Leaders and Scholars Clash Over Legality

The Clinton administration said Thursday that the NATO campaign against Yugoslavia is justified under international law, but scholars say the alliance has moved into uncharted waters--where it will either establish new rules for military intervention to prevent human rights abuses or be regarded by history as a well-intentioned outlaw.

In defending the NATO action, the administration Thursday cited Yugoslav President Slobodan Milosevic’s well-documented record of human rights violations and three resolutions passed by the U.N. Security Council last year.

The U.N. Charter is deceptively clear: Nations are authorized to use armed force against other nations only to defend themselves and their allies from actual attack or when military action is authorized by the U.N. Security Council.

The charter--adopted just months after the carnage of World War II came to an end--prohibits the use of force by one sovereign country against another in almost all other cases.

Yet some experts say an emerging body of international law permits armed intervention for humanitarian purposes even without specific Security Council approval.

Legal scholars disagree sharply on whether the NATO bombing meets the conditions for humanitarian intervention, but they agree that if this air operation passes muster, it will establish a broad precedent that could legalize almost any action with asserted humanitarian objectives.

“There is an evolving standard of humanitarian intervention which was first clearly demonstrated in the spring of 1991, when we and the British and the Dutch went into northern Iraq,” said Ivo Daalder, an expert on the Balkans at the Brookings Institution in Washington. “There is a principle that how governments treat their citizens is a factor in determining whether the use of force is justified against them.”

However, other legal scholars said humanitarian intervention is not yet a recognized provision of international law.

Differences in Global Law Cited

Although President Clinton emphasized that he considers prevention of human rights abuses in Kosovo the most compelling reason for NATO’s action, the administration also cited both of the traditional criteria specified by the U.N. Charter: The action is an exercise of collective self-defense, and it was specifically authorized by the Security Council.

Some legal scholars say the claims of acting under the charter are dubious.

Of course, international law differs substantially from federal, state and municipal statutes in the United States. There is no international legislature to make laws and no international police force to enforce them.

International law consists of provisions of the U.N. Charter, treaties and--perhaps most significant--activities and practices that have won broad acceptance over the years.

The administration’s claim that NATO is exercising its right of collective self-defense is based on the assertion that chaos in Kosovo could spread to other Balkan countries, including NATO members Greece and Turkey.

“Anticipatory self-defense is an argument that is anchored in the U.N. Charter,” said Anthony Arend, a professor of government at Georgetown University and co-author of “International Law and the Use of Force,” a 1993 book. “But the charter says an armed attack has to have already occurred.”

The administration’s claim of Security Council authorization is based on three resolutions passed last year demanding an end to the violence in Kosovo and endorsing broad autonomy for the ethnic Albanians who make up 90% of the population of the Serbian province.

All three resolutions were adopted under the charter’s Chapter 7, the section that allows military action to prevent situations that endanger world peace.

“Acting under Chapter 7, the Security Council adopted three resolutions--1160, 1199 and 1203--imposing mandatory obligations on [Yugoslavia] . . . and these obligations [Yugoslavia] has flagrantly ignored,” Secretary of State Madeleine Albright said Thursday. “So NATO actions are being taken within this framework.”

Arend said the problem with that argument is that, although the resolutions require the Serbs to end oppression in Kosovo, the measures “don’t explicitly authorize the use of force. The Security Council has never had any difficulty authorizing the use of force if that’s what it wants to do.”

Russian, Chinese Vetoes Expected

U.S. diplomats did not seek specific authorization for military action because they knew that such language would draw vetoes from Russia and China, permanent members of the Security Council. For the same reason, Washington refused to take the issue back to the council before beginning the air campaign.

Milosevic maintains that international intervention is unwarranted because Kosovo is part of Serbia, the dominant Yugoslav republic, so the conflict is an internal one. Russia advanced that argument Wednesday during an emergency meeting of the Security Council.

Most legal experts in the United States dismissed that claim in light of Milosevic’s record of oppression.

“The Serbs are clearly wrong when they say this is an internal affair,” said Christoph H. Schreuer, professor of international law at the School of Advanced International Studies of Johns Hopkins University. “Human rights are involved, and human rights are not internal.

“However, this does not necessarily lead to the conclusion that any action to enforce these rights can be done through armed force,” Schreuer said. “Under the U.N. Charter, enforcement action can only be taken by the Security Council. Unfortunately, that authorization is missing.”

Paul Williams, on the law school faculty of American University in Washington, insisted that Milosevic’s government cannot even claim to be a sovereign nation because the United Nations has not recognized it as the successor country to the six-republic Yugoslav Federation that unraveled in 1991.