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. Serbian forces began attacking Kosovar rebels (KLA), and also attacking civilian targets. Russia, France, 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. Eventually, the KLA accepted the terms of Rambouillet, but the Serbs did not. NATO began bombing Serb targets in Kosovo and Serbia. NATO took action unilaterally, there was no UN resolution authorizing use of force. Why didn't they get UNSC authorization? It would have been vetoed by Russia. 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. NATO claimed 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. Serbia argued that NATO had violated international law by intervening in the internal affairs of Yugoslavia by bombing and equipping the KLA. That's a clear violation of Article 2(4), and Article 2(7). Serbia argued that NATO's real motive was geopolitical, and that there is no precedent or basis in international law for humanitarian intervention. Serbia argued 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. NATO pointed 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 attack. NATO argued that there was a state of necessity because they needed to stop the war before it got bigger and engulfed other countries. 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. Acts taken 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. NATO argued 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). NATO argued 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...? Is that really a good argument? NATO pointed 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. In addition, 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.