“NATO launched an air campaign, Operation Allied Force, in March 1999 to halt the humanitarian

catastrophe that was then unfolding in Kosovo. The decision to intervene followed more than a year
of fighting within the province and the failure of international efforts to resolve the conflict by
diplomatic means”. (Source: https://www.nato.int/)

At the time, NATO’s bombing campaign against the Socialist Federal Republic of Yugoslavia
instigated a major debate about the legitimacy of humanitarian intervention – in this instance, by
an international organization (the North Atlantic Treaty Organization (NATO)).

In an essay of max. 1000 words, discuss the following points by referring to at least two academic
(secondary) sources (academic articles, academic blogs, books or edited books):

- Explain the prohibition on the use of force.

- Elaborate on possible argumentation that could be given both in favour of and against the
bombing operation carried out by NATO.
- Provide your views on whether Humanitarian Intervention or the Responsibility to Protect
should require the authorisation of the Security Council.

Model answer: the use of force in international law is governed by the rules of customary international
law and by the UN Charter. The UN Charter prohibits the use of force in Article 2(4), but provides for
two exceptions to this prohibition, namely the use of force as a measure of self-defense (article 51 UN
Charter) and the use of force authorized by the UN Security Council (article 42 UN Charter).
Occasionally, states have claimed that their use of force had been justified, in addition to the two
exceptions mentioned above, on the basis of humanitarian considerations. According to this
argument, the aim of preventing gross human rights violations justifies the (unauthorized) use of force
by states. The NATO bombing campaign against the Socialist Federal Republic of Yugoslavia (SFRY), as
it was then called, and of which Kosovo were a part of at that time), is an example of such a justification
of the unauthorized use of force.

Certain elements are generally acknowledged to be constitutive of humanitarian intervention:

1. A humanitarian intervention consists of activities directed at or carried out within another

state (the cross-border aspect);
2. An important element is the 'non-consensual aspect': intervention activities don’t need to
enjoy the consent of the 'target-state'. Humanitarian intervention is intervention forced upon
a sovereign state. It is either arbitrarily undertaken by one state or collectively by a group of
states. It has to concern the protection of the population of the 'target-state'.
 3. The argument runs that the use of force by states is justified by the –sole- aim of preventing
gross human rights violations (humanitarian consideration). The Rwandan genocide in 1994
provides an example of such gross human rights violations.
4. Further, there has to be no other alternative to the measures adopted (the ultimum
remedium aspect);
5. Lastly, the measures need to be limited in time and scope (the proportionality aspect).

In favour:

With respect to the SFRY bombing campaign, NATO [and states in support of NATO intervention]
argued: (1) Although NATO’s actions were not authorized by the UN Security Council, its military
intervention was justified as a response to the gross human rights violations that were taking place in
Kosovo. (2) Some argue the NATO intervention was implicitly authorised by resolutions of the Security
Council after it occurred (as well as by the fact that the adoption of a resolution condemning the
intervention failed) (3) There had been Security Council resolutions prior to the intervention pointing
out that the situation in Kosovo was a threat to international peace and security. (4) Moreover, the
NATO intervention was a response to SFRY's non-compliance with those previously adopted UN
Security Council Resolutions. (5) Some states also argued that the Security Council was primarily but
not exclusively responsible to deal with threats to international peace and security.

Against:

States who were against the NATO intervention claimed: (1) It was a clear violation of the UN Charter
-- Article 2(4) in particular, which prohibits the use of force. (2) NATO's actions undermined the role
of the UN Security Council in maintaining international peace and security, and that the intervention
set a dangerous precedent for the future. (3) A strict interpretation of the system on the use of force
prohibits humanitarian interventions. Indeed, the International Court of Justice, in the 1949 Corfu
Channel case, rejected the existence of a right of humanitarian intervention. Some authors argue that
the Court had confirmed its rejection of the doctrine of humanitarian intervention in its 1986
Nicaragua case. (4) In 1970, the UN General Assembly adopted the Friendly Relations Declaration in
which the right to intervene on humanitarian grounds was not recognized.

Note: other arguments might be possible.

Reference to: R2P (although R2P should not be equated with/confused with humanitarian
intervention). In September 2000, the International Commission on Intervention and State
Sovereignty was established. The commission rejected the term 'humanitarian intervention' since it
argued that no use of military force can be 'humanitarian'. Instead, the commission proposed a new
concept: the Responsibility to Protect (R2P). R2P is considered to be a more comprehensive notion
than humanitarian intervention in the sense that 'foreign intervention' is only one of the various
dimensions of the doctrine. The R2P doctrine primarily addresses the obligations of the state in whose
territory gross human rights violations are/had been occurring. The doctrine only subsequently deals
with the conditions under which foreign intervention may be undertaken.

Discussion on the authorisation of Security Council:

Students are asked to provide their views on these issues, so their argumentation may go into different
directions. However, to substantiate their answers they should refer to the state of the law (voting
rules in the Security Council) and developments in this area that we discussed in class.

Arguments put forward may refer to:

• The veto power of the permanent members of the Security Council: Each permanent
member can block any humanitarian action or action to meet the international community’s
Responsibility to Protect (example of Syria). Also, interventions would be determined by a
handful of states, rather than the international community as a whole (‘power imbalance’).

• Risk of abuse of HI and R2P: If no authorisation by the Security Council is required, there is
arguably a greater a risk of states abusing the doctrines HI and R2P to achieve political goals,
such as regime change in the state of intervention. However, such abuse may also occur when
the intervention is authorised by the Security Council (as some states argue was the case in
Libya).

• R2P also foresees actions other than military intervention: Arguably a Security Council
authorisation as the threshold for the legality of such non-military actions is very high.

• Value of preserving the UN legal framework on the use of force: The UN framework provides
a legal regime on the use of force that was established with the objective to bring major
military powers together in order to avoid the development of new major conflicts and wars,
such as World Wars 1 and 2. One could argue that, despite its shortcomings, it is preferable
for the doctrines of HR and R2P to remain compliant with this legal regime and preserve the
legal order set up by this regime, rather than setting a precedent of the use of force outside
of the UN regime. The latter may arguably risk causing greater uncertainty and arbitrariness.