The first lessons of Kosovo
Olivier Corten and Mario Bettati. Mario Bettati, a leading advocate of “the right to intervene”, is professor of International Public Law at the University of Paris II.
In Blace (Macedonia), refugees from Kosovo await food distribution
from the Red Cross.
Olivier Corten and Mario
Bettati agree on some points but differ over the legitimacy of NATO intervention
The member states of
the North Atlantic Treaty Organization (NATO) decided on March 24, 1999 to start
the massive bombing of Yugoslavia on the grounds that they were defending Kosovar
populations of Albanian origin in the name of the universal values of the international
community. Olivier Corten believes that classic international law, which would have
required a prior resolution by the UN Security Council, was ignored on the grounds
that it was outmoded: a double veto by Russia and China would have been a formal
obstacle that was inappropriate in such an emergency.
Olivier
Corten
Making Kosovo a milestone
in the growth of a right of humanitarian intervention may turn out to be very embarrassing
for its supporters. It is virtually impossible to say that, at the end of the day,
the intervention will have improved the humanitarian situation. The deportations
and atrocities the Kosovars of Albanian origin have been subjected to are not a direct
result of intervention, but that is irrelevant because the consequences of intervention
were not only foreseeable but were predicted by many foreign observers.
And this is the dilemma. Either the Western planners have good intentions but have
carried them out incompetently, thereby losing all credibility as guarantors of respect
for the law, or else they are competent, but their motives are perhaps less humanitarian
than they publicly proclaim. The second of these possibilities clearly seems to be
more likely. What’s more, NATO’s passivity in equally serious situations elsewhere
(Angola, Afghanistan, Sierra Leone, Rwanda, Kurdistan) makes it even harder to defend
the thesis of “humanitarian” intervention.
This may be why many states refused to support it. The Islamic world has widely condemned
the deportations and atrocities but has not taken a clear stand on the legitimacy
of military intervention. The Rio Group, which includes nearly all the Latin American
countries, has condemned the deportations, atrocities and military intervention,
and has called for the United Nations Charter to be respected. Most member countries
of the Commonwealth of Independent States (CIS, which embraces most of the former
Soviet republics) adopted the same position.
India’s representative on the United Nations Security Council said on March 24 that
“no country, group of countries or regional arrangement can arrogate to itself the
right to take arbitrary and unilateral military action against others. . . . we have
been told that the attacks are meant to prevent violations of human rights. Even
if that were to be so, it does not justify unprovoked military aggression. . . .
What is disturbing is that both international law and the authority of the Security
Council are being flouted by countries that claim to be champions of the rule of
law. . . . The Nonaligned Movement [has] repeatedly said that the United Nations
cannot be forced to abdicate its role in peacekeeping.”
Opponents of the intervention also include countries as diverse as Namibia, South
Africa, Libya, Gabon and Iraq. So to claim that NATO’s action reflects the will of
the “international community” as a whole has ideological overtones. In fact, many
countries fear that this kind of precedent will legitimize a new role for NATO as
a “world policeman” and open the way to selective actions to serve the interests
and meet the concerns of powerful countries. The attitude of NATO member states,
which say that the International Court of Justice at The Hague is not competent to
hear the complaint lodged with it by Yugoslavia, only confirms this fear.
In these circumstances, advocating the right of intervention risks being associated
with a return to the gunboat diplomacy which the authors of the United Nations Charter,
especially the Latin Americans, set out to eliminate.
Mario Bettati
The intervention in Kosovo both is and is not a question of the right of humanitarian
intervention. To begin with, nobody disputes that the Serbian regime is guilty of
serious human rights violations on its own soil, in Kosovo. This is grounds for legal
intervention, and the recent indictment of five of its leaders by the International
Criminal Tribunal for the Former Yugoslavia resoundingly confirms that.
The nature of the intervention has also been tacitly accepted by the international
community. The Security Council refused on March 26, by 12 votes out of 15, to condemn
the air attacks. And on April 16, the UN Human Rights Commission, by 44 votes out
of 51, condemned “ethnic cleansing”, while the opponents of this condemnation had
stressed that it would be tantamount to justification of the bombing. These two votes
provided an implicit legal basis for the bombing. Finally, the intervention was not
unilateral, as in a classic colonial operation, but multilateral.
However the purpose of exercising the right of humanitarian intervention is to help
the victims. First by staying the hand of the executioner. But not only have the
victims not been protected but the executioner has grown tougher: the announced aim
of the intervention and the result achieved by it are poles apart. Second, by providing
free access to the victims so they can be helped. However, no humanitarian organization
has been able to set foot in either Serbia or Kosovo. Third, free access is still
without the necessary support of an accompanying armed force, in this case, intervention
on the ground.
The Kosovo precedent has advanced the cause of the right to intervene because of
the indictment, for the first time, of a sitting head of state. It has also made
people aware that the right to intervene on humanitarian grounds is necessary, but
it has shown that in the field, the present half-measures are giving a flawed, even
false view of its application. In short, the right has become more popular, but the
exercise of it to help the victims has run into political obstacles.
