BITS Research Report 00.4
December 2000
ISBN 3-933111-06-4


Humanitarian Intervention, NATO and International Law

Can the Institution of Humanitarian Intervention Justify Unauthorised Action?

Clara Portela

This report is also available as a PDF-File


Table of Contents:

1.1. Legal Difficulties on NATO’s way
1.2. ‘Reviving’ the notion of Humanitarian Intervention
1.2.1. Assessing the practice The argument based on state practice The argument based on UN practice
1.2.2. Assessing the Acceptance by States


2.1. Exploring Ways of Establishing the Notion of Humanitarian Intervention
2.1.1. Establishment by practice or by codification
2.1.2. General authorisation by the UN Security Council to regional organisations
2.2. Remaining problems


2.3. Difficulties in the qualification of Kosovo as a Humanitarian Intervention


3.1. Is caution in place?
3.2. Consequences for NATO-Russia Relations


3.3. Consequences for the relationship between NATO and the international community







CSCE Conference on Security and Co-operation in Europe

Economic Community of West African States


European Union


(Socialist) Federal Republic of Yugoslavia


Implementation Force


North Atlantic Treaty Organisation


New Strategic Concept


Organisation des Nations Unies


Organisation for Security and Co-operation in Europe


Organisation du Traité de l’Atlantique Nord


Stabilisation Force


United Nations


United Nations Security Council


Western European Union



Some issues in international affairs are simply matters of principle. Thus they are far more important than the subject under dispute. This is certainly true for the subject of this study: the question whether unauthorized military action can be justified as humanitarian intervention. Are humanitarian interventions legal under international law? Were NATO's military actions justifiable under international law? Will international law be changed in order to justify operations such as the NATO air-strikes over Kosovo?

This study about the legitimacy of NATO's military action presents a clear answer. NATO's military operations during the Kosovo war were illegal under international law. They were neither mandated by the UN Security Council, nor justifiable for reasons of gross violation of humanitarian law. While it might be possible to declare NATO’s military action a precedent on the way towards an emerging, new understanding of international law, there are strong arguments to believe that the latter is neither the case nor would it be prudent.

However, NATO decided to retain the right to resort to military force again without the presence of a UN mandate. The Alliance's "New Strategic Concept", which was adopted during the Washington NATO-Summit in April 1999, as well as the Alliance's follow-up documents do not rule out that NATO will take military action again without the authorization of the international community.

This has a significant impact on the future of NATO and on the Alliance's relations with others - nations as well as international organizations. NATO- Russian relations are a good case in point.

The Kosovo conflict has had a serious impact on the relationship between NATO and Russia. Based on the 1997 "NATO-Russia Founding Act", Russia expected NATO to give Moscow some say over whether or not a military intervention should take place. Russia's veto-power in the United Nations Security Council provided Moscow with another reason to believe that it could influence the events in the Balkan region. However, NATO finally decided instead to make Kosovo a precedence for undertaking unilateral military action without a UN mandate and without Russian cooperation. Russian President, Boris Yeltsin, decided to make the conflict a symbol of his political will-power in resisting the West. Russia halted cooperation with NATO.

Most Western politicians and analysts were quick to point out that Russia is a declining power in search of ways to retain influence beyond regional affairs. They pointed out that Russia has overriding financial and economic reasons to cooperate with Western countries and that it does not have realistic chances of building strategic alliances with China, India, and others that could substitute broken links with the West.

While these analysts were correct in predicting that Russia would finally renew her cooperation with the Alliance, they tended to overlook or underestimate the fact that Russia perceived NATO's decision as a matter of principle and as a matter of long-term impact.

Russia must be most interested not to be bypassed in international organizations, such as the UN or the OSCE. International organizations whose work is based on the principle of "one nation, one vote" provide a country like Russia some security against violations of their own national interest. Within such organizations Russia cannot be bypassed and by virtue of being a veto-power at least block developments that are directed against her interests. However, the efficiency of these international organizations is also a necessary prerequisite for an international system that is based on the rule of law. Many nations might feel the need to resort to the law of the strongest, should these bodies not function properly or should they continue to be sidelined by unilateral action.

As a result, Russia's new strategy documents, which were adopted in 2000, emphasize the need to strengthen these international organizations. They form part of Russia's policy to promote a multi-polar international system and to build restraints against unilateralism. They also reflect the fact that other countries might have similar interests.

Some Russian analysts fear that NATO might prepare to use "humanitarian intervention" as a reason for intervening in Russia's internal affairs. These analysts are likely to err, at least as far as the foreseeable future is concerned. NATO and its member states will continue to respect the territorial integrity of the Russian Federation, simply because - if for no other and better reasons - Russia will continue to be a nuclear power in the foreseeable future.

However, while there might not be a direct risk to Russia herself, Western interventions that are legitimized as humanitarian interventions might occur outside of Russia's borders and in its vicinity. A number of plausible scenarios exist in which such an intervention might run contrary to Russian interests. Thus Russia fears that she might again have to face the choice of having to join the West (even if this option is not in Russia's best interests) or being bypassed in the NATO-Russia framework and in the UN system. The realization that such a situation could occur already cautions Russia against cooperating too closely and trustfully with NATO. This situation has the same effect on NATO-Russian relations as NATO's policy of enlargement.

On the other hand, NATO under US leadership signaled a strong interest to retain as much flexibility and as little restriction as possible. "With the UN, whenever possible, without it when necessary" was the title of an internal memorandum presented by the US Embassy at NATO to its Allies in Brussels as early as during the summer of 1993. Months before the well-reported Mogadishu events in Somalia, which are often quoted as the origins of the US' critical attitude towards UN peace enforcement missions, this food-for-thought paper already made the case that became the line of argument during the Kosovo operations: NATO should not limit itself to UN-mandated military action. The Alliance should be prepared to act without authorization by the UN Security Council, if necessary. Unanimity in the Security Council could be prohibited by China, Russia, or both. Why should countries that are not real democracies be able to legitimately block sixteen of the most democratic nations from pursuing whatever they perceive to be legitimate? NATO decided to create a precedence for being able to bypass anyone, who might decide to limit the Alliance's options, and to take military action whenever the Alliance felt such action was necessary.

NATO-Russia relations and the authority of the UN Security Council suffered from this decision. The negative impact of this decision was later limited by offering Russia a face-saving chance to participate in the negotiations to end military action and by involving the UN and Russia in the UN-mandated KFOR peace enforcement operation. However, these initiatives did not come from NATO or the United States. They were formulated within the European Union and conducted within the context of the G-8 and UN.

There is no reason to relax. While there might have been moral motivations for supporting NATO's course of action, there was no legal basis to do so. Even worse the ethical arguments that were provided were based on questionable facts. This opened the door for arguments that Western nations (under the leadership of NATO) might finally resort to a policy of ethical imperialism as another form of promoting the law of the strongest.

This makes it clear that the negative, long-term impact on NATO-Russian relations as well as on the future role of the UN and the OSCE (not the short-term one) causes the most serious concern for the future. If NATO's decisions are not revisited and revised, this will have a strong, long-term impact on the system of international relations.

Given the importance of the Kosovo war for NATO-Russia relations and the future role of international organizations, the present study provides a number of basic arguments to be considered when looking at the future of Russia's policy towards the West. Since the subject is a matter of principle and of interest to many nations, Russia's reaction will be important, but not the only one of importance.

Otfried Nassauer, Co-Director, BITS


Executive Summary:

NATO's unauthorized action in Kosovo prompted a number of observers to argue that either the notion of humanitarian intervention existed or it should be established in order to allow for enforcement operations in situations of extreme humanitarian necessity. This report analyses whether the institution of humanitarian intervention exists and whether the establishment of such an institution is legally feasible and politically convenient.

Part I argues that the institution of humanitarian intervention does not exist:

  • A legal analysis shows that, in principle, the notion of Humanitarian Intervention is incompatible with the ban on the use force enshrined in the UN Charter.

  • An examination of recent developments shows that Humanitarian Intervention has not been established under customary law.

Part II argues that it is extremely difficult to accommodate such an institution within the current system of international law due to the following difficulties:

  • Since the ban on force has the status of ‘peremptory law’, it can only be substituted by a norm of the same character. This means, the formation of a norm that establishes the notion of Humanitarian Intervention requires the consent of the whole (or nearly the whole) community of states. There is currently no prospect of reaching such an agreement.

Part III finally argues that the West should not promote the establishment of such an institution because:

  • The promotion of unauthorized action implies the willingness to ignore the Russian veto in the UN Security Council, therefore seriously undermines co-operation with Russia.

  • It could also negatively impact NATO's relations with the rest of the international community. The right to undertake humanitarian intervention leaves room for a wide range of abuse, thus undermining inhibitions about the use of force.


There can be no doubt that NATO’s decision to intervene in Kosovo has been the event with the most disruptive impact on the relations between the West and Russia over the past few years. It was no coincidence that the Alliance adopted crisis management as one of its core tasks in the new Strategic Concept1 in the middle of this operation - the first one carried out by the organisation against a sovereign state and outside the framework provided by the UN. The most striking feature of the document is that it seems to suggest that this function can be undertaken directly by NATO and not on behalf of other entities, such as the UN or OSCE. It states that one of the fundamental security tasks the Alliance performs is "to stand ready, case-by-case and by consensus, in conformity with Article 7 of the Washington Treaty, to contribute to effective conflict prevention and to engage actively in crisis management, including crisis response operations."2 This leaves the option open that non-UN-authorised action could actually be adopted as a general policy.

The possibility of NATO operating a policy that, in principle, allows for unauthorised use of force on a permanent basis raises some questions which will be the object of this study. It will explore three main questions:

  • How does the Kosovo intervention relate to Public International Law?

    First, this paper will analyse how non-authorised action relates to International Law. It will specifically look at the question whether NATO can lawfully invoke a right of humanitarian intervention to justify the Kosovo operation. The fact that the unauthorised Kosovo operation was widely justified by officials on humanitarian needs has led a number of experts to claim that the operation bears exemplary character as a precedent for the establishment of humanitarian intervention as a legal institution.3 International interventions in the 1990s have produced not only controversy, but even some confusion among certain observers.

  • Can unauthorised action be brought into consonance with Public International law through the establishment of the institution of Humanitarian Intervention?

    It has even been suggested that NATO should promote the establishment of such legal institution since this would provide the Alliance with a lawful basis for future operations. Is this feasible?

  • How would this move affect NATO-Russia relations?

    Beyond the legal question, the consequences of legitimising humanitarian interventions should be assessed. Particular attention will be paid to NATO – Russia relations. This discussion should take into account the need to conduct NATO policies in accordance with its goals.

Some conclusions will follow.

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