Legality of the Use of Force Application of the Federal Republic of Yugoslavia
(Yugoslavia v. Belgium)
1999 I.C.J. 105 (Apr. 29)
Kosovo was an
autonomous province within Serbia that was filled with ethnic Albanians.
They wanted independence, Serbia didn't want them to leave.
began attacking Kosovar rebels (KLA), and also attacking civilian
Germany, US, UK, and Italy pressed for negotiations to end the fighting.
They offered the Rambouillet Agreement.
They passed United
Nations Resolution 1199, which said
that if the sides didn't stop fighting, then the UNSC would
"consider further action."
Both the KLA and
the Serbs balked and kept fighting.
the KLA accepted the terms of Rambouillet, but the Serbs did not.
bombing Serb targets in Kosovo and Serbia.
action unilaterally, there was no UN resolution authorizing use of force.
they get UNSC authorization?
have been vetoed by Russia.
China and Namibia tried a UNSC resolution condemning the NATO actions,
but it got voted down.
NATO claimed that this was a de facto authorization.
None of the
NATO countries had been attacked, and this was an internal conflict, so Article
2(4) of the United Nations
Charter wasn't applicable.
this was a humanitarian action,
that the Serbs had violated customary international law by attacking the KLA, and that there was a
chance of spillover into a NATO country.
Serbia sued NATO
in the International Court of Justice.
that NATO had violated international law by intervening in the internal
affairs of Yugoslavia by bombing and equipping the KLA.
clear violation of Article 2(4),
and Article 2(7).
that NATO's real motive was geopolitical, and that there is no precedent
or basis in international law for humanitarian intervention.
that there was no collective self-defense argument to be made under Article 51 of the United
Nations Charter because Serbia
wasn't attacking anyone outside Serbia.
NATO argued that
their use of force was legal.
to recent customary international law,
the need to prevent an ongoing humanitarian catastrophe, UN resolutions
telling Serbia to stop attacking, and the vote against condemning the
that there was a state of necessity
because they needed to stop the war before it got bigger and engulfed
A state of
necessity is a cause which justifies
the violation of a binding rule in order to safeguard, in the face of
grave and imminent peril, values which are higher than those protected
by the rule which has been breached.
must be proportionate, were the bombings proportionate?
Article 52 says that as long as the UNSC hasn't taken
action, regional organization (like NATO) can take action for the
maintenance of peace.
But it can't
be an enforcement action, or it is covered by Article 53.
that it was a humanitarian issue, and it wasn't designed to impact the
sovereignty of Yugoslavia, so it wasn't covered by Article 2(4).
that the UNSC voted on a resolution to condemn the bombing, but it didn't
get the votes to pass. That's kind of like a authorization...?
really a good argument?
to Resolution 1244, subsequent to
the bombing. It welcomed the political settlement. That was sort of a
retroactive post fact approval of the use of force.
The ICJ declared
they didn't have jurisdiction and refused to hear the case.
The ICJ found
that in order to have jurisdiction Yugoslavia would have had to have
accepted compulsory jurisdiction (under Article 36(2)) prior to the events occurring.
They had not accepted jurisdiction when the bombing occurred, so they
couldn't bring a case to the ICJ.
the ICJ noted that NATO's actions had not been "carried out with the
intent to destroy a national, ethnic or religious group," and so the
ICJ could not claim universal jurisdiction under the Genocide Convention.