Under international law Serbia/Montenegro may be legitimately subjected to the use of military force designed to prevent it from committing atrocities against its civilian population and from promoting regional destabilization.

The people of Kosova, who are entitled to a right of self-determination, may properly call upon NATO forces to help defend them against ethnic cleansing and genocide.

As the former Yugoslavia is still in the process of dissolution and Serbia/Montenegro is not a recognized state under international law, Serbia/Montenegro does not posses full rights of sovereignty and territorial integrity and therefore the concerns relating the illegitimate interference in "internal affairs" and the setting of a negative precedent are minimized.

A wide variety of international legal justifications thus exist for the ongoing NATO military campaign against Serbia/Montenegro.

NATO forces may act against Serbia to prevent it from committing genocide and ethnic cleansing against the people of Kosova.

Numerous first hand accounts confirm that Serbian military forces have committed systematic and widespread atrocities against the civilian population of Kosova.

The European Union special investigator's task force specifically found that the Racak massacre constituted a crime against humanity.

There exists no basis under international law for an entity to commit war crimes, crimes against humanity, ethnic cleansing, or crimes of genocide against its own people.

On the contrary, international humanitarian law authorizes member states of the international community to act individually or collectively to prevent an entity from committing such crimes against its own people - as these actions are viewed as a crime against all humanity. NATO forces may legally act against an entity that foments international conflict.

The Serbian regime is responsible for three Balkan wars in Slovenia, Croatia and Bosnia, which involved ethic cleansing and genocide. As part of its continuing campaign against non-Serbs, the Serbian regime has now embarked on a fourth ethnic war against the people of Kosova. Although Serbia claims ownership of Kosova, this most recent war is part of a wider conflict premised on the redrawing of existing international boundaries.

In carrying out its attack against the people of Kosova, the Serbian regime has struck into Albania, Bosnia and Macedonia, and has demonstrated its intent to push the conflict into these states in order to achieve its tactical and strategic aims. As the guarantor of European security, NATO possesses the authority to use force to bring an end to this process of international destabilization.

The former Yugoslavia is still in the process of dissolution.

The European Union's Yugoslav Arbitration Commission has found that the former Yugoslavia has dissolved and that Serbia/Montenegro does not continue its international legal personality. Given Kosova's claim for independence, and Montenegro's indication it will seek to secede as well, the legal process of dissolution may legitimately be considered to continue.

Being in a state of dissolution, the former Yugoslavia does not possess full rights of sovereignty and territorial integrity, and may not legitimately claim that NATO forces have no right to act to protect the civilian population of Kosova from its ethnic aggression.

Serbia/Montenegro is not a recognized state.

Legal Basis for NATO Military Action Taken Against Serbia/Montenegro (Part 2 of 2)

Serbia/Montenegro has not been recognized as a state by the United States or the European Union and is not a member of the United Nations or any other international organization.

Although Serbia/Montenegro claims to continue the international legal personality of the former Yugoslavia, the United States and European Union have publicly rejected this claim, and the United Nations Security Council has specifically declared that Serbia/Montenegro is not the continuity of the former Yugoslavia.

Absent an international legal personality, Serbia/Montenegro does not possess the full attributes of sovereignty and territorial integrity that might otherwise limit the ability of NATO to act.

The people of Kosova are entitled to self-determination, and thus entitled to exercise their right of collective self-defense.

The people of Kosova represent a clearly defined group of people with a distinct identity who have been systematically denied fundamental human rights and the opportunity to engage in collective democratic self-governance. As such, the people of Kosova are entitled to exercise their right of self-determination seek international recognition for Kosova as an independent state.

As a people entitled to self-determination and the formation of an independent state, the people of Kosova may properly call upon NATO forces to engage in collective self-defense against ethnic aggression carried out by Serbia.

The Kosova conflict is not a civil war.

A civil war defines a conflict between two opposing armies or between an army and an organized belligerent force. Although a Kosova Liberation Army exists and has been engaged in limited combat with Serbian/Montenegrin forces, the vast majority of "conflict" takes place between Serbian/Montenegrin forces from outside Kosova and unarmed civilians, representing 90 percent of the indigenous population of Kosova.

Given the nature of this conflict, there is no basis for Serbia to declare that this in an "internal" conflict in which NATO may not seek to involve itself for the purpose of protecting the people of Kosova.

Prepared by Paul R. Williams

Assistant Professor of International Law, American University Legal Adviser to the Government of Kosova Former Attorney-Advisor for the U.S. Department of State

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