Jus ad Bellum/UN Charter/Sovereignty

The Kosovo Precedent for Syria Isn’t Much of a Precedent

By Jack Goldsmith
Saturday, August 24, 2013, 8:02 AM

As the pressure to intervene in Syria builds, the administration once again, as in Libya, appears more focused on international law than domestic law.  Here is what the President said Thursday night in a CNN interview:

. . . When we take action – let’s just take the example of Syria.  There are rules of international law. . . .  If the U.S. goes in and attacks another country without a U.N. mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it, do we have the coalition to make it work?

The NYT reports this morning that the administration is studying closely the 1999 NATO intervention in Kosovo as a “precedent” for intervention in Syria.

But Kosovo is not much of a precedent, at least if the administration wants to satisfy international law.  The intervention in Kosovo, like the one that might take place in Syria, was an ostensible humanitarian intervention that occurred without Security Council support and that was not justified on self-defense.  (These similarities are why Kosovo is being studied.)  As such, the Kosovo bombings were impossible to square with the U.N. Charter.  Moreover, many supporters of the intervention worried at the time that (as Anthea Roberts put it) “recognizing a right of unilateral humanitarian intervention would lead to abuse,” and thus “that such uses of force should remain illegal but that the law should turn a blind eye to breaches in particular cases, such as Kosovo.”  Along these lines, the best that can be said of the Kosovo campaign is that it was – in the words of the Independent International Commission on Kosovo – “illegal, yet legitimate.”

It wasn’t just legal scholars and international jurists went out of their way to emphasize that Kosovo was not a precedent for lawful humanitarian interventions.  So too did U.S. officials.  When questioned in 1999 whether it was “possible to see the repetition of the Kosovo precedent of the use of force against a nation in other regions?,” Secretary of State Albright said that Kosovo “was a unique situation sui generis in the region of the Balkans.”   Mike Matheson, a senior lawyer in the State Department, was more explicit.  Discussing the U.S. view on the international legality of the Kosovo intervention, he said (my emphasis) that “many NATO states – including the United States – had not accepted the doctrine of humanitarian intervention as an independent legal basis for military action that was not justified by self-defense or the authorization of the Security Council.”  Matheson added (again, my emphasis):

Consequently, NATO decided that its justification for military action would be based on the unique combination of a number of factors that presented itself in Kosovo, without enunciating a new doctrine or theory. These particular factors included: the failure of the FRY to comply with Security Council demands under Chapter VII; the danger of a humanitarian disaster in Kosovo; the inability of the Council to make a clear decision adequate to deal with that disaster: and the serious threat to peace and security in the region posed by Serb actions.

This was a pragmatic justification designed to provide a basis for moving forward without establishing new doctrines or precedents that might trouble individual NATO members or later haunt the Alliance if misused by others. As soon as NATO's military objectives were attained, the Alliance quickly moved back under the authority of the Security Council.  This process was not entirely satisfying to all legal scholars, but I believe it did bring the Alliance to a position that met our common policy objectives without courting unnecessary trouble for the future.

In short, the United States tried to make sure that the NATO intervention into Kosovo would not be a precedent under international law for future interventions.  But of course, as we are starting to see in Syria, the precedential value of an action under international law cannot be established at the time of the action, but rather is determined by how the action is interpreted and used in the future.