CYIL Vol. 7, 2016

JOSEF MRÁZEK CYIL 7 ȍ2016Ȏ doctrine” for military intervention on the basis of “broad” interpretations of UNSC resolutions. The NATO members originally justified the threat and use of force against the FRY on the basis of UNSC res. 1199 which declared that the UNSC was “alarmed at the impending humanitarian catastrophe…” 20 The Report of the Iraq Inquiry stated in its “Introduction” that for the first time since the Second World War, the United Kingdom took part in an “opposed invasion and full-scale occupation of a -sovereign State- Iraq.” The decision for “use of force” provoked a profound controversy, especially when chemical, biological and nuclear weapon had not been found. The British government suggested a “strategy for regime change” in Iraq (point 57). The Inquiry report confirmed that the “invasion was not prompted by the aggression” or an “unfolding humanitarian disaster” (point 826). The invasion was taken without clear indication that military action would be lawful” (point 810). In relation to the UN Charter the Report claimed: “The Charter of the United Nations vests responsibility for the maintenance of peace and security in the Security Council.” The UK Government was claiming to act on behalf of the international community to “uphold the authority of the Security Council,” knowing that it did not have a majority in the Security Council in support of its actions (point 439). 21 In those circumstances, according to the Report, the U.K.’s actions undermined the authority of the Security Council. The NATO countries insisted that one of the purposes of NATO’s action taken without authorization in Kosovo was enforcement of the UNSC resolutions. Probably the main official argument for NATO military action was to “prevent a humanitarian catastrophe.” 22 It has been repeatedly argued that the UNSC resolution had endorsed ex post facto a non-authorized unilateral NATO action. There is no reference in the UN Charter to ex-post-facto legalization or legitimization of military actions, however. It has been also argued, that by the lack of condemnation of NATO’s actions in the UNSC a precedent was created. The UNSC rejected a draft resolution, with a majority of 12 states against 3 states, which ought to affirm that the unilateral use of force against the FRY without UNSC authorization “constitutes flagrant violations of the UN Charter, in particular Art. 2 (4) and 53” and to determine that this NATO action “constitutes a threat to international peace and security.” 23 Before the ICJ NATO member countries insisted that failure to act would have been to the irreparable prejudice of the people of Kosovo and that the human tragedy in Kosovo left no other choice… In the mentioned case the states were hesitating to acknowledge that the “justified” armed action in Kosovo was to set a “precedent”. This was e.g. the position of Germany. 20 See UNSC, res. 1160 (1999). 21 The Report of the Iraq Inquiry, Executive Summary Report of a Committee of Privy Counselors. House of Commons, 6 July 2016; available at: 22 UN Doc. S/1999/328, 26 March 1999. 23 Ibid .


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