Running head: REGIONAL INTERVENTION Cherini 1

Regional Humanitarian Intervention: Lessons from Kosovo

Fernanda Cherini

York University

Professor Atkinson

POLS 3240
REGIONAL INTERVENTION Cherini 2

Introduction

NATO intervened in the Kosovo War in 1999 for humanitarian reasons without

authorization by the Security Council nor consent from the former Yugoslavia. Some states and

scholars feared that it could establish a dangerous precedent for interventions which would

undermine sovereignty; others hoped it would stimulate positive change to how intervention was

addressed. In 2001, the International Commission on Intervention and State Sovereignty (ICISS)

was established, proposing a framework for humanitarian intervention and the notion of

responsibility to protect. However, the recommendations have hardly altered states’ approach to

intervention and international community continues reluctant, with insecurity and doubtfulness

still predominating. Neither ICISS nor NATO have set a framework or precedent in humanitarian

intervention (Hehir, 2009). UN’s Security Council, considered the one legitimate body to authorize

military interventions, has great difficulty achieving a consensus or often does so when it is too

late (Parekh, 1997, p. 7).

Considering these issues and the persisting need to intervene for humanitarian reasons,

intervention must be rethought and discussed. In Kosovo, after it was clear that diplomatic

measures to solve the crisis would not work (Roberts, 1999, p. 104), NATO decided to invade

without seeking the Council’s approval. Despite many criticism and debate, the intervention was

still considered legitimate (although unlawful) by the Independent International Commission on

Kosovo (IICK). Another measure of NATO’s intervention’s success comes from the people it

sought to rescue. There is a general agreement that, although NATO’s bombings resulted in

civilian deaths, the intervention was still necessary and welcomed (Roberts, 1999, p. 104). Thus,

if intervention in the terms currently existing is not possible, we must look at – generally

considered - successful cases and analyze what are the possibilities for future interventions. This

essay will analyze whether the main aspects of NATO’s intervention could offer an alternative to
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the current approach to humanitarian intervention. It will first discuss the legal issues it presented,

and the concerns states had about Kosovo’s intervention. Then, it will assess the positive and

negative aspects of regional intervention, and whether states have demonstrated inclination to a

precedent in these terms.

Legality and Precedents

Law is the primary barrier to interventions and must be considered when establishing a

precedent. A major discussion about NATO’s intervention was about whether it was unlawful or

if there were enough legal grounds to support it (Hehir, 2009). In the strict sense of the law,

NATO’s intervention was illegal, but should this be the case? The UN Charter is binding to all

UN members; therefore, it can be considered as the top hierarchy of international law. Chapter I,

Article 2, does not allow countries to intervene in the domestic affairs of other countries, except

in the cases mentioned by Article 39, which assigns the Security Council the ability to authorize

intervention when it identifies threats to peace. Countries quickly pointed that NATO’s actions

were illegal because there was no authorization by the Council and, thus, should not become a

precedent (Hehir, 2009, p. 249). Nonetheless, a dilemma arises from using the strict sense of the

law. Was it better to save thousands of people and sacrifice the Charter's rule, or should we have

sacrificed those lives to maintain the supremacy of the law? (Franck, 2006, p. 143). Franck (2006)

points that “any straining to save law's determinacy by applying it strictly, even when to do so

leads to absurd or horrific consequences, is futile and of no benefit either to the law or morality”

(p. 144). Thus, when applying the law, we must carefully assess to which extent it is reasonable to

apply it in its most rigorous sense, as it could work against the law itself (Brock, 2006, p. 288).
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International law is fluid (Hehir, 2009, p. 246) and can be interpreted in a way that concurs

with what the international community perceives as necessary. If the IICK considered NATO’s

actions “illegal, but legitimate”, and many other states agreed that action had to be taken (Chandler,

2004, p. 75), the law can adapt to reflect these views (Franck, 2006, p. 145). “The International

Court of Justice, too, has concluded that an illegal act by a state may be excusable if it was

performed in circumstances where its nonperformance could reasonably have been expected to

result in the occurrence of some greater wrong” (Franck, 2006, p. 146). At first, one could argue

that this is precisely what states feared would happen after Kosovo; but adapting the law and

disregarding it are very different actions. The Security Council itself has interpreted the Charter in

its lighter sense (Franck, 2006, p. 152) without undermining it. Usually, law does need to be strict,

but since intervention in the precise terms of the law is highly improbable, it has become a barrier

to intervention instead of a regulator. That might be precisely what many states desire, but this

paper posits that humanitarian intervention is necessary, both to uphold human rights and to

maintain international security. Therefore, alternatives to humanitarian intervention must be

sought.

States’ concerns must still be considered when proposing an alternative to the current

approach to humanitarian intervention, which will be explored in the next section. This essay does

not presuppose that the concerns of states can be appeased simply with more specific laws (Franck,

2006, p. 149), as there is no guarantee they would be followed. However, we cannot forsake

intervention simply because it presents complex challenges. Since states would not accept a

humanitarian approach being codified, this paper proposes a precedent based on an interpretation

of Kosovo’s case. NATO’s intervention had a set of characteristics that, when interpreted in a

certain manner, could ease the main concerns states have about intervention.
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The Security Council and Unilateralism

The main fears regarding NATO’s intervention emerged because the legal instrument, the

Security Council, was not used. Avoiding a recognized body that represents the international

community increased concerns about unilateralism (Henkin, 1999, p. 826). Humanitarian

intervention alone is a problem for countries because it threatens their sovereignty (Chandler, 2006,

p. 60). Unilateral approach is a far greater threat to sovereignty because countries define for

themselves what are the thresholds for intervention, which can lead to “too often intervention for

insufficient humanitarian reasons” (Weiss, 2004, p. 149). After Kosovo, the Security Council and

the international community showed themselves very wary about intervening without consent

(Hehir, 2009, p. 255). For this reason, despite ICISS attempts, “‘sovereignty’ of the target state

stands higher than the human rights of its inhabitants to be protected from genocide and massive

crimes against humanity” (Henkin, 1999, p. 824). There is also a suspicion of humanitarian

intervention being a disguise for modern imperialism, especially from countries which had their

borders breached during colonization and imperialism (Weiss, 2004, p. 142). These countries also

feel left out from the decision making of intervention, including in the ICISS (MacFarlane,

Thielking, & Weiss, 2004, p. 983), increasing their uneasiness. US’s Iraq invasion without

approval of the Security Council and with a justification in humanitarian terms, renewed a

perception of the necessity of non-intervention as the norm in international society (MacFarlane

et al., 2004, p. 984). Nonetheless, there were reasons why the Security Council was avoided by

NATO in Kosovo, and placing them in a regional context might help lessen these fears about

setting a “Kosovo-like” precedent.

The Security Council was avoided because of the high possibility of a resolution to

intervene in Kosovo not being approved. This would have happened not because “legal conditions”

for intervention were not present, but because of political disagreements in the Security Council
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(Roberts, 1999). Kosovo’s case was in accordance to Article 41 of the UN Charter and could be

authorized by the Council, but Russia and China would probably have vetoed a resolution for

intervention (Roberts, 1999, p. 104). NATO assumed that an express rejection would make future

intervention very difficult to legitimize (Henkin, 1999, p. 825), and decided to act without

authorization. Again, NATO’s action was considered legitimate and necessary, but it would likely

not have been approved by the one body with the power to do so. Therefore, Kosovo, as well as

many other cases, showed that the Security Council, despite having the legal capacity to authorize

interventions, fails in the capacity to execute it (Henkin, 1999, p. 827) and reflect the general will

of the international society. Unless there is a reform, this instrument is currently unavailable, and

we must seek alternatives. However, reform is even less plausible than the prospects for

humanitarian intervention outside of the Council. In fact, Weiss (2004) consider that reform is an

illusion, and more members with veto power would only make consensus for intervention even

harder (p. 146). This essay is not proposing a retreat from the current intervention norms, the ideal

route would certainly be through the Security Council. Nonetheless, if the one legal instrument

cannot be used, but action is still necessary to stop humanitarian crises, it forces us to seriously

consider whether NATO’s approach could be a solution to this issue.

NATO’s intervention was often considered unilateral, despite it having more members than

the Security Council and reflecting better the interests of the region. Should it really be regarded

as unilateral and provoke such anxiety in states? The United Kingdom affirmed that “if action

through the Security Council is not possible, military intervention by NATO is lawful on grounds

of overwhelming humanitarian necessity” (Roberts, 1999, p. 106). When we interpret it under a

regional approach, as a decision to intervene made by the region, NATO’s intervention becomes

more acceptable in the terms stated by the UK, as an alternative for the Council. The Security

Council would not lose its role, nor would its importance be undermined; a regional approach
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would exist in addition to it. The Council should maintain its jurying capacity to decide about

humanitarian intervention on an ad hoc basis, but it would also become post hoc. In this case, as

the Council has the ability to “condemn forthrightly the flagrant violations [of the Charter]”

(Franck, 2006, p. 151), it would assess the legitimacy of interventions done by the regional bodies.

This scenario is not implausible, as the Council has done so in many occasions, including in

Kosovo (Roberts, 1999, p. 105). It also gave “post hoc approval to the use of force by the West

African Community in the extreme circumstances of the Liberian and Sierra Leonean civil wars”

(Franck, 1006, p. 151). Thus, there is already a start for a precedent on post hoc approval for

regional intervention, which could increasingly become more acceptable and executed. There are

certainly problems with a regional approach, which will be discussed in the following section, but

it is attainable nonetheless.

Assessing Regional Intervention

If this regional precedent were to become a framework, strict guideless and criteria could be

drafted. However, as it was mentioned, a doctrine or framework is not likely to be truly accepted

by states. Still, regional intervention should follow criteria that have been internationally “accepted”

in practices. This essay will assess what guidelines can be taken from NATO’s practice. In Kosovo,

intervention was done by a body composed of most of the countries in the region, acting in a

consensus and in its own region (Henkin, 1999), while crimes against humanity were being

committed. There was also a strong possibility of instability being spread in the region, and

inaction would lead to greater dangers than action (Roberts, 1999, p. 109). If there is a regional

body recognized as legitimate by most states in a region, regional intervention could be a solution

to unilateralism. It also answers to fears of Western imperialism as the countries of the region
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would be the ones making the decision to intervene. States are more likely - if not only - to

intervene when it is in their interests to do so (Gowan, 1999, p. 102), which is usually when there

is a perceived threat to their security. For the intervention to be humanitarian as well, it must

include the intention to stop crimes against humanity. This has led to problems of selectivity, which

have constantly been pointed by Africa (Ayoob, 2004, p. 106). If regions also have the power to

decide when to intervene, the problem of selectivity would be mostly solved, as it is usually in the

interest of the regions to re-establish peace and security.

Despite the theory being conceivable, is a precedent in the terms of NATO's intervention a

possibility? There is indication that some of these practices have been happening sparsely, but they

have not been interpreted as an alternative to intervention by the international community. In

Africa, there has been a consensus that “subregional organizations have the moral and political

authority, if not the legal authority to intervene militarily” (Ayoob, 2004, p. 107). In fact, the

African Union, as opposed to the previous Organisation of African Unity, includes the possibility

for intervention by the Union “in respect of grave circumstances, namely war crimes, genocide

and crimes against humanity” (Franck, 2004, p. 154). It also affirms that the decision to intervene

should happen “by consensus or, failing which, by a two-thirds majority of the Member States of

the Union” (Franck, 2004, p. 154). The Middle East has also shown its discontent towards the

Security Council's inability to intervene in Palestine (Ayoob, 2004, p. 111). This issue could incite

a shift towards regional decision making. These are just a few examples that could help in setting

a precedent in a regional approach, but there are still issues that need to be analyzed.

It was acknowledged that there are problems with a regional approach and some critiques

should be pointed out. The first issue is that this essay has been referring to regions as if they are

a unit. Regions are not homogeneous, there is much conflict and differences that would make the

decision process difficult. Nonetheless, there are increasing attempts to form regional
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organizations and discuss matters of security. Mercosur in South America, the African Union, the

Arab League, ASEAN in South East Asia are examples of regional organizations that have been

increasingly discussing security issues (Ayoob, 2004). Another major problem is that some of

these regions have often positioned themselves against any violation of sovereignty, mainly in

Latin America and Asia. Part of their concerns is due to imperialistic countries, which regional

decision making could appease. Also, military intervention is not the only approach, Global South

countries have showed their preference economic intervention (Chandler, 2004, p. 66), which

would be more effective through a regional coordination. Funding interventions, especially

military, can be an issue for most regions as much of the resource is concentrated within NATO.

A possible solution would be that once a region decides to intervene, other countries could aid in

the terms established by the region. It is important to note that a regional approach is not ideal, the

preferred option would be if the Security Council could objectively decide when to intervene.

Nonetheless, at least granting the judging capacity for regional organizations as well would take

away one barrier and could allow for further improvements.

Conclusion

Despite uneasiness by states, humanitarian intervention is still considered by the general

international community as important either for moral or security reasons. Nevertheless, there are

many barriers to intervention that render it nearly impossible under the current international

approach. This is because the law is applied in its strict sense because states fear that otherwise

intervention would occur too often in a unilateral manner, which would create a major threat to

their sovereignty. Under the current international law, only the Security Council has the power to
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authorize military interventions when it identifies threats to peace. However, resolutions to

intervene are often vetoed due to political conflicts among the permanent members, resulting in

failure to act. Due to this inability of the Security Council, and considering the continuing need to

carry humanitarian interventions, it is necessary to look at other alternatives available. A doctrine

or framework for intervention would not be accepted by states, therefore, a precedent is more

plausible. This essay looked at NATO’s intervention in Kosovo and interpreted it under a regional

approach that is in accordance with practices and considerations of states and other actors.

A regional precedent that draws from NATO’s approach would require the decision being

made by a regional body comprised of the majority of the states in the region. Concerns about

preserving the security and stability of the region, as well as humanitarian reasons should be

present. There is evidence that states have been acting in a similar way to this regional precedent,

especially in Africa. This precedent would not undermine the Security Council, as regional

decisions would happen in addition to it, and the Council would remain with the power to judge

whether the intervention is truly legitimate in a post hoc basis. It was shown that there are problems

with this regional precedent and it is not an ideal solution for humanitarian intervention.

Nonetheless, as the Security Council is often unavailable, and intervention is somewhat stagnated,

some action through regional organizations is preferable than inaction.

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