74 / 536
60
JOSEF MRÁZEK
CYIL 7 ȍ2016Ȏ
The NATO position was defended by former Secretary- General Javier Solana on
October 9, 1998. His main argument was that the FRY had not complied, despite
UNSC resolutions 1160 and , with the demands of the “international community”.
He also mentioned the Report of the UN Secretary- General, warning
inter alia
of
the danger of “humanitarian disaster in Kosovo”, as a “serious threat to peace and
security”.
37
States participating in the attack have justified their action mainly by the
argument that it was necessary from the overwhelming need to stop the atrocities of
the Serbs in Kosovo. President Clinton declared that NATO’s action had “helped
vindicate the principles and purposes of the U.N. Charter.”
38
The NATO countries
regarded their action as justified because it was not taken by one state but by
a group of states acting unanimously within the framework of an intergovernmental
organization.
According to B. Simma, former judge of the IJC, already in October 1998
NATO’s threat against the FRY breached the UN Charter, despite NATO’s effort
to rely on the doctrines of necessity and humanitarian intervention and to conform
to the sense and logic of relevant UNSC resolutions. He stressed subordination of
NATO’s activities to the principles of the UN Charter. Nevertheless, apparently in
an endeavour to escape from legal ties on the use of armed force, confronted by
today’s political reality, he admitted: “hard cases involving terrible dilemmas in which
imperative political and moral considerations leave no choice but to act outside the
law. His assertion on the “breach” of the UN Charter in this case seems to somewhat
contradict another statement of his that a “red line separates NATO’s action from
international legality.”
39
In this connection he warned that “should such an approach
become a regular part of the strategic programme for the future, it would undermine
the universal system of collective system.”
40
The NATO armed actions, not having
been authorized by the UNSC, are not in conformity with the UN Charter. The
question which arises at this point is the well known controversy about “implicit”
or
“ex post facto”
authorization by the UNSC. In the view of Simma, the positive
reception by the UNSC of the results of NATO threats of armed force cannot be read
as an authorization of such force in Kosovo granted implicitly or
ex post
. He considers
the opposite view as “untenable”. Nevertheless he very cautiously mentioned that the
UNSC, as a “political organ”, in many instances will have accepted or built upon
facts or situations based on or involving “illegalities”.
41
There are lawyers who do not have doubts that the NATO action in Kosovo
“can be seen as legitimate”, acknowledging at the same time “that actual lawfulness”
37
SOLANA, J.
Letter from Secretary – General
of 9. October 1998/ cited in B. Simma, supra note 2, p. 7.
38
The statement by President Clinton of 21 Sept. 1999, White House, press release, p. 4, also the statement
on 22 Sept. 1999 in the GA by the Italian Foreign Minister.
39
See supra note 2, p. 1.
40
Ibid
., p. 1.
41
Ibid
., p. 11.