Kosovo and International Law

Op Ed Piece

Henry H. Perritt, Jr.
 
          Sometime in the next couple of weeks, NATO and the UN Security Council will be asked to decide whether the international community should intervene militarily in the growing conflict over the Kosovo region of Serbia. Decision makers in Europe and the United States appropriately are determined not to repeat the errors of Bosnia, where effective military intervention was withheld until thousands of people had been killed and displaced from their homes through ethnic cleansing. Richard Holbrooke's new book, To End a War, tells the story of how hard it was to bring peace to Bosnia after the conflict was neglected for so long. I know something about this, because for the last two and a half years, I have led "Project Bosnia," through which several dozen law students and engineering students at IIT and elsewhere have helped build a rule of law in Bosnia.

          But Kosovo is not Bosnia, in one crucial respect. Bosnia was an independent nation and had been recognized as such by major European powers and the United States. Kosovo is not. It is part of Serbia, and thus as a formal matter, the disputes between the Serbian government and the Kosovo rebels are internal matters, within sovereign prerogatives of the Serbian government. One of the clearest principles of international law, now enshrined in Article 2 (4) of the United Nations charter is that other countries must not interfere in the internal affairs of a sovereign nation.

          To stop the analysis here, however, would be to repeat the error that so often has been committed in the past by international lawyers, who focus only on the theoretical form of a rarefied body of international law, without considering the practical exigencies of diplomacy and security. That gap between international lawyers and practitioners of international relations has led some prominent practitioners to reject international law as largely irrelevant in international affairs.

          But international law is not irrelevant. Whether a sovereign is acting consistent or inconsistent with international law affects its ability to enlist the support of other nations as suggested by Richard Haas' new book "The Reluctant Sheriff," explaining how America must enlist a "posse" of other nations to advance its security interests. Withough the support of international law, even those with power are isolated like Iraq. Whether a sovereign acts consistent with international law can make all the difference in mobilizing domestic political support for a particular course of action--and domestic political support is hugely important in shaping the course of American military intervention in the Balkans.

          There is growing support for the need to do something about the suffering and brutality growing everyday in Kosovo, as Senator Lott has recognized, as well as the Clinton Administration. Serbia cannot win this conflict militarily. Even if Serb forces drive Albanian militants out of Kosovo, they will remain close to the Macedonian and Albanian borders, ready to launch raids back into Kosovo, destabilizing not only Serbia but also Albania and Macedonia. But what can be done without violating international law?

         There are two, complementary, answers. First, it certainly does not violate international law for Albania and Macedonia to request international assistance, including NATO military assistance to protect their borders from incursions by Serbian military forces. Such requests and international response would be well within recognized privileges of self defense.

          Second, refugee flows of the magnitude being generated by the Kosovo conflict destabilize other countries, like Albania and Macedonia, and therefore represent a threat to international peace and security.

          Once the UN Security Council finds a threat to international peace and security, it is authorized by Article 43 of the UN Charter to call upon member nations to act, including the use of military force to remove the threat.

          While not free from controversy among international lawyers, this is the basis in international law for the UN Security Council and NATO to intervene in Kosovo. Consistent with its support for rule of law around the globe, the United States government should support a Security Council resolution finding that the refugee flows from Kosovo threaten international peace and security and therefore that NATO should be authorized to intervene if necessary as matters develop.

          The reality is that a UN resolution under Article 43 may be hard to obtain in the face of Russian opposition and veto power. Accordingly, NATO and the international community should consider a two phase intervention: an initial introduction of NATO forces along the border areas into Albania and Macedonia, which will require only a request from those governments and not a UN Security Council resolution, and a second phase imposing, as Carl Bildt suggested this week, imposition of a no fly zone in Kosovo, accompanying requirements that special police forces be withdrawn from the region.