NATO intervention in the Federal Republic of Yugoslavia
During the armed conflict of non-international character between the Federal Republic of Yugoslavia (FRY) and the Kosovo Liberation Army (UCK), the intervention of NATO against the FRY supposed the internationalization of the conflict for all the parties.1 NATO decided to intervene in this conflict against the forces of the FRY arguing that they were neither supporters of the UCK, nor against Serbia. Indeed, they stated that their operations were in order to prevent a “humanitarian catastrophe”.2 Even if they used this label and stressed that they were not making war, their intervention was later on traduced in military operations based mainly on air attacks.3 The Security Council never authorized this intervention.4 Besides, NATO was accused in many occasions of non- respecting the rules of International Humanitarian Law (Hereinafter “IHL”).
The present paper will discuss the following questions:
- What is the legal status of NATO?
- To what IHL instrument is NATO bound by as an organization?
- What are the IHL obligations of States when acting on behalf of NATO?
- How do NATO and States conjugate their different obligations under IHL
during their interventions?
- How to make accountability for IHL breaches committed by NATO and the Allies?
To answer the question of whether NATO is bound by IHL, we should first of all analyse which is the legal status of NATO in the international panorama. The organization actually recognizes itself as having “juridical personality” and capacity to be subject of rights and obligations.5 Related to this, it sounds relevant to point out the Advisory opinion of the ICJ held in 1949 in relation with the international personality of the UN6 where it was concluded that the UN had international legal personality and was a subject of international law for mere functional necessity, since to achieve the goals and purposes of the UN charter it is indispensable to have an international personality distinct from the one of the States, so here international personality is identified with the possession of rights and duties exercised in relation with other States. 7 Following this test, the UN is recognized as having international legal personality, nevertheless this personality is limited to the scope of the UN charter, which means that it is a partial
1 The ICRC would argue that only the conflict between NATO and FRY had international character, and the one between UCK and FRY would remain non-international.
2 “Armed intervention in Kosovo: the legal basis of the NATO forces obligation to respect international humanitarian law” 31-03-2000 Article, International Review of the Red Cross, No. 837, by Péter Kovács. https://www.icrc.org/eng/resources/documents/misc/57jqcq.htm.
4 “The Kosovo crisis and the law of armed conflicts”, 31-03-2000 Article, International Review of the Red Cross, No. 837, by Sergey Alexeyevich Egorov, https://www.icrc.org/eng/resources/documents/misc/57jqcx.htm.
5 Article IV Agreement on the status of the North Atlantic Treaty Organization National Representatives and International Staff signed in Ottawa in 1951.
6 “Reparation for injuries suffered in the service of the United Nations”, ICJ Advisory Opinion of 11 April 1949.
7GAUTIER P. “The reparation for injuries case revisited : The personality of the EU”, 2000, p.338-339. http://www.mpil.de/files/pdf2/mpunyb_gautier_4.pdf.
- Quote paper
- Marina Fernandez Arroyo (Author), 2016, Was the NATO intervention in the Federal Republic of Yugoslavia bound by International Humanitarian Law?, Munich, GRIN Verlag, https://www.grin.com/document/354408