(Yugoslavia v. Belgium)
Case Citation: 1999 I.C.J. 105 (Apr. 29)
Also see: http://www.icj-cij.org/docket/files/105/7155.pdf
- Kosovo was an autonomous province that was within Serbia.
- Kosovo was populated with ethnic Albanians who wanted independence, but Serbia didn't want them to leave.
- The Serbian military began attacking Kosovar rebels (KLA) as well as civilians.
- France, Germany, Russia, the US, UK and Italy all pressed for negotiations to end the conflict.
- The Rambouillet Agreement was proposed.
- United Nations Resolution 1199 was passed, which stated that if the sides did not stop fighting, the UNSC would consider further action.
- Both the KLA and the Serbs ignored this threat and continued fighting.
- Eventually, however, the KLA accepted the terms of the Rambouillet, but the Serbs did not.
- NATO began bombing Serb targets in Serbia as well as in Kosovo.
- NATO took action unilaterally -- there was no resolution by the UN that authorized this use of force.
- Question: Why did NATO not get UNSC authorization?
- Answer: It would have been vetoed by Russia.
- Russia, China and Namibia tried to get a UNSC resolution passed condemning the actions of NATO, but it was voted down.
- NATO claimed that this was a de facto authorization.
- None of the NATO countries had been attack, and this conflict was internal, therefore Article 2(4) of the United Nations Charter was not applicable.
- NATO claimed that the action was humanitarian, and the Serbs were in violation of customary international law by attacking the KLA. NATO claimed there was a chance of spillover into a NATO country.
- Serbia sued NATO in the International Court of Justice (ICJ).
- Serbia made the argument that NATO had violated international law by intervening in the internal affairs of Yugoslavia by bombing and equipping the KLA. This is a violation of Article 2(4) and Article 2(7).
- Serbia also argued that NATO's real motive was in fact geopolitical and that there was no precedent of basis in international law for humanitarian intervention.
- Furthermore, Serbia claimed that there was no collective self-defense argument to be made under Article 51 of the United Nations Charter. This was because Serbia was not attacking anyone outside of Serbia.
- NATO, however, pointed to recent customary international law as well as the need to prevent an ongoing humanitarian catastrophe, the vote against condemning the attack as well as UN resolutions that told Serbia to stop attacking.
- NATO made the argument that there was a state of necessity because the war needed to be stopped before it became bigger and engulfed other countries.
A state of necessity is a cause that 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 that are protected by the rule that has been breached.
Was there a state of necessity in this case. Under the state of necessity, acts taken must be proportionate, were the bombings proportionate?
Under Article 51, as long as the UNSC has not taken action, regional organizations such as NATO can take action for the maintenance of peace.
However, these actions can not be an enforcement action, or it would be covered under Article 53.
- NATO's argument was that it was a humanitarian issue and it wasn't designed to impact the sovereignty of Yugoslavia, therefore it was not covered by Article 2(4).
- Furthermore, NATO argued that the UNSC voted on a resolution to condemn the bombing, but it did not get the votes to pass. Therefore, this looks like an authorization.
- NATO pointed to Resolution 1244 subsequent to the bombing. The resolution welcomed the political settlement. This is somewhat like a retroactive post-fact approval of the use of force.
- The ICJ stated that they did not have jurisdiction to hear the case.
- The ICJ stated that in order to have jurisdiction to hear the case, Yugoslavia would have had to accepted compulsory jurisdiction under Article 36(2) prior to the events occurring.
- Yugoslavia did not accept jurisdiction when the bombings occurred so they could not bring a case to the ICJ.
- Furthermore, the ICJ noted that NATO's actions had not been carried out with the intent to destroy a national, ethnic or religious group and, as a result, the ICJ could not claim universal jurisdiction under the Genocide Convention.