NATO’s unsanctioned intervention in Kosovo was plainly a breach of Article 2.4 of the UN Charter. The question of whether the threat and use of force in this case can be defended legally will provide further considerable substance upon which the long-running debate on whether there is a right of humanitarian intervention will continue. However, for the many who hold that gross violations of human rights make ethical demands upon us which cannot be overridden by prohibitive law, such situations are presented to us as a form of ‘Justice cannot wait; law cannot bend.’ When serious and widespread suffering resulting from government action or omission within sovereign borders is characterised in this way, we are given to understand that there is a moral, and arguably, even a legal imperative driving (and justifying) action in direct contravention of international law.
Less than a year since the signing of the Peace Agreement between NATO and Serbia, the Kosovo crisis continues to pose important and sometimes difficult questions about humanitarian assistance. The massive emergency response that followed the arrival of over 800,000 refugees to neighbouring countries has been scrutinised and debated in every detail. A plethora of independent evaluations have been carried out, their number ironically propagating precisely the duplication of resources and lack of co-ordination that is a principal criticism of the original aid programme.
A Case by Case Analysis of Recent Crises Assessing 20 Years of Humanitarian Action: Iraq, Somalia, the former Yugoslavia, Rwanda, Burundi, the former Zaire, Chechnya, and Kosovo
- The Hill proposal was adopted within the framework of the attempt by the international community to address the issue of Kosova as one of autonomy and to reject any claims for independence. It must be realized that this basic approach obviously determines the flavour of the agreement throughout.
- The agreement exhibits some features of an international agreement (a treaty), but its status is in fact far from clear, and probably left deliberately ambiguous. This ambiguity is dangerous for Kosova, as the implementation of the agreement appears to be envisaged at the level of FRY law, rather than international law.
- The agreement provides for limited legal personality for Kosova and actively denies its claim to statehood. The agreement does not constitute an interim arrangement towards statehood (as opposed to the case of Chechnya), but instead freezes the envisaged subordinate position of Kosova indefinitely.
- Due to a complex and complicated division of powers among several organs, Kosova is reduced to a position of authority that is considerably less developed than was the case under the 1974 constitution. Most importantly, the legal personality of Kosova as an overall entity is reduced to a vanishing point. A claim to self-determination in the future is precluded by the fractionating of authority and its distribution to various layers of competence.
- At a local level, very significant authority for self-governance is attributed to communes or municipalities, subject to certain important safeguards relating to the treatment of local minority populations. In practical terms, this is intended to balance the lack of legal personality and significant authority of Kosova as a whole over its own affairs throughout its territory. However, this practical autonomy at a sub-regional level is interfered with by involving Serbs and possibly others as a national group which is given (a) several layers of independent authority and (b) important veto rights over all aspects of decision-making in Kovova.
- Generally, this agreement is heavily dominated by considerations of achieving a solution that is acceptable to the FRY/Serbia–even to the point of abandoning the international demand that at least the autonomy status of the 1974 constitution must be restored. Such a proposed solution sacrifices the legitimate aspirations of the people of Kosova to the perceived need of appeasing Belgrade. With the conclusion of the initial deal with Milosevic of 12/13 October, the representatives of Kosova will come under even heavier pressure to accept this sacrifice.
- Conclusion: While the Republic of Kosova should not in principle oppose negotiations towards an interim arrangement, such an arrangement must not be concluded along the lines proposed by Ambassador Hill. Even to start negotiations on the basis of this proposal will inevitably yield an unacceptable result which prejudices Kovoa’s position irreparably, for now and in the future.
This paper argues that the armed conflict in Kosovo illustrates that forced displacement resulting in both internally displaced persons and refugees is an intentional, deliberate strategy of the parties to the internal conflict, and not just a consequence or unintended effect of the hostilities between ethnic Albanians and Serbs. The escalation of hostilities was also framed by the international community’s lack of coherent conflict management strategy for Kosovo. The two principal assumptions guiding the international community’s policymaking – that separation and independence for Kosovo was not a legitimate objective and that Kosovar Albanian armed resistance was considered terrorism – generated incentives for both parties to use force to achieve contrary objectives. This created considerable difficulties for the international community to effectively protect non-combatant civilians and forcibly displaced persons.