CYIL Vol. 7, 2016

JOSEF MRÁZEK CYIL 7 ȍ2016Ȏ The NATO position was defended by former Secretary- General Javier Solana on October 9, 1998. His main argument was that the FRY had not complied, despite UNSC resolutions 1160 and , with the demands of the “international community”. He also mentioned the Report of the UN Secretary- General, warning inter alia of the danger of “humanitarian disaster in Kosovo”, as a “serious threat to peace and security”. 37 States participating in the attack have justified their action mainly by the argument that it was necessary from the overwhelming need to stop the atrocities of the Serbs in Kosovo. President Clinton declared that NATO’s action had “helped vindicate the principles and purposes of the U.N. Charter.” 38 The NATO countries regarded their action as justified because it was not taken by one state but by a group of states acting unanimously within the framework of an intergovernmental organization. According to B. Simma, former judge of the IJC, already in October 1998 NATO’s threat against the FRY breached the UN Charter, despite NATO’s effort to rely on the doctrines of necessity and humanitarian intervention and to conform to the sense and logic of relevant UNSC resolutions. He stressed subordination of NATO’s activities to the principles of the UN Charter. Nevertheless, apparently in an endeavour to escape from legal ties on the use of armed force, confronted by today’s political reality, he admitted: “hard cases involving terrible dilemmas in which imperative political and moral considerations leave no choice but to act outside the law. His assertion on the “breach” of the UN Charter in this case seems to somewhat contradict another statement of his that a “red line separates NATO’s action from international legality.” 39 In this connection he warned that “should such an approach become a regular part of the strategic programme for the future, it would undermine the universal system of collective system.” 40 The NATO armed actions, not having been authorized by the UNSC, are not in conformity with the UN Charter. The question which arises at this point is the well known controversy about “implicit” or “ex post facto” authorization by the UNSC. In the view of Simma, the positive reception by the UNSC of the results of NATO threats of armed force cannot be read as an authorization of such force in Kosovo granted implicitly or ex post . He considers the opposite view as “untenable”. Nevertheless he very cautiously mentioned that the UNSC, as a “political organ”, in many instances will have accepted or built upon facts or situations based on or involving “illegalities”. 41 There are lawyers who do not have doubts that the NATO action in Kosovo “can be seen as legitimate”, acknowledging at the same time “that actual lawfulness” 37 SOLANA, J. Letter from Secretary – General of 9. October 1998/ cited in B. Simma, supra note 2, p. 7. 38 The statement by President Clinton of 21 Sept. 1999, White House, press release, p. 4, also the statement on 22 Sept. 1999 in the GA by the Italian Foreign Minister. 39 See supra note 2, p. 1.

40 Ibid ., p. 1. 41 Ibid ., p. 11.

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