Kosovo and the Law of “Humanitarian Intervention”

Abstract

I."Kosovo" has compelled us to revisit the troubled law of "humanitarian intervention."The terrible facts in and relating to Kosovo in 1998-1999 are known and little disputed.The need to halt horrendous crimes against humanity, massive expulsions and war crimes, was widely recognized.NATO intervention by military force was widely welcomed, but it was also sharply criticized.And it inspired much searching of soul by students of international law.Now that the fait of the NATO bombing is accompli, and has been assimilated into a political resolution blessed by the Security Council, the legal issues of humanitarian intervention can be addressed in comparative tranquility, and the legal lessons pursued with less urgency, and with greater wisdom.Was military intervention by NATO justified, lawful, under the UN Charter and international law? 1 Does Kosovo suggest the need for reaffirmation, or clarification, or modification, of the law as to humanitarian intervention?What should the law be, and can the law be construed or modified to be what it ought to be? II.Before the Second World War, international law prohibited "intervention" by any state within the territory of another without that state's consent: international law prohibited unilateral intervention in internal wars; international law prohibited intervention even for agreed, urgent humanitarian purposes.In 1945 the UN Charter reaffirmed those prohibitions as part of a general prohibition on the use of force.Article 2(4) of the Charter prohibits "the threat or use of force against die territorial integrity or political independence of any state" (subject only to the right of self-defense, Article 51).Article 2(4), it has been accepted, prohibits intervention by a state in internal war in another state by military support for either side.It has been commonly accepted, too, that the prohibition on intervention applies regardless of die political (democratic or lessdian-democratic) ideology or the moral virtue of the government of die target state or of either side in the internal war.War apart, there was general agreement, too, that the Charter prohibits intervention by any state for humanitarian purposes. III.In my view, unilateral intervention, even for what the intervening state deems to be important humanitarian ends, is and should remain unlawful.But the principles of law, and the interpretations of the Charter, that prohibit unilateral humanitarian intervention do not reflect a conclusion that the "sovereignty" of the target state stands higher in the scale of values of contemporary international society than the human rights of its inhabitants to be 1 1 do not address here whether the execution of the military intervention was subject to and may have violated any of the laws of war.

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