Intervencija NATO snaga protiv Savezne Republike Jugoslavije u 1999: Pravna analiza

In: Politička misao, Band 36, Heft 4, S. 79-99

Abstract

The situation in Kosovo up to 1999, and all attempts which failed in order to find a just and lasting solution for that problem, have fully justified the above criteria for a lawful humanitarian intervention which was undertaken by the NATO forces against the territory of the Federal Republic of Yugoslavia. It seems, however, that the responsible persons in the NATO were not aware of the competence of the International Criminal Tribunal for the former Yugoslavia to investigate to prosecute persons responsible for use of prohibited arms and for destruction of some objects. Some of these unlawful acts constitute grave breaches of the 1959 Geneva Conventions and violations of laws and customs of war. In these circumstances it is the legal duty of the Prosecutor to undertake an investigation. In case that he fails in his duty, there are no statutory limits in respect of the crimes provided in the Statute of the Tribunal. (SOI : SOEU: S. 98f.) + Most legal writers in their writings confuse notions of humanitarian intervention, intervention of a State in order to protect its citizens abroad and humanitarian relief. The use of force for protection of citizens abroad, when they are in immediate danger of losing their lives or suffering serious injury, can exceptionally be justified by a state of necessity as regulated in article 33 of Drafts Article on State Responsibility by the International Law Commission. Further conditions for such an intervention are provided in the wording of the US State Secretar, Daniel Webster in the Caroline case of 1837, relating to the self-defence. Actions of humanitarian relief have nothing unlawful in their character, but a question can arise of the obligation of parties to a conflict to receive and allow its distribution to a who are in need. The 1949 Geneva Conventions and the First Protocol of 1977, provide in this respect a legal obligation of all parties to internation armed conflicts. Such relief actions can be imposed as obligation to parties to internal armed conflicts as well, by UN Security Council resolutions based on Chap. VII of the UN Charter. + In the view of this author there is no rule of positive international law granting a right to foreign States to intervene by force, either in protection of their citizens, or when a humanitarian intervention is required. The matter can only be of exceptional circumstances precluding wrongfulness of the use of force, which otherwise remains prohibited. When the matter is of humanitarian intervention, circumstances precluding the wrongfulness would, according to this author, be the following: (1) There should be a situation of systematic, repeated and widespread commission of international crimes by a State authority against its own citizens. Special problems are created to the international community by widespread practices of ethnic cleansing. (2) Such a situation constitutes itself a "threat to the peace" calling for an enforcement action by the Security Council according to the Chap. VII of the UN Charter. (3) In case that the Security Council fails in its primary responsibility of maintaining international peace and security and when there are no other means, a group of States or an organization can undertake a humanitarian intervention by use of force in order to stop the commission of crimes. In these circumstances it acts as de facto organ of the entire international community of States. (4) In these extreme and exceptional circumstances, States taking part in such an action cannot obtain any advantages in their profit. (5) Collective intervention by a single State acting in the name of several other States or an organization. However, even such an intervention should have priority over humanitarian intervention undertaken by a State acting in its o name. (6) It is self-evident that in performing a humanitarian intervention there should not be committed international crimes especially against protected persons, including civilian population