The UN found itself sidelined by NATO: Security Council sanction for the bombing was neither sought nor given. Secretary-General Kofi Annan, who had been Under-Secretary-General for Peacekeeping Operations at the time of the Srebrenica tragedy in 1995, was torn between criticism of the illegality of NATO actions and sympathy for the victims of Serb atrocities. He also had to be mindful of the negative repercussions of any harsh criticism for already shaky UN-US relations.
The question remains: Has the international organization been permanently sidelined in its efforts to navigate states through the choppy waters of war and peace in a more complex, congested and volatile post-Cold War environment? Has it sacrificed human and group rights at the altar of state sovereignty and the territorial inviolability of member states? Has the Security Council finally proven to be of little use in a world in which old antagonisms between Council members resurface and taint their judgments on global issues? These are difficult questions. Given the failure of NATO to simply force its preferences onto Yugoslavia and the importance of active Russian and acquiescent Chinese diplomacy in bringing the conflict to an end, one wonders when the post-conflict constellation of powers will stabilize.
NATO: UN Challenger or Enforcer?
In their addresses to the opening of the annual session of the United Nations General Assembly in September 1999, both US President Bill Clinton and UN Secretary-General Kofi Annan referred to the issue of the need for humanitarian intervention to avert or stop mass killings, and to the debate on whether regional organizations can act to intervene in this way only with the authorization of the UN. In retrospect, there are five lines of response to the relationship between the NATO action in Kosovo and the United Nations.
1. Illegal NA TO Action
The first is the simple claim that NATO acted illegally in terms of its own constitution, the UN Charter, state practice, and on prudential grounds. This line of argument was articulated most forcefully by China, Russia, and India (as well as Serbia). Under the UN Charter, states are committed to settling their disputes by peaceful means (Art. 2.3) and refraining from the threat or use of force against the territorial integrity or political independence of any state (Art. 2.4). Furthermore, Article 53(1) empowers the Security Council to "utilize… regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council," with the sole exception of action against enemy states during the Second World War (emphasis added).
Neither the UN Charter nor the corpus of modern international law incorporates the fight to humanitarian intervention. State practice in the past two centuries, and especially since 1945, provides only a handful of genuine cases of humanitarian intervention at best, and on most assessments none at all. Moreover, on prudential grounds, the scope for abusing such a right is so great as to argue strongly against its creation. According to the weight of legal opinion and authority, the prohibition on the use of force has become a peremptory norm of international law from which no derogation is permitted and NATO was not permitted to contract out at a regional level. In this view, in circumventing the anticipated UN veto NATO repudiated the universally agreed-on rules of the game when the likely outcome was not to its liking. The prospects of a world order based on the rule of law are no brighter. The overriding message is not that force has been put to the service of law, but that might is right.
