures virtually absolute immunity while the Head of State is in office (but ceases with the termination of official functions).