Yash Aggarwal

The North Atlantic Treaty Organization’s (NATO’s) intervention in Kosovo spotlights the tension between the principle of state sovereignty forbidding intervention in the internal affairs of a nation and the need for “humanitarian” intervention stemming from the international community’s moral obligation to stop or prevent large scale violations of human rights. The right to intervene collectively is well established where threats to international peace and security are involved and are acknowledged as such. In the absence of such threats to peace and security, however, unilateral intervention by a state or group of states primarily to safeguard human rights rests on dubious legal grounds. Thus, despite the fact that NATO’s intervention in Kosovo was applauded as a moral imperative based on humanitarian grounds, it has raised serious questions concerning the legality of breaching this divide in Kosovo . In terms of realpolitik, however, NATO’s intervention has had the effect of further blurring this shifting dividing line, perhaps rendering it elusive.

In an attempt to critically assess the implications of NATO’s intervention in Kosovo on the sanctity and usefulness of maintaining this legal divide, and hopefully clarifying the conditions under which future “humanitarian” intervention may be justified, this paper: 1) briefly traces the history of the ethnic conflict in Kosovo leading up to the events that prompted NATO’s intervention; 2) explores the tension between state sovereignty and human rights; 3) assesses the legal underpinnings of humanitarian intervention from a doctrinal as well as from the perspective of customary law derived from state practice; and 4) puts NATO’s intervention in context, contrasting it to previous interventions such as India’s 1971 armed invasion of East Pakistan and Tanzania’s 1979 armed intervention in Uganda.

It is the thesis of this paper that, where deprivations of human rights reach genocidal proportions, unilateral “humanitarian intervention” by a state or group of states signatory to the Genocide Convention is justified. In all other cases, where deprivations of human rights fall short of Genocide, unilateral humanitarian intervention without authorization of an international body such as the United Nations (UN) Security Council is illegal. Secondly, an analysis of state practices since 1945 shows that none of the historical interventions constitute a clear precedent for unilateral humanitarian intervention where human rights abuses fall short of genocide. Thirdly, NATO’s intervention in Kosovo is deemed to be a humanitarian intervention par excellence, that sets a precedent for unilateral intervention by a group of states or a regional organization without the express authorization of the UN Security Council.

Historians trace the origins of the current conflict in Kosovo to 1389, when the Turks conquered Kosovo and brought the region under the domination of the Ottoman Empire that lasted for the next 500 years. [FN1] During the Ottoman domination the ethnic mix of the population in Kosovo changed drastically. The Christian Orthodox Serbs moved out and the Albanian Muslims moved in, constituting at present almost 90% of the population of about 1.8 million inhabitants. [FN2] Also, many Christians in the adjacent province of Bosnia-Herzegovina, who were persecuted by both the Orthodox Serbs and Catholic Croats, converted to Islam. While the conversion to Islam afforded the Bosnians an opportunity to attain legal equality and gave them certain privileges, the subjugated Croats and Serbs viewed the conversion as the ultimate heresy, and the seeds of ethnic conflict began to take root. [FN3]

After struggling under the Turkish domination for 300 years, present-day Croatia came under the control of the Catholic Hapsburgs, who allowed the Croats to develop their own culture within the confines of Hapsburg Catholicism. [FN4]

With the collapse of the Ottoman and the Hapsburg Empires at the end of World War I, Kosovo became part of the emergent state of Yugoslavia dominated by Serbs. [FN5] Ethnic animosities and political conflict in Yugoslavia continued between the Serbs, Croats and the Muslims comprising the three major ethnic groups. The Nazis invaded Yugoslavia in 1941, defeating the Serbs, and after World War II Marshal Tito and the communists took control of Yugoslavia. Under Tito’s leadership and Communist opposition to religious factionalism, the Federal People’s Republic of Yugoslavia (FPRY), consisting of six republics ( Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia) and two autonomous regions (Kosovo and Vojvodina), managed to suppress the forces of political ethnic dissension. [FN6] Soon After the death of Tito, however, and the general collapse of Communism in Eastern Europe, political dissension born of age old ethnic animosities reemerged and the present conflict resulting in the break-up of Yugoslavia took hold.

Under Marshall Tito, the province of Kosovo had enjoyed relative autonomy since 1974. On March 23, 1989, the Serbian government under the leadership of Slobodan Milosevic, however, unilaterally revoked Kosovo’s autonomous status and brutally crushed the demonstrations that followed. [FN7] In July 1990, the Serbian government dismissed all Albanian political institutions in Kosovo after a referendum in Serbia approving constitutional changes that stripped the provinces of Kosovo and Vojvodina of their autonomy, and began a systematic policy of ridding Kosovo of its Albanian heritage and promoting Serbian nationalism. In response, Kosovo’s political leaders created a shadow government; declared the revocation of its autonomous status as unconstitutional; approved on September 7, 1990 a constitution making Kosovo a republic within Yugoslavia; declared on October 19, 1991 Kosovo to be an “independent” nation; and on May 24, 1992 conducted popular elections, electing Ibrahim Rugova as president of Kosovo. [FN8]

This course of events in Kosovo had an enormous deleterious effect on the Yugoslav Republics, fearful of domination by Serbia. On September 27, 1990, the Slovenian parliament declared that it would no longer apply federal legislation within the Republic of Slovenia [FN9], and set in motion a series of events that led to the dissolution of the Federal People’s Republic of Yugoslavia (FPRY). The break-up led to the emergence of independent Republics of Slovenia, Croatia, Macedonia, and Bosnia-Herzegovina, and a smaller Yugoslav federation comprising Serbia and Montenegro that included the former autonomous provinces of Kosovo and Vojvodina.

The struggle for independence from Yugoslavia, however, was not without bloodshed. Hostilities spread from Slovenia to Croatia and then to Bosnia-Herzegovina, during which the federal Serbian forces aligned with Serb minorities in Croatia and Bosnia-Herzegovina fought to retain or gain control. [FN10] The policy of “ethnic cleansing”, or the systematic removal of members of one ethnic group by another in an attempt to change the ethnic mix of the territory, was born during this struggle to gain control. [FN11] Although all sides committed atrocities, Bosnian Serbs allegedly committed most of the reported abuses including rape, murder, and starvation. [FN12] One report estimated that by the end of 1992, Serb forces had killed as many as 200,000 Bosnian Muslims or almost 10% of the Muslim population. [FN13]

On May 22, 1992, the UN General Assembly admitted the Republics of Slovenia, Croatia and Bosnia-Herzegovina as members of the UN, recognizing the de facto secession of these provinces from the former Yugoslavia. [FN14] On October 6, 1992 the UN Security Council voted unanimously to establish a war-crimes commission to collect evidence of human rights violations in the former Yugoslavia. [FN15] The creation of a tribunal to try the cases followed suit in late 1993. [FN16] Nonetheless, hostilities continued in Bosnia-Herzegovina until the Dayton accords of 1995 ended the war in Bosnia. [FN17]

Kosovo, however, was not on the agenda of the Dayton conference, and the disillusionment among the Albanian Kosovars at the international community’s response to their plight grew into anger when the European Union recognized the new Republic of Yugoslavia, comprising Serbia and Montenegro, with Kosovo as a part of Serbia. [FN18] The struggle for independence that was thus far largely peaceful and sought its objectives through non-violent civil disobedience gradually turned violent. [FN19] The fledgling Kosovo Liberation Army (KLA) founded in 1993 got its first opportunity to procure significant quantities of weapons in 1997, when law and order in the neighboring state of Albania collapsed in the wake of a financial scandal and threw its armories open. [FN20] KLA sympathizers in Germany and elsewhere raised the money needed to buy the weapons. [FN21]

By March 1998, the KLA had taken credit for several bombings of Serbian targets [FN22], and Serbian policemen whose patrols had come under fire killed a number of people connected with the KLA, sometimes whole families. [FN23] Kosovo exploded. The ranks of KLA that numbered only a few hundred swelled, and the KLA found itself swept along by an uprising that it tried to control, [FN24], and by July 1998 controlled roughly one third of the territory. [FN25] The Serbs at first shocked by the scale of the uprising fell back, leading the KLA commanders to believe that they were winning. [FN26] This illusion, however, was short lived, and the Serbian counter attack in the summer of 1998 sent 250,000 Albanian Kosovars fleeing for their lives while the KLA retreated into the hills. [FN27]

Shocked at the turn of events in Kosovo, and dreading the consequences of the continuation of the Serbian offensive in Kosovo on the plight of the refugees and on neighboring Macedonia, NATO threatened to bomb Serbia unless it stopped its offensive. In October, 1998 Richard Holbrooke, the American special envoy and architect of the Dayton accords, succeeded in getting Slobodan Milosevic, the Yugoslav president, to agree to reduce his forces in Kosovo and accept the presence of a “verification force” from the Organization for Security and Cooperation in Europe (OSCE) that includes NATO members and Russia among others. [FN28] The deal, however, failed to produce peace as the Serbs and the KLA jostled for advantage on the ground, and Chris Hill, the US. Ambassador to Macedonia, shuttled between Belgrade and Kosovo to bring the parties to the negotiating table. [FN29]

Until the end of the Second World War, international relations were primarily premised on the idea of a world consisting of sovereign states, in which individuals were mere objects and not subjects of international law possessing certain inalienable human rights. In such a world order, the principle of state sovereignty ruled supreme and respect for human rights was not an international concern, although, at times the United States and the European powers had intervened in the civil strife of other countries to protect their own nationals [FN32] or, arguably, for humanitarian considerations. [FN33].

Hedley Bull, writing in The Anarchical Society, describes sovereignty as independence from any outside authority; an idea from which flow the norms of equality of rights of states and nonintervention in the internal or domestic affairs of a state. [FN34] Both of these norms are enshrined in the Charter of the United Nations, and Article 2(4) of the Charter specifically prohibits the threat or use of force against another state.

Nonintervention has two main functions. [FN35] The first is to minimize interstate conflict and prevent or manage anarchy; for, without the restraint imposed by the norm of nonintervention, the principle of sovereignty could easily lead to conflicts stemming from the arrogant belief in the right of a state to wage war to settle scores. The second function is to preserve a state’s autonomy, allowing it, and by extension its citizens, to choose a socio-political system without outside interference.

This norm aimed at containing interstate conflict and ensuring state autonomy is at the heart of the international legal system’s commitment against external intervention in the internal affairs of a state, and is enshrined in a series of international treaties and other documents. For example, the Charter of the Organization of American States (OAS) adopted on April 30, 1948 mandates:

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements.

Similarly, Article 2(7) of the UN Charter places restraints on itself in this matter:

"Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII."

Although the above prohibition contained in Article 2(7) of the UN Charter is qualified by reference to Chapter VII under which the UN Security Council reserves the right to make determinations of existence of threats to peace or breaches of peace and take appropriate action, Articles 1(2) and 55 affirm the “principle of equal rights and self determination of peoples” and Article 2(4) requires UN members “to 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.” These and other restrictions imposed by the UN Charter, however, do not impair “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” [Article 51 of the Charter]

While the principle of state sovereignty and the norms of non-intervention and equality of rights of states are enshrined in the UN Charter, its preamble also affirms faith in “fundamental human rights,” and Article 1(3) declares the achievement of international cooperation “in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” to be one of its principle purposes along with the maintenance of international peace and security.

The 1948 Universal Declaration of Human rights (UDHR) goes farther than the UN charter, in explicitly linking respect for human rights to the maintenance of international peace and recognizing that the “inherent dignity and equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The adoption of the UDHR by the UN General Assembly (December 10, 1948), along with the Convention on the Prevention and Punishment of the Crime of Genocide (December 9, 1948, hereafter Genocide Convention), and the four Geneva Conventions (August 12, 1949) updating the laws of war, marked a turning point. Henceforth, principles apart from state sovereignty (i.e. human rights) begin to interject themselves in the evolution of international relations.

The UDHR, although not binding, recognizes that everyone, without distinction as to the political, jurisdictional or international status of the country or territory to which the person belongs, is entitled to certain human rights that include but are not limited to the right to life, liberty, security of the person, and freedom from being subjugated to slavery, torture or cruel, inhuman or degrading treatment.

The Genocide Convention makes “genocide, whether committed in time of peace or in time of war”, a crime under international law which the contracting parties undertake to prevent and to punish. Article II defines genocide to mean an act committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. This Article enumerates five such acts that include murder, serious bodily or mental harm, preventing births, transferring children of the target group, and imposing conditions of life calculated to physically decimate the target group. Further, Article III makes genocide, complicity in genocide, and conspiracy, attempt, or direct and public incitement to commit genocide, punishable acts. Finally, common Article 3 of the Geneva Conventions requires parties to an armed conflict not of an international nature (intra-state conflict) to refrain from committing crimes against humanity including murder of civilians, taking of hostages, outrages against personal dignity, and passing extra-judicial sentences.

While recognizing that a spectrum of actions from mere debate to condemnation or economic sanctions to military involvement may constitute intervention, it is commonly agreed that prohibited intervention consists of some form of objectionable or “dictatorial” interference in the affairs of another state. [FN36] In fact, the International Court of Justice has confirmed that acts of prohibited intervention must be coercive, and be aimed at thwarting choices by the target state that under international law must remain free. [FN37] Furthermore, as a practical matter, the term humanitarian intervention is further narrowed to threat or use of armed force, and mere evaluations of a state’s human rights policies or practices without any enforcement action is not considered to be objectionable interference in the internal affairs of a state. [FN38]

The adjective “humanitarian” is equally broad and a spectrum of actions that seek to promote the well being of individuals, improve their status, or protect human rights may qualify as humanitarian actions. For the purposes of this paper, however, I shall adopt a working definition of humanitarian intervention advanced by Murphy [FN39]:

Humanitarian intervention is the threat or use of force by a state, group of states, or international organization primarily for the purposes of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights.

It is noteworthy that, under this definition, armed force used to protect or rescue the nationals of the intervening state residing or present in the target state would not be strictly considered humanitarian intervention, even though such intervention might be motivated by humanitarian concerns. This distinction is useful and proper to the extent that intervention to protect or rescue one’s own nationals has gained greater acceptance in international relations [FN40] and might find legal justification in the principle of self defense, whereas humanitarian intervention as defined above rests on more dubious legal grounds as aptly stated by the 1987 Restatement (Third) of the Foreign Relations Law of the United States, section 703:

Whether a state may intervene with military force in the territory of another state without its consent, not to rescue the victims but to prevent or terminate human rights violations, is not agreed or authoritatively determined. Such intervention might be acceptable if taken pursuant to resolution of a United Nations body or of a regional organization such as the Organization of American States.

The salient question, therefore, is under what circumstances is humanitarian intervention legal. An answer to this question must resolve the contradictions inherent in the principle of state sovereignty and the imperatives of protecting human rights, reconcile the apparent differences between the UN Charter, in particular Article 2(4), and the human rights conventions or declarations such as the UDHR and the Genocide Convention, and be internally consistent.

The answer perhaps lies in the definition of the term humanitarian intervention, as stated above especially with regard to the phrase “widespread deprivations of internationally recognized human rights”, viewed in relation to the dictates and limitations imposed simultaneously by the UN Charter and the human rights conventions and declarations. The definition raises two questions: 1) what are internationally recognized human rights, the abuses of which potentially merit intervention, and 2) what is the threshold of abuse that triggers intervention. In attempting to answer these questions and reconcile the contradictions alluded to earlier, I shall differentiate abuses that reach genocidal proportions from those that do not but still shock the conscience of the international community and merit intervention, and consider separately their doctrinal underpinnings.

There is indeed a plethora of human rights as recognized in the UDHR, but obviously all rights are not equal and some rights such as the right to life, liberty, security of person, and freedom from persecution because of one’s race, religion, or ethnic origin can be considered to be fundamental or elementary and as such being universally recognized. Clearly, the threshold can be presumed to have been reached where atrocities are committed with the aim of decimating a national, ethnical, racial or religious group in violation of the Genocide Convention. In such instances, I submit, that the matter is no longer an internal affair of the signatory state in whose territory such violations are committed, but a matter of concern common to the international community, notwithstanding any claims to the contrary by the affected state. In fact, Article 1 requires the contracting parties to prevent genocide, and there is nothing in the Genocide Convention that prohibits a state or group of states signatory to the treaty from using threats or use of force against another signatory state that commits such atrocities. In contrast, it is noteworthy that the Additional Protocol (No.II, concluded June 8, 1977) to the Geneva Conventions, that develops and supplements common Article 3 requiring the parties to an intra-state armed conflict to refrain from committing crimes against humanity including murder of civilians and passing extra-judicial sentences, explicitly prohibits intervention by making it clear that “nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.” [Article 3(2), Additional Protocol (No.II)]

In instances where abuses of human rights do not reach genocidal proportions and hence do not fall within the purview of the Genocide Convention, but nevertheless shock our collective conscience, the problem of deciding whether the legal threshold for intervention is reached is much more complex and inextricable. This dilemma, however, is easily resolved if the decision to make such determination and authorize intervention is vested in an international organization, and not left to either the intervening state(s) or to the beneficiary of the intervention. The UN Security Council, in fact, has the authority under Article 39 of the Charter to make determinations of existence of any threat to peace or breach of peace and decide what measures shall be taken in accordance with Articles 41 and 42 to maintain or restore peace. Article 42 provides for armed intervention, in the event other less drastic means including economic sanctions envisioned in Article 41 prove to be or are deemed to be inadequate. Thus, the Security Council has the authority to find “widespread deprivations of internationally recognized human rights,” committed by a state or occurring within its boundaries, to constitute threat to peace and prescribe appropriate measures including the use of armed force and restore peace and security.

Next, I briefly discuss interventions that post date the UN Charter and are allegedly considered humanitarian by one or more writers and put each one of them in context bearing in mind the definition of humanitarian intervention adopted here and its doctrinal underpinnings elucidated above. The purpose here is not to enter into extensive analyses of the factors that led to these interventions, but to accept those facts in each case that may be considered incontrovertible and determine whether the case in question constitutes a precedent for “unilateral” humanitarian intervention. For this purpose, much of the factual observations in each case that follows are taken from Teson [FN41], an ardent supporter of “humanitarian intervention” in international relations and who attempts to make the case that these interventions constitute precedent. I, however, reach a different conclusion based on the definition and legal considerations of humanitarian intervention discussed above.

India’s Intervention in East Pakistan, 1971

On December 16, 1971, India achieved victory in a war against Pakistan that resulted in the breakaway of East Pakistan or the province of Bengal from Pakistan, creating the independent state of Bangladesh. Pakistan was then a nation geographically and ethnically divided into two parts, East and West Pakistan, physically separated by more than a thousand miles of Indian territory. A military dictatorship ruled Pakistan, and West Pakistanis dominated its political and economic life. The more populous Bengalis were relegated to “second class” citizens, and their demands for greater political voice and economic autonomy for East Pakistan had been largely ignored by successive Pakistani governments. [FN42]

Free elections were held in November 1970, and the Awami League won all but two of the 169 seats reserved for East Pakistan, giving them a comfortable majority in the Pakistani National Assembly. [FN43] General Yahya Khan, the president of Pakistan, however, postponed indefinitely the National Assembly, aggravating the discontent in East Pakistan. On March 23, 1971, Sheikh Mujibur Rehman, the Awami League leader, issued a “Declaration of Emancipation.” West Pakistan’s reaction was swift and devastating. On March 25, 1971, the West Pakistani army struck Dacca, the capitol city of East Pakistan and unleashed a systematic reign of murder and terror that can be “legally characterized as genocide.” [FN44] It is estimated that at least one million people died and millions more fled the country to India. [FN45] The Report of the International Commission of Jurists states:

The principal features of this ruthless oppression were the indiscriminate killing of civilians, including women and children and the poorest and weakest members of the community; the attempt to exterminate or drive

out of the country a large part of the Hindu population; the arrest, torture, and killing of Awami League activists, students, professional and business men and other potential leaders.....; the raping of women; the destruction of villages and towns; and the looting of property. All this was done at a scale [sic] which is difficult to comprehend. [FN45]

The influx of millions of refugees into India, more than 8 million by one estimate, caused extreme hardship to India’s economy, and the suffering in refugee camps reached horrifying conditions. [FN46]. After some border clashes with the Pakistani army, the Indian army invaded East Pakistan, formally recognizing Bangladesh as an independent state on December 6, 1971. The war ended on December 16, 1971 with the surrender of the Pakistani army, and in time India withdrew its forces from Bangladesh.

India’s intervention can be viewed from three distinct but inseparable perspectives. First, it can be characterized as a humanitarian intervention consistent with the definition adopted here. Secondly, it can be viewed as aid to East Pakistan seeking to exercise its right of self-determination. Thirdly, it can be interpreted as an act of “self-defense” that sought to stop and relieve the human and economic hardships created in India by the Pakistani actions in neighboring East Pakistan. Irrespective of the differing objectives and motivations that one may ascribe to the Indian intervention, the indisputable fact remains that the atrocities committed by the Pakistani army reached genocidal proportions. Therefore, the Indian intervention did not require to be sanctioned by the Security Council, and is deemed legal as per the thesis of this paper expounded earlier, both India and Pakistan being signatories to the Genocide Convention. Thus, I conclude that the Indian intervention does not set a precedent for unauthorized unilateral humanitarian intervention where atrocities do not reach genocidal proportions, but may well be considered a precedent for situations where genocide occurs.

The Tanzanian Intervention in Uganda, 1979

In April 1979 the brutal rule of Idi Amin came to an end in Uganda as a result of Tanzania’s armed intervention and the domestic uprising against his regime. The Tanzanian action was the result of a series of events. In October 1978, the Ugandan troops invaded Tanzanian territory and occupied the Kagera salient, a border area adjacent to the Kagera River, and on November 1 Amin declared the annexation of the area north of the Kagera salient. [FN47] President Nyerere of Tanzania considered the annexation tantamount to war and expressly stated his intention to act energetically against Amin’s forces. [FN48]. Attempts were made by various outside parties to mediate and resolve the matter peacefully. These attempts by Kenya, the UN Secretary General, president of Mali, the Organization of African Unity (OAU), however, failed to find a peaceful solution. [FN49] Belatedly, Amin offered to withdraw his forces from Tanzanian territory and informed the UN Secretary General that he had ordered the withdrawal. [FN50] His offer, however, was found to be too little too late by President Nyerere, and on November 15, 1979 the Tanzanian troops launched an offensive against Amin’s occupying army. [FN51]

Sensing defeat, Amin renewed his offer to withdraw but to no avail. Tanzania continued its military offensive and on February 23, 1980 announced the capture of Masaka, a Ugandan town. Ugandans welcomed the Tanzanian troops, joyous over the prospects of being freed from the brutal regime of Amin. The arbitrariness, ruthlessness, and cruelty of Idi Amin’s rule against his own countrymen, resulting in some 300,000 lives lost, had alienated Ugandans. [FN52] While Amin threatened to punish Ugandans for supporting the “enemy,” renewed mediation efforts by the OAU failed to produce the compromise necessary to end the hostilities. On March 11, Amin’s troops suffered a decisive defeat in Lukaya, and on April 11 a combined force of 4000 Tanzanian and 3000 Ugandan rebels took Radio Kampala and announced that the tyrant Idi Amin was no longer in power. [FN53]

The foregoing history of the events preceding Tanzania’s intervention surely justifies it as an act of self-defense taken in response to Uganda’s armed aggression against the territorial integrity of Tanzania in violation of Article 2(4) of the UN Charter. In the process, a combined force of Tanzanians and Ugandan rebels deposed Idi Amin, and Ugandans were liberated from his despotic rule. The United States supported the Tanzanian action from the outset, justifying it as an act of self-defense. [FN54] Although, the overthrow of Idi Amin raises the issue for some of being punitive in nature, and hence not justified under Article 51 of the UN Charter [FN55], the fact remains that Tanzanian territory was invaded by Idi Amin’s forces in violation of Article 2(4) and that Tanzania had the right to defend itself, notwithstanding whether its actions are a fortiori deemed proportionate or not. Thus, I conclude that Tanzania’s intervention was not primarily humanitarian, and as such does not constitute a precedent for unilateral humanitarian intervention.

Other Interventions

On October 25, 1983, a joint military force composed of 8000 US troops and 300 men from six Caribbean countries landed in Granada and after three days of fighting deposed the newly self-appointed Revolutionary Military Council. [FN56] Several legal theories, including the protection of United States nationals, have been advanced to justify this intervention. [FN57] Teson, however, attempts to analyze it as a possible case of humanitarian intervention on the grounds that it could be viewed as being aimed at rescuing Grenadians and others from actual or imminent threat of human rights deprivations. [FN 58] Resorting to a theory of humanitarian intervention in this instance, however, is a stretch and is not warranted when other plausible explanations exist. Also, in the absence of any compelling evidence of “widespread deprivations of internationally recognized human rights,” this intervention fails to meet the definition requirements of humanitarian intervention adopted here.

Lastly, the collective interventions in Somalia in 1992-1993, Haiti in 1994, and Bosnia in 1994, and the French intervention in Rwanda in 1994, were all sanctioned by the UN Security Council. [FN59] A discussion of the events that led to each one of these interventions is found in Teson [FN60] and is beyond the purpose and scope of this paper. It suffices here to underscore that these interventions were authorized by the Security Council under the powers granted to it by the UN Charter, Chapter VII, and as such do not constitute precedents for unilateral humanitarian intervention conducted without the express approval of the Security Council.

In summary, the foregoing analysis of state practices since 1945 do not support the existence of a clear cut or credible instance of unilateral humanitarian intervention undertaken by a state or group of states without the express authorization of the Security Council that could serve or constitute a precedent for future interventions where widespread deprivations of internationally recognized human rights do not reach genocidal proportions.

NATO’s Intervention in Kosovo, 1999

The history of the ethnic conflict in Kosovo, discussed above, and the charges contained in the indictment of Slobodan Milosevic and four of his deputies by the International Criminal Tribunal for the Former Yugoslavia on May 27, 1999 [FN61], make it amply clear that there were widespread deprivations of internationally recognized human rights by the forces of the Federal Republic of Yugoslavia (FRY) that preceded NATO’s armed intervention on March 24, 1999. It is also clear that NATO’s intervention was aimed primarily at protecting Kosovar Albanians, an ethnic minority in the target state of FRY, and was not aimed at the territorial integrity or political independence of FRY. In fact, even after the defeat of FRY and withdrawal of its forces from Kosovo, NATO has steadfastly recognized Kosovo as a part of FRY and there do not appear to be any signs thus far of an impending change in this policy. Thus, NATO’s intervention in Kosovo is, par excellence, a humanitarian intervention that easily meets the definition adopted here.

It is also noteworthy that NATO’s intervention distinguishes itself from the 1971 Indian and the 1979 Tanzanian interventions in at least three aspects. First, Nato’s intervention was a joint effort by a group of states belonging to a defense organization, in contrast to the Indian and Tanzanian interventions carried out by a neighbor of the target state. Secondly, India and Tanzania were directly affected by the actions of the regimes in the target state, whereas none of the NATO countries were directly affected significantly by the the actions of the FRY in Kosovo. Thirdly, in addition to humanitarian concerns there were other factors such as self-defense or helping a people exercise its right of self determination that characterized or motivated the Indian and Tanzanian interventions.

The atrocities committed by the FRY forces in Kosovo, prior to NATO’s intervention, however, did not reach genocidal proportions as they did in East Pakistan [FN62] and probably also in Uganda [FN63]. The charges brought against Slobodan Milosovec and his deputies by the International Criminal Tribunal of the Former Yugoslavia supports this conclusion. For example, this indictment charges: During their offensive, forces of the F.R.Y. and Serbia acting in concert have engaged in a well-planned and coordinated campaign of destruction of property owned by Kosovo Albanians civilians. Towns and villages have been shelled, homes, farms, and businesses burned, and personal property destroyed. As a result of these orchestrated actions towns, villages, and entire regions have been made inhabitable for Kosovo Albanians. Additionally, forces of the F.R.Y. and Serbia have harassed, humiliated, and degraded Kosovo Albanian civilians through physical and verbal abuse. The Kosovo Albanians have also been persistently subjected to insults, racial slurs, degrading acts based on ethnicity and religion, beatings and other forms of physical treatment. [FN64]

1. War with Milosevic, The Economist, April 3, 1999, 19-21

2. Id.

3. See David M. Kresock, “Ethnic Cleansing” in the Balkans: The Legal Foundations of Foreign Intervention, 27 Cornell Int’l L.J. 203 (1994).

4. See Id.

5. See Id.

6. See Id.

7. See Ted Baggett, Human Rights Abuses in Yugoslavia: To Bring an End to Political Oppression, the International Community should Assist in the Establishing an Independent Kosovo, 27 Ga. J. Int’l & Comp. L. 457 (1999).

8. See Id.

9. See FN3

10. See Id.

11. See Id.

12. See Id.

13. See Id.

14. See Id.

15. See Id.

16. See Id.

17. See FN7 & FN1.

18. See FN1.

19. See Id. & FN7.

20. See FN1.

21. See Id.

22. See FN7

23. See FN1

24. See Id.

25. See FN7.

26. See FN1.

27. Id.

28. Id.

29. Id.

30. Id.

31. Id.

32. See David Manasian, “Survey of Human-Rights Law”, The Economist, Dec. 5, 1998, at 4.

33. Fernando R. Teson, “Humanitarian Intervention: An Inquiry into Law and Morality”, Transnational Publishers, Inc., (1997), 1-338, at 178.

34. Stanley Hoffmann, “The Ethics and Politics of Humanitarian Intervention”, University of Notre Dame Press, (1996) 1-116, at 12.

35. Lori Fisler Damrosch, “Changing Conceptions of Intervention in International Law”, paper for a conference of the Am. Academy. of Arts and Sciences, Jan. 1993. See, also FN34.

36. See FN33, at 133.

37. Id.

38. Sean D. Murphy, “Humanitarian Intervention: United Nations in an Evolving World Order”, Vol. 21 Procedural Aspects of International Law Seies, University of Pennsylvania Press (1996) 1-419, at 10.

39. Id. at 11.

40. Id at 16.

41. See FN33, 179-266.

42. Id. at 200-201.

43. Id.

44. Id. at 202.

45. Id.

46. Id. at 203.

47. Id. at 179.

48. Id.

49. Id. at 179-180.

50. Id. at 180.

51. Id.

52. Id. at 184.

53. Id. Id. at 182.

54. Id. at 185.

55. Id.

56. Id. at 210.

57. Id. at 211.

58. Id.

59. See Id. 225-266.

60.Id.

61. The New York Times, May 28, 1999, at A12.

62. See FN33, at 202.

63. See Id. at 184.

This research was conducted during the Summer of 1999 when the author, a law student at the City University of New York Law School at Queens College, was an intern at the New York County Lawyers Association’s Internship Program in Public International Law and Human Rights. Valuable input and guidance by Tomas Ryan de Heredia, Esq., Prof. Mark R. Von Sternberg, Esq., and Robert Ian Goodman, Esq., are gratefully acknowledged.