U.S. Could Have Justified War Acts

By Michael P. Scharf, for the National Law Journal

Mr. Scharf, a former attorney-adviser for U.N. affairs at the state department, teaches at and is director of the Center for International Law and Policy at New England School of Law.

The United States and its NATO allies have defended the air strikes against Yugoslavia on moral grounds -- to stop atrocities -- and on security grounds -- to prevent the conflict from spilling over to neighboring European countries. But they have never articulated a legal justification for the intervention.

There are, in fact, several compelling legal arguments that could be made to justify the Kosovo intervention. But each possible legal underpinning carries with it the specter of a practical consequence that the United States was hoping to avoid. Now the United States is paying the price for its silence.

Hauled into court

On May 11, the International Court of Justice heard oral arguments in a case brought by the Federal Republic of Yugoslavia against the United States and nine other NATO countries.

Counsel for Yugoslavia argued that the NATO intervention was an unlawful use of force in violation of Art. 2(4) of the U.N. Charter, that the members of NATO have breached the 1949 Geneva Conventions by targeting civilians and using depleted uranium weapons and that the attack against the Serbs constitutes a form of genocide in violation of the Genocide Convention. In response, the United States and its NATO allies challenged the court's jurisdiction on technical grounds.

While America's technical arguments may ultimately carry the day, what the U.S. government failed to grasp was that Yugoslavia was seeking a victory not in the courtroom in The Hague, but in the court of public opinion. By portraying the NATO action as a breach of international law, President Slobodan Milosevic has taken a huge step in his quest to level the moral playing field between Yugoslavia and NATO.

Mr. Milosevic's strategy could have been blunted if the United States had outlined the legal case for the air strikes, either before or during its presentation to the World Court. Legal justification, for instance, could be based on the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which obliges those countries that have ratified it, including the United States, to "undertake to prevent and to punish" genocide.

The United States has been careful not to support claims of independence for Kosovo, so it could argue that the purpose of the air strikes is neither to impair Yugoslavia's territorial integrity nor to challenge its political independence as prohibited by Art. 2(4) of the U.N. Charter. But, until this week, the United States had avoided using the "G word" and had opposed an international indictment of Mr. Milosevic out of fear that it would frustrate the possibility of a negotiated peace settlement.

Another strong argument could be based on the dissolution of the former Yugoslavia and the failure of Serbia/Montenegro to be recognized as a state under international law. When Croatia, Slovenia, Bosnia and Macedonia achieved their independence, the Security Council declared in Resolution 777 of 1992 that Serbia/Montenegro was not entitled to continue the U.N. membership of the former Yugoslavia.

Given Kosovo's claim for independence and Montenegro's indication that it might seek to secede as well, the legal process of dissolution may legitimately be considered to be continuing. Thus, the United States could argue that Serbia/Montenegro does not possess full rights of sovereignty and territorial integrity as protected by Art. 2(4) of the U.N. Charter.

No sovereign right

Several of the NATO countries referenced Resolution 777 in their argument before the World Court, but they argued only that Serbia/Montenegro does not have a right to bring a case since it is not a party to the U.N. Charter. The problem with taking the argument to the next level is that if Serbia/Montenegro were not deemed a sovereign state, it could not be held responsible for failing to abide by the treaties of the former Yugoslavia, most importantly, the Geneva Conventions, which would protect any American soldiers captured in the conflict.

Given their potential negative consequences, the U.S. government's reluctance to embrace either of these legal arguments is perhaps understandable, but its failure to articulate a legal rationale for the intervention has played into Mr. Milosevic's hands. It has not only weakened support for the intervention, it has also perhaps mortally wounded the power of the Security Council and dangerously eroded international respect for the rule of law.