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JAN LHOTSKÝ
CYIL 6 ȍ2015Ȏ
6.3 Yugoslavia 1999
Within the conflict in the former Yugoslavia in the 1990s, the ethnic tension
between Serbs and Kosovar Albanians grew stronger. As Kosovo was an integral
part of the former Yugoslavia ruled by Slobodan Milošević, the government started
to perform a policy of persecution of the Albanian population in Kosovo. Several
thousands were killed and hundreds of thousands displaced, either internally or into
neighbouring countries. On the other hand, gross human rights violations were also
reported on the other side.
As the humanitarian situation was worsening and the developments seemed to
threaten regional security, under the strong support of the USA led by Bill Clinton
the NATO forces decided to take action. None of the NATO or UN Member States
had been attacked, so any reasoning based on self-defence was impossible. Moreover,
no Security Council approval had been obtained. In spite of that, in March 1999,
NATO forces initiated a military intervention against Yugoslavia, based solely on the
argument of humanitarian intervention.
The campaign lasted for two and half months, until Slobodan Milošević agreed
to a peace agreement that included withdrawal from Kosovo and its international
supervision. A question arises – would the commanders in chief who approved the
NATO attack against Yugoslavia be liable under the new definition of the crime of
aggression?
As no argument can be developed in favour of self-defence or Security Council
approval, it can be argued against aggression only on the basis of a humanitarian
intervention. It may be suggested that there can be situations of such an extent
of gross violation of human rights where a military intervention directly aimed at
putting an end to it should not be regarded as illegal. Nevertheless, the question is
whether this was the case.
In order to find the answer, two thorough analyses would have to be pursued
by the Court. First, how extensive was the threat posed by the conduct of the
government to the civilian population. In other words, the Court would have to
consider the intensity of the hostilities. For this purpose, what happened before the
intervention is critical, not within the subsequent war. Second, whether the conduct
of the intervention was directly aimed at putting an end to the hostilities. For the
assessment of the second part, considerations of civilian casualties caused by the
intervening forces, as well as ceasing the operation after achieving the goals should
be taken into consideration.
Although the question of legality still remains, with regard to the developments
of the conflict it is likely that these two factors would be assessed in favour of the
intervening party. Therefore, the intervention would probably not amount to a
‘manifest violation’ of a UN Charter. This is a typical example of a grey area.