71 / 536
57
CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE…
The Bundestag emphasized in Oct. 1998 that the decisions taken by NATO on Kosovo
must not be seen as a precedent leading to a general right of the Alliance to intervene
militarily out of area without a Security Council mandate or authorization.
24
The
legal experts stressed the effort to “minimize [the] precedential significance” of this
action.
25
Precedents as a rule are not the basic sources of international law. Nevertheless
they may play an important role as subsidiary ones. The US courts are bound by the
doctrine of precedents and the necessity to proceed according to cases decided at an
earlier date. The issue of
stare decisis
or precedents and customary international law
are often discussed in US practice. The American courts must also apply a statute as
against any rules of customary international law that do not accord with it.
26
The
NATO members justified the threat and use of force against the FRY on the basis of
UNSC res. 1199 which stipulated that the UNSC was “alarmed at the impending
humanitarian catastrophe…”
27
In Cassese’s view there now exists a rule “generally accepted” in international
law that no sovereign state has the “right to terrorize its citizens”. This is true, but it
does not bring a response on the legality of NATO’s attack and its resort to armed
force. In favour of the NATO armed action, Cassese added that only a few states
“have endeavoured to translate events in Kosovo and the reaction of NATO into legal
terms” or that “the overwhelming majority of states did not condemn the NATO
intervention as illegal.”
28
This statement may, however, mark a certain helplessness
and resignation of international law norms to regulate the use of armed force.
3. Armed Interventions – Arguments for justification?
The notion and legal content of armed intervention are among the most contro-
versial terms in international law.
29
Intervention generally represents an act of
“dictatorial interference” by one or several states within the internal or external
matters of another state with the aim of influencing the behavior of this state. The
“law” or “right” of intervention was not embodied in the UN Charter, not even in
the case of gross violations of humanitarian law or human rights law. The arguments
in favour of the legality of humanitarian intervention were rejected by the ICJ in
the judgement of the Nicaragua case and implicitly in the Advisory opinion on the
legality of nuclear weapons.
30
24
See SC 3889 Meeting, 26 March 1999, S/PV. 89 p.
25
SIMMA, B. supra note 2, p. 1.
26
See SHAW, M.
International Law.
Cambridge: Cambridge University Press, 2003, pp. 130, 133, 135
and 145.
27
See UNSC res. 1160 (1999).
28
CASSESE, A. A Follow-Up: Forcible Humanitarian Countermeasures on Opinio Necessitatis.
EJIL
.
Vol. 10, 1999, pp. 792-795.
29
MRÁZEK, J. Armed Interventions in Contemporary International Law
. CYPP
, Vol. 3, 2012, p. 63.
30
The ICJ Report 1986, Case Concerning Military and Paramilitary Activities in and against Nicaragua,
para 268; available at:
http://www.icj-cij.org.