Int. j. econ. manag. soc. sci., Vol(4), No (2), February, 2015. pp.

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Principle of Non-use of Force based on International Law:

A Case Study of Legitimizing NATO Measure on Kosovo Crisis
Leila Raiesi Dezaki
Assistant professor of Islamic Azad University, Shahrekord, Iran

Mohammad Mansour Azimzadeh Ardebili*

PHD Candidate on International Relations, Islamic Azad University, Isfahan (Khorasgan branch), Iran

Mehdi Habibollahi
PHD Candidate on International Relations, Islamic Azad University, Isfahan (Khorasgan branch), Iran
*Corresponding author: m_m_azimzadeh@yahoo.com

Keywords

Abstract

Contemporary International law

Human rights
Kosovo Crisis
NATO
Use of force

The present article intends to find the answer to the fallowing two questions: 1. How the use of force is defined in
contemporary international law? 2. Despite the fact that the security council of the UN is free to detect the explicit
violation of human rights and taking the military actions against the states that violate human rights and also based on
the fact that it does not permit military forces preventing the violation of human rights in Yugoslavia, so what is its
justification to legitimize NATO measures to the use of force in Kosovo Crisis? The presupposition is that states are
obliged to use the force only in two cases of self-defense (collective/ individual) and collective military measures, to
preserve international peace and security based on the UN Charter framework. To answer the second question it will
be pointed out that by disregarding Security Council justification and military interference, NATO measures intend to
establish a thorough link with humanitarian international laws. NATO justified its measures by disrespecting human
rights and fundamental rights of the individuals to interfere on Yugoslavia affairs without considering the Security
Council authorization. These two issues will be studied through three chapters of the present article.

1.

Introduction

Since sovereignty has become the sole benefactor of the international community, the states have been prevented from interfering in each other's
affairs and assigned as an absolute governor of their own nationals. According to this, the states are promised to abstain from using the force and
taking military measures against each other to pursuit the interests. However, these commitments did not prevent the states from using the force
and it has been enforced more as war especially after World War I.
After World War II and establishment of the UN organization to preserve the international peace and security a new arena has been created and
some latitudes as taking nonmilitary and military measures (articles 41 and 42 of the UN Charter) have been granted to the council- as the
executive agent of the UN- to counteract with threatening factors of the peace, scofflaws and aggressive actions (article no.39 of the UN Charter)
Although the conditions of the cold war disabled the UN and Security council at its head- to play the role ,the situations after disintegration of
the Soviet Union enable the security council to take part challenging with violating human rights cases in Iraq (1990-1991) Somali (1992-1993)
Bosnia i Herzegovina (1993-1994) , Ronda (1994) ,Haiti (1995), Kosovo (1998), East Timor (1999), Darfur Sudan (2003), and Libya (2011)
(Simbar and Ghorbani,2012, p: 90). Also a self- defense right (collective/individual) was granted to the states according to article no.51 of UN
Charter.
Yet Kosovo Crisis (1998-1999) represents that member states of NATO were not faced with none of these common exceptions of international
law, but they took military measures against former Yugoslavia (present Serbia). Now let describe the issue more. Kosovo Albanians goal was
independence and autonomy after disintegration of Yugoslavia and the crisis of Bosnia. Yet the central force or Serbia did not tolerate the
privileges and some human rights calamities happened in this territory by conflicting liberal military of Kosovo and the military force of the
republic of Yugoslavia. In spite of the recursive and numerous attempts done by the authorities of the member states of the organization for
Security and Cooperation in Europe (OSCE), their negotiations cut with Belgrade leaders On march, 24, 1999 and the authorities of two
organizations left Yugoslavia ground which caused an aerial attack that took 77 days along. During these attacks wide area of the former
Yugoslavia and Kosovo territories are bombarded and it continued till Yugoslavia was assigned a treaty with NATO authorities. No intervention
permit was issued for NATO by the UN and no measure was taken by it based on self-defense principle in the attacks.
Now we turn to the main questions of the research. The present article attempts to find answer for the two fallowing questions: 1. how the use of
force is defined in contemporary international laws? 2. despite the fact that the security council of the UN is free to detect the explicit violation
of human rights and taking the military actions against the states that violate human rights and also based on the fact that it does not permit
military forces preventing the violation of human rights in Yugoslavia, so what is its justification to legitimize NATO measures to the use of
force in Kosovo Crisis?
To answer the first question the supposition is that states are permitted to use military instruments only in two exceptional cases as self-defense
principle (collective/ individual) and collective military measures to preserve the international peace and security based on the UN Charter.
And to find the answer of the second question we suppose that NATO measures has a thorough link with humanitarian international laws by
disregarding security council justification and military interference on Yugoslavia affairs. And NATO justified its measures by disrespecting
human rights and fundamental rights of the individuals to interfere on Yugoslavia affairs without considering the Security Council authorization.
The article is composed of three main chapters: first chapter defines the use of force based on legal viewpoints and specifies a framework for it.
Second chapter studies the use of force according to the contemporary international law. And finally the legitimating of NATO measure is
studied related to disregarding Security Council justification and its intervening on Yugoslavia affairs.
Some considerations about the use of force and its prevention on international law
In an international community where there is no a super national power and the legal system has not improved, the states resort different
instruments as the use of force to achieve their goals. It takes different forms depending on different partners and circumstances, force could be

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International Journal of Economy, Management and Social Sciences Vol(4), No (2), February, 2015.

used by various procedures at different levels. The ways by which the force is used are as fallowing; using armed forces against other states
territory, mobilizing forces in the borders, Sending volunteers to the front, providing facilities for foreign groups to take measures against their
states or against a third state & creating resistance group in the occupied territories. All of these ways have some provisions (Skubiszewski,
1968. P: 751).
The most usages of the force happen in the wars. War has been as an instrument for the states by which they achieve their goals, but since it has
involved disasters so human beings has tried to prevent it. Therefore, the states that used the instrument, tried to justify their action. Hence, the
concept of legitimized (legal) war considered against illegal war. (Nardin, 1984. P: 295). The view of legitimized war limited the term less use of
force to some extent in ancient times, especially in the Middle Ages. Although it justified the limitation of the use of force, it considered as a
valuable step according to legitimized war.
Here we point out some considerations to reach the contemporary view. 3 views are studied; Christian view (Middle Age and Modern Era view).
Islamic view and League of Nations covenant view. Contemporary view of the use of force and its legitimating is studied by use of force
according to the contemporary international law.
1.1. Christian viewpoint
In the Middle East, the legitimized war view was of natural rights, but Christian scientists as Sen Thomas Ekvinas (1225-1274) made it
religious& entered it into legal institutions. They believed that if there was no legitimized war, it would be fey based on moral conscious and
customary law. Yet, it does not characterize the illegal laws. The influence of Christianity and church legitimized those wars that were done by
the order of the church leaders to preserve the justice and advocate the Christianity against infidels. They believed that the other wars should be
declared as illegal. According to the Christian leaders view, sensible case of legitimized wars are crusades that were started by European feudal
in order to restitute Jerusalem of Muslims and continued through 8 steps from 11th to 13th centuries.
However, there are basic changes on religious concept of legitimized war view, as two European Christian scientists, Vitoria (1480 1546) and
Swarez (1548 1617) legalized the view point as fallow war is neither an event nor a simple happening, but it is a way to resolve the disputes
among the states. To check whether a war is equitable or not, 4 provisions should be observed; a) an equitable declaration that refers to the
formal declaration of a competent Status which convicted the private wars of the middle Ages. b) An equitable motivation which refers to a
motivation based on justice and related to the consequences of the war. c) Necessity that indicates the lack of other ways. d) Managing the
war equitably so that grounds for reestablishing the order and peace could be provided (Ziyaee Bigdeli, 1991, P. 381).
The influence of Christianity and church made those wars legal that were done by the order of the church leaders to preserve justice and
advocate Christianity against infidels. So the rest of the wars would be declared illegal.
1.2. Islamic view
The use of force and war are not considered as an inevitable forced phenomena by Islam and it is defined neither a forced uncontrollable
procedure nor a valuable one. Also it conflicts natural rights school viewpoint because it believes that there is a close relationship between
something that exits and something that could be existed regardless of moral and humanitarian rules. According to which the war not only
considered as anon compulsory phenomena but it also defined as a necessity that is observed as the sole way of human perfection. Although
Islamic view agrees with the natural rights school that war is not a compulsory phenomena but it conflicts with it and claims that the source of
necessity of the war is searched not in the nature but in real and immoralities perse, that only gad aware of it. Also it contradicts with modern
views of absolute conflict with war that contrary to the past viewpoints that the ware is convicted excepting self- deference. Moreover there are
several factors that legitimize the war at least by one opponent regardless of the limitations.
1.3. An inspired view of the League of Nations Covenant
Article 12, paragraph l of the covenant , requires members of the community to resolve the disputes that may end the relationship, or submit it to
be settled by judicial agent or investigated by the council and do not resort to the war till 3 months after ordering the dictum or report of the
council. In addition, by Article 13 no. 4 members of the community agree that as a dictum is issued they execute it by good will and do not resort
the war against the state member of the nation. Moreover, article. 15 paragraphs 6, states that if a report of the council is agreed by the members
except representations of the dispute parties- the member of the society promised to abstain from resorting the war with the side that approved
its recommendations.
The a above provisions contrary intention is that the League of Nations (LN) legitimize the war implicitly though such title is not chosen for it .
So according to the covenant legal wars are as fallows;
1 .Warfare at the end of a 3 month breaks after issuing the dictum or the report of the council.
2. Warfare against a state that does not agree with juridical dictum or execute it
3. Warfare when the council report is not approved
According to the general principles, some wars are considered as legal rights:
1 .War among nonpermanent member states of the League of Nation that do not abstain from campaigning right and recognized it as a customary
right.
2. Defensive war; since self defense is a recognized fundamental and global right though it is not mentioned by the covenant.
3. Reprisal war; as it is not referred in the covenant (Ziayee Bigdeli, 1991, p. 390)
2. Use of force based on contemporary international low (contemporary view)
All of the measures limit the domain of the use of force and the war on international fields. In such circumstances as in Paris Kellogg Briand
pact (1927) expresses the removal of the war. However, all these attempts include some exceptions. In fact the exceptions and lack of an
efficient instrument for punishing and limiting the aggressive party prepared the ground for the world war.
So major states or UN people -as it called by the UN Charter- decided to preserve the future generations against war disaster. It imposed
intense disasters to human beings during World War II & immediately after that and formed firm frameworks for preserving peace and limiting
the war and use of force.
As it will be represented, the contemporary viewpoint is based on UN Charter primarily. The use of force was specified and limited according to
the UN Charter and it is pretended to justify only in 2 fallowing cases; 1. Self-defense against the aggressive party. 2. Collective military
measures to preserve International peace and security based on the UN Charter.

2.

Self defense (personal / collective)

2.1. self defense (personal / collective)

In international laws, self defense, is defined as a right by which the states become capable to defend themselves and the states that have political
& security incorporation, by army attack and immediate military reaction individually or collective (Babaei, 1996, P. 88) . The most important

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Principle of Non-use of Force based on International Law: A Case Study of Legitimizing NATO Measure on Kosovo Crisis
International Journal of Economy, Management and Social Sciences Vol(4), No (2), February, 2015.

international document that recognizes self-defense as a natural and innate right of the state is the UN Charter. (Particularly, Article 51). Article
51 of the UN Charter states that until the measures related to preserving international peace & security are taken by security council, there is the
right to defend (individually collection) for the state being aggressed. Yet, if appropriate measures are not taken by the Security Council for
some reasons, so the state world continues its self defense (Aryan, 1998, P.34).
Viewpoints regarded to self defense are different based on Article 51 of the UN Charter. Now we explain 2 groups of the viewpoints; a)
proponents of the right to defend against imminent danger who present its broad interpretation, recognize it legal against the attack that may
happen (though it has not happened yet).
b) Proponents of the right to defend against army attacks-who offer narrow interpretation of article 51 of the UN Charter-believe that the article
is recognized as an exception for article 2 para.4 of the UN Charter and it is interpreted generally so that the exceptions of rule should be
interpreted narrowly. Also article 53 of the UN Charter- that refers to the territorial treaties- states that it is possible that the members of the
treaties take some executive measures against renewal policy of their enemies prior aggression and the above provisions are not necessary when
the defense against imminent attack is permitted by article 51 (Oakhurst, Bita, p: 327) .
Remember that self-defense, collective or individually represents 2 types of the defenses: 1.Individualistic 2.collective (as the promise of the
member states of NATO) and they are considered as states innate rights. Of course, these are applicable until necessary measures are taken by
the Security Council.
2.2. Collective Military Measures to preserve International peace and security based on the UN Charter framework
As mentioned, all measures that taken based on League of Nations' Covenant were considered as on attempt to limit the use of force and war on
international affairs.
However, all of the measures reflected some exceptions and limited effective instruments that impose miserable war on human beings life.
According to the UN Charter and article 24, the member states remise the primary responsibility of preserving international peace and security to
the Security Council to accelerate effective measures to be taken by the United Nations. The UN Charter tried to repose effective sanctions to
the UN bodies especially to the Security Council such as diplomatic, economic and military sanction. According to article 41, wherever
diplomatic and economic sanctions are not effective military ones will be utilized.
Military operations are army compulsory steps that are predicted as effective and real sanctions against violating aggressive acts or threatening
the peace.
Article 42 of the UN Charter states that if the predicted measures of article 41- diplomatic and economic steps-are recognized as not enough by
security council, it will take compulsory measures (by the use of force) via aerial, marine and land farces to preserve international peace &
security. These measures may involve parades and siege and other aerial, marine or land actions by the members of the League of Nations. In
fact, chapter 7 constructs the main part of collective security in the world system.
Of course all military measures are depend on the use of military forces by the member states, though the real performance of the UN show that
taking compulsory measures are possible via authorizing or certifying the states that intends to do that individually or via special unions (as
different states assembly to charge to Iraq during Persian gulf war) or via territorial organizations and other international organizations as
NATO (Simma, 1999, p.325).
The last point of chapter 1 is to focus on the above notes and the first hypothesis of the research. The hypotheses is that the temporary
international laws, approves the rule of the use of force and war boycott, but there are 2 exceptions; 1. Removing aggression and self-defense, 2.
Taking military measures to preserve international peace & security. In other words, the gape available on the UN Charter to establish a
collective security systems and a real sanction evinced collective defensive treaties to be held among many states and also guarantee the
fulfillment of the right of collective self defense in article 51 of the UN Charter.
In fact self defense is considered as an exception for the principle of non use of armed forces- the topic of article 51 of the UN Charter- and as a
natural right privileged to the states to remove aggressor (s) (and not to abolish the violation) until necessary measures are taken by the security
council. To execute these measures, the Security Council would act as a state organ even as a super state that is charge of preserving
International public discipline 2 possesses and police power. The principle of nonintervention on the measures is not useful and all taken steps
will be indispensible for all the states. Indeed, the council could take temporary decisions, as cease fire, related to the aggressive parties before
taking violent measures.
According to temporary international laws there are no other rights for the use of force except the above two cases.

3.

Kosovo crisis

After World War II, Yugoslavia disintegrated into 6 communist republics of Serbia, Bosnia & Herzegovina, Slovenia, Croatia, Macedonia and
Sweartbeorg and two states of Kosovo and Vjodria. In 1974, Kosovo crisis recognized formally as semi independent territory (it was recorded
informally as in dependent state for 50 years)
But in 1989, Slobodan Milosevic, Serbia president- who imposed Serbia tyranny on whole territory- abrogated its independence.
In the first years of 1990s, Kosovo Albanians, demanded independence, who was leaded by a semi hidden (peaceful) political party called
democratic union. Serbia leaders also provoked Serbians immigration to the territory and repressed most of the Albanians in the territory.
Finally in 1995, Dayton agreement established the peace among Bosnia, Croatia and Serbia by which Kosovo territory is specified so that it
involved Kosovo state. To sum up, it could be stated that the agreement legitimized the dominion of Serbia on Kosovo state. Then, the peaceful
strategies of the democratic union of Kosovo were not supported by the Albanians of the Kosovo, anymore. Since 1996, the liberator military of
Kosovo attacked the Serbia police and other Serbian state institutes. In 1998, Serbia military was sent to the territories that were controlled by
Kosovo liberator military which intensified the parties disputes. The contention entailed the homelessness of hundreds of Albanians and made
international nations to react. The threat of NATO to aerial attack caused until 1998, Serbian admitted that their military farces be withdrawn and
the homeless people return to their homes and accepted the appearance of international supervisors (as organization for Security and Cooperation
in Europe (OSCE)) in the territory. The resolution 1203 of the Security Council supported the measures but the ceasefire was so frail that made
Serbian forces to execute 55 Albanians out of Rakak village. The genocide reflected broadly in the world media by which the leaders of NATO
member states understood that Serbian do not respect any agreements. In the middle of February, some negotiation were stated between Serbians
and Albanians of Kosovo by the leadership of NATO member states and companionship of the UN in France Rambolt .While Albanians of
Kosovo approved an agreement after they ensure of establishing supporting forces of NATO peacekeepers- Serbians rejected that maybe
because of NATO peacekeepers. The war was continuing during these times so the negotiations stopped in the middle of March & on March. 22.
The chairman of American negotiators made some attempts, but they failed (Steele 2013, P.181). It should be remembered that by constructing
the International Contact Group (American Britain, France Germany, Italy and Russia) to control Kosovo crisis & intensify International
pressure on Belgrade, the liberator military of Kosovo succeeded to occupy one third of Kosovo ground (Valiollahi Malekshah, 2000, p.900-

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International Journal of Economy, Management and Social Sciences Vol(4), No (2), February, 2015.

901). As liberator military of Kosovo encountered with military force of Yugoslavia Republic human rights Calamities was happened in the
territory.
In spite of recursive and numerous attempts of Organization for security and cooperation in Europe and NATOs authorities , the negotiations
with Belgrade leaders were interrupted on march 23rd, 1999, and the leaders of the two organizations left Yugoslavia ground that Caused 77 days
aerial war on March 24th . Along this, the major parts of former Yugoslavia ground & Kosovo territory bombarded by NATO organizations. The
bombardment was continued until Yugoslavia state signed a treaty with NATO authorities to end the bombardment.
The UN Security Council measures
Securities Council interferes on Yugoslavian internal crisis on its duty. Their solution that was issued by the UN Security Council includes
several properties.
1. The two resolutions (1160 and 1196) were issued based on the content of chapter 7 of the UN Charters the resolutions that were issued to
preserve the peace, return it or to remove the threats against the peace. So they were binding. 2. The resolutions attempted to focus on
Yugoslavia territorial integrity & political independence. As the first resolution and international attempt did not include a hopeful result so the
second resolution was issued (Momtaz and Najaf Astad, 2000, p. 135)
The two resolutions were disregarded by Belgrade authorities, human disaster continued and the global peace & security threatened all of which
were factors by which NATO organization threatened Yugoslavia by humanitarian intervention against it that took along 77 days. However the
measure taken by NATO did not authorized by Security Council military attack of NATO member states to the former Yugoslavia created a
revolution on humanitarian interferences approach. The intervention challenged the exclusive role of the UN and its executive element
Security Council - on humanitarian intervention and opened a new page on International relations profile about humanitarian use of force out of
the UN framework. (Abbasi Ashlagi, 2007, p.33). According to the global system, was possible to disregard the human disasters of Yugoslavia
and justify other states measure by respecting International law and equalizing the members sovereignty? NATO intervened on Yugoslavia
affairs regardless of the Security Council authorization .The measure taken by NATO was punished by the Security Council and was approved
by the resolution that was issued after ceasing the dispute in Yugoslavia and no statement was issued by the UN to reject this action.
The Nature of illegal Intervention
NATO did not receive Security Council authorization. According to the UN Charter, Security Council is responsible for detecting the threats of
international peace and security and also its violation. Based on this fact the council will take compulsory or noncompulsory measures on the
basis of chapter 7 of the UN Charter if it detects threats or violation of international peace and security. The states are obliged to do self
defense according to Article 51 of the UN Charter, until the council proceeds. In Kosovo crisis, NATO did not obtain authorization of the
Security Council to threat and take measures against Yugoslavia and was not authorized to take actions based on selfdefense framework. It
rationalized Kosovo crisis and could intervene based on the contention of humanitarian International law, as a main excuse.
The military intervention, happened after failure of the negotiations, was the base for violating the principle of non use of force on international
law which contradicted with two above exceptions of UN Charter Article 42 and 51 and violation of Article 4.
All three broad interpretations of Articles 2, and 51, paragraph 4 and article 53 of the UN Charter, reject the three interpretations of the UN
Charter that are about military intervention on Kosovo and violation of independence and integrity of Yugoslavia. Issues as supporting
minorities rights, campaigning with terrorism and etc. should be lawful and the references that fulfill its systematic nature is the security council
of the UN. According to the International law NATO measure to use of force was against international law because the Security Council did not
authorize this action and NATO action was not justified (Momtaz & Najafi Asfads 2000, p. 135)
So NATO action is not considered as a legitimized factor of the use of force on contemporary International law. The interventions did not done
according to the principles of International laws and control of UN organization and the use of force in Kosovo crisis (1999) taken by NATO
was not authorized from onset.
Legitimizing NATO measure based on global human right system
Now we turn to answer the research second question. How we can construe NATO measure to use of force in Kosovo crisis? As it was
mentioned NATO action to disregard the authorization of the Security Council and its military intervention on Yugoslavia has a deep link with
humanitarian International law.
Disregarding human rights and fundamental right of human beings provides the ground for justifying and legitimizing NATO measure to
intervene Yugoslavia affairs with no justification by Security Council.
The Security Council is able to detect the threatening factors against the peace and advise necessary measures based on articles 41, 42 of the UN
Charter. However whet are other states duties where the extended violation of the human right on a state territory is going to be considered as a
vested affair or the members use veto and could not the slaughters by compulsory measures and satisfy itself just by deploring or condemning
the case (Ashlaghi / 2008, p. 32). In other words, by considering that some scholars approved the principles of the non use of force,
nonintervention on others affairs and respecting other states sovereignty (Article 2 paragraph 4 ,7) and legislated to support human being and
provided their welfare by applying them, the question is that is it possible to resort these principles and take no measures to rescue the victims
rights are violated when the states take effective measures to preserve human rights or when a state engaged in internal conflicts among rivals
and there is no a distinguished state. (Rashidi, 2007, p. 70).
Nowadays , the international system of human right that protect individuals and groups against states violation of their rights , is different from
its ancient background , because based on International views, humans rights as human being and not as a state citizen, are supported. Now there
are many international institutes that support human nights and preserve it against violation by the state and other states so that human right issue
is being noticed more than before and challenge the state and governmental & nongovernmental organizations. So the common belief is that
other states and the League of Nations are supported to preserve human rights. In other words, there is a human rights revolution is going to be
happened. The military attack by NATO member states to the former Yugoslavia has created a revolution on humanitarian intervention
approach. The attack challenges the role of UN organization and its executive force Security Council about humanitarian international and
opened a new page on international relation profile about legitimizing the use of force out of the UN framework. (Ashlegi, 2007, pp: 28-25)
So along this metters, NATO action is being legitimized. It took humanitarian intervening measures by chanting to preserve human nights in
Kosovo (Valliolahi, 2000, p.904). Bill Clinton the US forms president) states about the necessity of intervention that:
Not only Americans but 19 NATO member states . Should resist against the world super-power if we own necessary requirements and
attendants to help us. (Steele, 2013, p.19)
Britain defense minister, Jeofry Robertson, also used compromise nightmare to justify Britain contribution in NATO .He claims that: we cannot
be neutral we should prosecute from the very first days of Hitter rule. The history would have been different if we contrast the oppressor state.
British people are aware that compromising is not an effective approach in 1930s. In 1990 also the trend was like that .We should make
Milasowich to obey before the Balkan is surrounded by violence. (Steele, 2013, p: 197).

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NATO member states prescribed the military actions for the organization to prevent the Federal Republic of Yugoslavia from obeying the
severity council statements and prepare their organization for aerial attacks against Yugoslavia. The legal basis of the action was humanitarian
intervention that was related to the UN Charter in order to obtain legal authorization. NATO position is summarized by its general secretary
Solona on Oct .9th , 1998 as fallows,
The important notes are stated now and on former days are as fallow; until now federal Republic of Yugoslavia has not regarded it by pressing
demands of international community despite statement no. 1160 dated on march, 30th, 1998, and fallowing that statement no 1199 dated on
sep. 22, 1998 both of which were issued based on chapter 7 of the UN Charter. The exact report of the general secretary of the UN
organization focuses on the above statements as the danger of a kind of human disaster in Kosovo and since no practical solution was taken by
Federal Republic of Yugoslavia to resolve the crisis peacefully, so the disaster is going to be continued. In fact there is no hope that another
statement is going to be issued by the Security Council to take executive action about Kosovo .The situation is being intense more than before as
stated in statement no. 1199 of Security Council which is considered as a critical threat to the peace as security of the territory. So, I believed
that NATO confederate states agree that there are legal basis for them in order to threat the use of force as stated in the statement 1199 of the
Security Council about the situation of the present crisis of NATO. (Simma, 1999, p: 335).
In other words, NATO applied its power on Yugoslavia by including human rights without UN authorization and regardless of international
opposition, because supporting the human right was considered as legitimized matter after cold war era. This made intervention to be observed
not in the framework of human rights but as a self defense .Confederate forces actions of NATO started to react to the military and police
actions of the Serbian on March 1999. Kosovo crisis represented basic challenge related to the democratic and human right values. NATO
condemned horrible aggressions of human right and the use of discriminative use of force by Yugoslavia state and claimed that the actions
necessitates the provided actions of NATO (Mandokha, 2009, p.441) .
Latest changes show the progress of human intervention and drive the international community to the way that no state could consider absolute
qualification on internal affairs and it would be recognized responsible if human right violated so that the international peace & security were put
in danger. In this case the consequences would be included but they could not resort the two customary principles of the states absolute
sovereignty on their territory and nonintervention on states internal affairs. The states accelerate human right globalization by being member on
the UN UN Charter, the rights that are globalized and is working above the governmental borders and frameworks that are considered among
governmental organization and community debates. Human right concept is considered as an achieved and globalized goal. All human beings
are enjoyed this right as they are human which are basic right that control human joint affairs that are common among all human beings.
According to the changes has been created on human beings' right and its expansion which direct the domain to preserve International peace and
security it converted to a factor to observe human right on internal and external levels (Ashlagi, 2007, pp: 22- 35).
Simma believes that NATO threats violate article 2, Para.4 of the UN Charter as they are done without considering explicit or implicit
authorization of the Security Council.
The verdict verifies military measures primarily it the next step. However, Kosovo circumstance as a widespread human disaster and global
general thought should be considered which demanded International institutes interventions. Simma believes that a red line is able to distinguish
NATO measure from Interventional legitimating. However it will put in danger the global collective security system if it becomes part of NATO
strategic future programs. He consents that there are difficult circumstances in international relations that surrounds horrible bottlenecks and
there will be no solution except taking measures out of legal framework because of moral considerations and political necessities. He pretends
NATO measures related to Yugoslavia, as an executive measure instead of the UN organization with no authorization by the Security Council.
By this, NATO role would be replaced on its strategic concept. Doing illegal actions as the final attack is a fact for some compelling reasons and
applying a shift on such exceptional matter to a general policy is a distinguished matter. NATO imitation principle is considered as the UN
Charter principles if its establishment treaty includes a legal rule that could not be intervened by the most dynamic interpretations (Simma B.,
1999. P. 317).
Cassese A. and Simma claim about the issue that NATO measure is accomplished away UN Charter and it is based on illegal (common)
international law.
They claim that three groups of comprehensive values establish relations among the states in the present system framework as peace, human
rights, self-determination and if there is a controversy among them, the peace is recognized as the final and dominant factor. They believe that
although NATO measure taken related to the former Yugoslavia was morally legal, the measure contradicted with common international law that
legitimized the use of forcible measures only to end the vast savageries as a crime for human beings and a threat for the peace. Cassese considers
forcible measures legal to prevent the commitment against human being and using force with no authorization of the security council to end the
intense violation of human right as a threat to international peace and security if there is no way to prevent.
However resorting forcible measures should be conformed to general rule of humanitarian International law as observing analogical general
principle. However, he claims that if such rule is constructed in the world, it could be considered as an exception of UN Charter system about
collective measures based on Security Council. In other words, the exception is the one that is called self-defense in article 51 of the UN Charter
(Cassese, 2003, PP: 77- 81).
Therefore, According to the principle of sovereignty equality of the member states and prevention of treating or using the force and
nonintervention in other states internal affairs as the main principles of the UN, the basis of the UN could not be interpreted away from its
purposes especially Article (para. 3) and 51, 56 about respecting the human rights and fundamental freedoms. Since it will be cleared that there
is a direct and reciprocal elation between consistent peace and respecting human right, and fundamental freedoms of human being in the world
(Bellamy, roll, P:2).
Nowadays because of the globalization, sovereignty is affected by this judgment that how a state behaves with its citizens?
Now, observing human rights provisions and fidelity to democratic principles prevent sovereignties to be vulnerable against foreign decisions
and could guarantee the state independence in the world in which reciprocal dependence is one of its specifications. In the current world, the
states should be profited of moral legitimating other than legal legitimating; otherwise they will be encounter with other states and international
organizations international public thoughts pressure that are affected by legal institutes of human rights. The pressure could make the violating
state to observe the provisions (Zaneganeh, 2010, p.13)
The UN does not enjoy of military force to control forcible measures although the UN organization doesnt exercise an independent power and
volunteer forces play this role from super powers, so the volunteer alliances and territorial private organizations are not fulfilled. The primary
responsibility of supporting citizens and non army members is for the states and if they do not afford the responsibility, it will be assigned to the
League of Nations (Sharifian, 2006, pp. 926-927)
So, the root of NATO intervention is related to the fact that nowadays human rights do not relate to the state where the rights are violated
anymore. Human rights issue is converted to a global concern. The general belief is that the rights violation would have irrevocable
consequences. Also it is accepted that the treaties that are passed to respect the human right are ergo omnes and all individuals are authorized to
take steps (Not the use of force) to preserve the respect. In addition a belief is going to appear in International community that extended
systematic violation entailing an intense responsibility for the state so that other states or international organizations are authorized to resort

Leila Raiesi Dezaki, Mohammad Mansour Azimzadeh Ardebili *, Mehdi Habibollahi

162

International Journal of Economy, Management and Social Sciences Vol(4), No (2), February, 2015.

measures above the ones that are supposed to be applied about erroneous responsibility. Finally, the League of Nations is going to intervene the
internal conflicts that violates human rights (Cassese, 2003, p.78)

4.

Conclusion

Two objectives were followed is the present article. First was about the definition, limitation and domain of the use of force in international law.
To meet this goal, some viewpoints were studied about the use of force. As mentioned, while the Middle Age Christians legitimated royal wars
that supported Christianity and against the impiousness, the modern Christian school limits the use of force Islamic school searches the necessity
of the war on real corruptions that only god aware of that and it contradicts with modern views of absolute conflict of war- that it could be
legal in most cases. Then some contemporary logics were studied. It was mentioned that the rule of non use of force and war sanction are
accepted by the contemporary International law but there are 2 exceptions; excreting the aggression and self defense and second taking military
actions to preserve International peace and security.
Second goal was to do case study about the use of force on contemporary international law which was about Kosovo crisis and NATO
intervention. As mentioned, according to chapter 8 it was necessary to take Security Council authorization to take military interventions of UN
member states. Article 51, Para l. States that the security council will apply such contracts or territorial institutes to take executive actions in
given situations.
However no executive actions will be accomplished by territorial treaties or institutes without Security Council authorization.
There was no statement to authorize NATO military attack. Yet, after NATO intervention on Kosovo, a statement was issued by Security
Council which condemns NATO attack. This would be regarded as approving the customary construction of human rights in special cases; it is
appeared that NATO action to disregard security council authorization and take military intervention on Yugoslavian affairs with humanitarian
International laws thoroughly. At the end, the most important justification for NATO measure is human right. Disregarding human rights and
fundamental right prepared the ground for justifying NATO measure to intervene on Yugoslavian affair without considering the authorization of
the Security Council.

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