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.