The goal of our project is to have a closer look into the definition of humanitarian intervention itself and to the term relating to the case study that we chose. The main topic is humanitarian intervention in Kosovo in 1999. We are also examining the history of humanitarian intervention. Regarding the case study, we are doing the overview of it, history of Kosovo and analyzing the events that occurred before and also after intervention. We are taking into consideration all the agencies and organizations that have been interfered into the situation. We are doing a critical analysis on the humanitarian intervention in Kosovo, concerning if it was, or not, a justified action. The last part is describing the current situation.
The empirical part of our project consists of a comparative approach towards primary and secondary literature analysis combined with database research. For the analysis mostly secondary literature was used, however when analyzing the exact resolutions, primary source of data were studied. By the end of our research we came into conclusion that intervention in Kosovo was inevitably. United Nations, as an organization has put tremendous effort, but the question about legitimacy of NATO’s military action presents a clear answer: NATOs military operation during the Kosovo war was illegal under international law.
They were neither mandated by the UN Security Council, nor justifiable for reasons of gross violation of humanitarian law. But by the end, mostly all of the international community accepted it as a legitimate thing. However, the situation is still very complicated and not solved. Kosovo is struggling with other problems, but some progress has been made.
The legal status of humanitarian intervention poses a profound challenge to the future of global order. The central question is easy to formulate but notoriously difficult to answer: Should international law permit states to intervene militarily to stop a genocide or comparable atrocity without Security Council authorization? The question has acquired even greater significance in the wake of military interventions in Kosovo and Iraq, and nonintervention in the Sudan. Concerned deliberation on these issues, however, has reached in impasse. A key obstacle to legalizing unilateral humanitarian intervention is the overriding concern that states would use the pretext of humanitarian intervention to wage wars for ulterior motives. However, when NATO used military force against the Yugoslav state, it did not have authorization from the Security Council, but it was not condemned either.
This is because veto-wielding countries held strong positions on both sides of the dispute. The concern that states would exploit a humanitarian exception to justify military aggression has long dominated academic and governmental debates. This concerns pits the virtues of humanitarian rescue against the horror of having expanded opportunities for aggressive war. Dating back to Grotius, proponents of legalizing humanitarian intervention have struggled with the objection that their proposals would be abused as a pretext for war.
The proponents were most influential in the late nineteenth century-admittedly a period in which international law permitted states to use force on many and varied grounds. In the contemporary era, however, the proponents have essentially lost the debate. The fact is the terms of discussion have shifted at various points, and NATO’s intervention in Kosovo, has in particular spurred one of the most nuanced discussions about the propriety of the unilateral humanitarian intervention and the ability to regulate it in the post-Cold War period (Goodman 2006, 107-10).
2 – ABOUT HUMANITARIAN INTERVENTION
Intervention is a highly politically charged term that that often involves the use of force. In a broad sense, it refers to external actions that have effects in the domestic affairs of a sovereign state (Nye, Jr 1993, 132). The more traditional meaning of the term is based on dictatorial interference, which involves one or more states pressuring another to change its policies or even the character of its government. A newer sense of the term concerns humanitarian intervention, either by states of IGOs using force to cross the border of a state to stop gross violations of human rights (Henderson 2010, 229). Both types of intervention violate the cardinal principle of state sovereignty.
The illegality of dictatorial interference is fairly clear, but the prominence that human rights has achieved in recent times as a jus cogen or inviolable norm now challenges the much older principle of sovereignty (Henderson 2010 229-31). J.L Holzgrefe (2003, 18) defines humanitarian intervention as the threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights or individuals other than its own citizens, without the permission of the state within those territory force is applied. He also exclude two types of behavior occasionally associated with the term. They are: non-forcible interventions such as the threat or use of economic, diplomatic, or other sanctions; and forcible interventions aimed at protecting or rescuing the intervening state’s own nationals.
Holzgrefe (2003, 19-23) especially emphasize the question of whether states may use force to protect the human rights or individuals other than their own citizens. As seen there is no standard or legal definition of humanitarian interventions. Differences in definition include variations in whether humanitarian interventions is limited to instances where there is an absence of consent from the host state; whether humanitarian intervention is limited to punishment actions; and whether humanitarian intervention is limited to cases where there has been explicit UN Security Council authorizations for action. There is however, a general consensus on some of its essential characteristics: 1. Humanitarian intervention involves the threat and use of military forces as a central feature.
2. It is an intervention in the sense that it entails interfering in the internal affairs of a state by sending military forces into the territory or airspace of a sovereign state that has not committed an act of aggression against another state. 3. The intervention is in response to situations that do not necessarily pose direct threats to states strategic interests, but instead is motivated by humanitarian objectives. There is no state right to humanitarian intervention. No government has under any circumstances the right to violate the territorial integrity and political independence of another state in order to assist, for instance, the starving population of that state. Two arguments for the legitimacy and legality of humanitarian intervention have been made. The first is based on the right to self-defense and concerns unilateral actions, the second invokes chapter VII of the UN Charter and applies to multilateral actions (or actions authorized by the UN Security Council).
The only case that can be made for unilateral intervention is based on the right to self-defence under article 51 of the UN charter. This point is relevant to a discussion of humanitarian intervention because it was made by all three countries, which in recent history undertook unilateral intervention that could legitimately be called “humanitarian” (India, Vietnam, and Tanzania). In other words, not even those who did intervene in humanitarian emergencies based their actions on a universal right to unilateral intervention. Transnational refugee flows or other destabilizing events caused by humanitarian emergencies can be construed as a threat to the national security of the receiving country, and their prevention through humanitarian intervention would thus fall under article 51.
Unilateral action under article 51, however, does not substantially differ from multilateral action under chapter VII insofar as every threat to international peace and security seems to be necessarily a threat to a particular country at the same time. If the flow of refugees from country A to country B poses a threat to international peace and security, it clearly poses also a threat to country B. The crucial difference between self-defense and multilateral action lies in the validation of such a claim by the Security Council in the latter case. Multilateral action enjoys wider acceptance in virtue of its undisputed legitimacy. This holds true even for “peace enforcement” operations, which, unlike “peacekeeping” operations, do not need the consent of all the involved parties to be carried out.
Furthermore, the deployment of military forces not directly involved in the initial conflict ensures (or is intended to ensure) that the troops acting on behalf of the UN do not transgress their mandate to pursue narrow national policies (Vogel 1996; Holzgrefe 2003). The subject of humanitarian intervention has remained a compelling foreign policy issue, especially since NATO’s intervention in Kosovo in 1999. There is a tension between the principle of state sovereignty – a defining pillar of the UN system and international law – and evolving international norms related to human rights and the use od force. Moreover, it has sparked normative and empirical debates over its legality, the ethics of using military force to respond to human rights violations, when it should occur, who should intervene, and whether it is effective.
Humanitarian intervention has a long history. Three European powers-England, France, and Russia-intervened in Greece in 1827 to stop massacres by Turkey, and France intervened again in Syria in 1860 to stop the killings of Maronite Christians. Various European powers intervened in defense of Christians also in Crete (1866-1868), the Balkans (1875-1878) and Macedonia (1903-1908). Doctrine followed to justify practice, with one analyst justifying humanitarian intervention as the use of force to protect victims of arbitrary and persistently abusive treatment by their own governments. At the same time, the growing anti-colonial narrative pointed to the underlying reality of commercial and geopolitical calculations cloaked in the language of humanitarian and religious motives, as well as the paternalism of the European colonial powers.
As a result, “humanitarian intervention” as a doctrine was discredited in large parts of the world gaining independence from colonial rule. The theory and practice of military intervention was circumscribed also by gathering effort to put increasingly strict limits on the right of states to wage war as unilateral policy. The fetters of the Covenant of the League of Nations were reinforced normatively by the 1928 Kellog-Briand Pact outlawing was and followed by proscriptions in the UN Charter on the use of force except for self-defense or when authorized by Security Council.
Developments that were inimical to intervention in the post 1945 period included the growth of will and capacity in former colonies to resist intervention, the erosion of the post-colonial Western will to intervene, the enhanced power of the Soviet Union, a general balance of power which worked in favor of the targets of intervention against interveners, and a new climate of international legitimacy unfavorable to interventions in general, and to Western intervention in particular. The history of interventions by states is long, but in practice states have followed a restrictive view of the Charter’s law on the use of force, with virtually every resort since World War II being condemned or arousing strong controversy (Weiss and Daws 2007, 392-8).
3 – KOSOVO: a case study
3.1 – Overview
Kosovo is a disputed territory in the Balkan Peninsula, corresponding to the area known as Dardania in the Antiquity. The territory was part of the Roman, Byzantine, Bulgarian, Serbian and Ottoman empires and, in the twentieth century, passed into the hands of the Kingdom of Serbia, the Italian Empire and Yugoslavia. After the failure of international negotiations to reach a consensus on an acceptable constitutional status, the provisional government of Kosovo unilaterally declared itself an independent country of Serbia on February 17, 2008. It was recognized the day after by countries such as the United States and some European countries (France, Portugal and Germany) but the territory is still claimed by Serbia and has not yet received recognition from other countries like Russia and Spain, which creates a very instable area that concerns the international community, leading it to the set of a strong humanitarian intervention initiated in 1999 and that still remains in the province. Regarding Kosovo’s most relevant information what is needed to know about its political, social, geographical and economical aspects are: A) Most of Kosovo’s population is Albanian descent.
There is a Serb minority which represents approximately 5% of the population of Kosovo. B) The Republic of Kosovo is a parliamentary representative democracy, where the President (currently Atifete Jahjaga) is the head of state. The judicial power is independent, and the legislative power is exercised by the Kosovo Assembly. C) Kosovo is a “country” in development. Most of the economic development since 1999 occurred in the sectors of construction, commercial trade and retailing. The industrial sector remains weak, and the electricity supply is unreliable, which serves as a crucial obstacle to its development. Unemployment remains endemic, affecting 40-50% of the workforce. The United Nations Interim Administration Mission in Kosovo (UNMIK) has introduced customs administration in the country and a foreign trade regime on September 3, 1999.
The euro is the official currency in Kosovo, used by UNMIK and governmental bodies. D) The population of Kosovo is composed mostly of Muslims, while the rest of the population belongs to either the Roman Catholic Church or the Serbian Orthodox Church. Muslims living in the country are mostly Albanians and Turks. Albanian Christians are largely Catholic. Among the inhabitants of Serbian nationality, almost all are members of the Serbian Orthodox Church (reason why this Orthodox churches must be protected by barbed wire and guarded by the army of the UN).
3.2 – History
The Romans called the region by Dacia, and used it as a boundary between the Western Roman Empire and the Eastern Roman Empire. Later, in the fifteenth century the region was invaded by Turkish-Ottomans which forced the population, mainly from Albania and Bosnia, to convert to Islam as a way of guaranteeing their occupation. The autonomy of the region would only happen after the First World War, when the Austro-Hungarian, Russian and Ottoman empires ended. With the fall of the three great empires that dominated the region, the Balkans constituted their own government that was created by the Treaty of Paris in 1919. The Treaty provided the autonomy of the Kingdom of Serbia, Croatia and Slovenia that would later be called the Kingdom of Yugoslavia. In World War II, in opposition to the Nazis, the Communist League of Yugoslavia aroused, led by Josef Broz, known as Tito.
Tito, in 1945, managed to restructure the various ethnic groups of the region as states within the Socialist Federated Republic of Yugoslavia. For forty years, the region was able to stabilize. At that time, approximately eighty percent of two million inhabitants of Kosovo were ethnic Albanians. While the Serbs were, therefore, a minority within the Kosovo population, Kosovo had an important part in Serb history and culture and contained some of the most important churches and monasteries of the Serbian Orthodox Church. With Tito’s death, however, separatist tensions led to the disintegration of Yugoslavia. Kosovo remained largely peaceful throughout the conflicts of 1991-95 which marked the collapse of the SFRY, the independence of Bosnia-Herzegovina, Croatia, Slovenia and Macedonia and the creation of the Federal Republic of Yugoslavia (FRY) by Serbia and Montenegro.
While there were warnings to the FRY about excessive use of force in Kosovo during this period and attempts by the OSCE to maintain a presence there, the status of Kosovo as part of Serbia (and thus of the FRY) was not questioned by the outside world and, in contrast to the population of the republics which made up the SFRY, the Kosovars were not generally perceived as possessing a right of self-determination. In particular, the Dayton Peace Agreement, which ended the conflict in Bosnia-Herzegovina in 1995, did not deal with Kosovo. In 1990’s, however, saw the growth of a separatist movement among the Albanian majority in Kosovo. As part of that movement Albanians increasingly boycotted official institutions in Kosovo and established their own unofficial bodies in parallel. By 1998 there had also emerged a paramilitary separatist movement, the “Kosovo Liberation Army” (KLA) which embarked on a campaign of violence against the Serbian and FRY authorities and those co-operating with them.
By March 1998 terrorist activity by the KLA and increasingly repressive action by the FRY army and Serbian police, including killing of 58 Albanians (most of them civilians from one extended family) at the beginning of March, led the Security Council to adopt, on 31 March 1998, the first of a series of resolutions on Kosovo. The resolution imposed an arms embargo on all parts of the FRY. While affirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, the resolution called for a substantially greater degree of autonomy and self-administration for Kosovo. Although it did not contain a formal determination that the situation in Kosovo constituted a threat to international peace and security, it was adopted under Chapter VII of the Charter of the United Nations and such a determination must, therefore, be deemed to be implicit.
During the next few months, however, the United Nations Secretary-General reported the violence in Kosovo intensified and that the numbers of Kosovars becoming refugees in neighboring States or displaced persons within the FRY had increased to 230 000. The Secretary-General warned that, if the FRY Government persisted with its policies, it could transform what is currently a humanitarian crisis to humanitarian catastrophe. The gravity of the situation was noted by the Security Council in a Presidential Statement of 24 August 1998. A further report by the Secretary-General in September 1998 commented that there had been a sharp escalation of military operations in Kosovo, as a result of an offensive launched by the Serb forces. On 23 September 1998 the Security Council adopted resolution 1199 (1998). It was adopted under Chapter VII and the decisions were legally binding. This time, the recognition that there was a threat to international peace and security was explicit. Three days after the adoption of this resolution, however, eighteen Kosovo civilians were killed when FRY forces used mortars and the fight continued.
On 13 October 1998, therefore, the North Atlantic Council issued activation orders for air strikes against the FRY to commence four days later unless the FRY complied with the requirements od resolution 1199. The air strikes did not take place, because of a package of agreements negotiated in the last minute between Richard Hoolbrooke of the United States of America and Slobodan Milošević, then president of the FRY. The conclusion of the agreements was welcomed by the Security Council in resolution 1203 (1998). On January 1999 the Kosovo Verification Mission (KVM) reported that FRY soldiers and Serbian special police had been responsible for a massacre at the village of Račak in Kosovo. The FRY refused any investigation on this issue, even though resolution 1203 (1998) required to do so.
After that some more agreements were maid between the FRY/Serbian authorities and the Kosovo Albanian parties under the auspices of the international “Contact group” (France, Germany, Italy, Russian Federation, United Kingdom and USA). None of the talks were successful. On 22 March 1999 Dr Javier Solana announced that he had given authority for air strikes to begin. The NATO air campaign commenced on 24 March 1999 and lasted until 10 June 1999. On 26 March 1999 was determined that the NATO action constituted a threat to international peace and security. On 28 April 1999 the FRY filed with the International Court of Justice applications against ten NATO states, accusing them of the illegal use of force and violations of the Genocide Convention 1948. On 10 June 1999 the Security Council by fourteen votes to none, with China abstaining, adopted resolution 1244 (1999).
The adoption of this resolution followed the acceptance by the FRY of principles for a settlement drawn up by the G8, European Union and the Russian envoy and marked the end of conflict. The resolution also created a United Nations civil administration (UNMIK) and authorized the deployment to Kosovo of an international military force, described as an “international security presence” (KFOR (Greenwood, 2002). Since the end of the Kosovo war in 1999, the status of the territory remains a sensitive and complex matter for the entire Balkan region. Several meetings and discussions were organized by the United Nations to reach an agreement on the issue, but with no success. In March 2007, the UN mediator Martti Ahtisaari presented a report, which was immediately referred to the Security Council by Secretary-General Ban Ki-moon.
The report attested that “the best plan recommended was a supervised independence for Kosovo, under the supervision and support of the international civil and military presence,” stressing that “independence was the only option to ensure political stability and economic viability to Kosovo.” The UN plan was backed by the United States and the European Union (EU), but rejected by Serbia and Russia, who threatened to use its veto power in the Security Council. It’s important to highlight, however, that it is only since 2006 that the EU has formally proposed to send a mission to support the Kosovo authorities. It was just a few weeks before the unilateral declaration of independence by Common Action 2008/124/CFSP, that the Council of the European Union created, on 4 February 2008, the European Union Rule of Law Mission in Kosovo , known as EULEX . It is in this context that Kosovo unilaterally declared its independence on 17 February 2008.
Soon, France, Germany, UK, Italy and the United States formally recognized Kosovo’s independence. Many other countries followed the decision. However, some countries, mainly Russia (traditionally an ally of Serbia who feared an expansion of the EU on the Balkans) and Serbia, stubbornly refused to recognize Kosovo’s independence, citing its illegality and creating a dangerous precedent for international relations. The Serb minority then, started to held daily manifestations and extended its boycott to the central institutions. The unilateral declaration of independence increased tensions, which were felt even within the EU, since some of its members, such as Spain, refused to recognize Kosovo’s independence. Therefore, the UN and NATO continued to act under Resolution 1244, which gave Kosovo “substantial autonomy” but not an independent status. UNMIK did not comment on the status of Kosovo, but gradually transferred its responsibilities to EULEX, whose support would allow the government of Kosovo to assume responsibilities of sovereignty.
UNMIK made a transfer of its part to EULEX, especially concerning issues of police, courts, customs, transport and infrastructure, boundaries and Serbian patrimony. The restructuring of the UN mission ended on July 1, 2009. Serbia still refuses to recognize the declaration of independence, saying that the Kosovo institutions are illegitimate. Considering that, on October 8 2008, the UN General Assembly decided on a resolution (A/RES/63/3) which requested the advisory opinion of the International Court of Justice (ICJ) on the issue. In July 22, 2010, by 10 votes against 4, the ICJ stated that the unilateral declaration of independence “did not violate any applicable rules of international law.” Oddly enough, this decision only addressed the statement of independence of Kosovo, but not the independence of the territory itself.
Another major breakthrough happened September 9, 2010 when the General Assembly adopted a joint resolution of Serbia and the EU advocating negotiations between Belgrade and Pristina (A/RES/64/298). The resolution was politically neutral, but Serbia continued to reject the unilateral declaration of independence. With the unstable scenario the president of Kosovo, Fatmir Sejdiu, resigned on September 27, just days after the Constitutional Court of Kosovo had declared unconstitutional the accumulation of functions by the president and as a chairman and head of his political party.
Considering that, on February 22 2011 Behgjet Pacolli was elected, but resigned shortly after, on 31/03/2011, after the Constitutional Court found out that his election was illegal. In April, Atifete Jahjaga was elected President on the first round of voting by the Parliament. In short: The Kosovo problem is complex and potentially explosive for historical reasons, since Kosovo is part of Serbia since the time of the creation of the country and is considered the cultural cradle of the same.