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Legal aspects of the multinational intervention in Albania

Страны
Албания
Источники
Govt. Albania
Дата публикации

Journal of Humanitarian Assistance

Sokol Braha
Permanent Mission of the Republic of Albania to the United Nations
320 East, 79th Street
New York, NY 10021

Tel.
212-249-2059 (Office)
212-879-2062 (Home)

1. Introduction.

Responding to the serious crisis which deteriorated to the collapse of state authority in a large part of Albania during the first half of this year, a group of countries carried out an operation through a Multinational Protection Force, authorised by the Security Council.

Mandated by Security Council resolutions 1101 (1997) and 1114 (1997) "to help ensure prompt and safe delivery of the humanitarian assistance, to help establish a safe environment for missions of international organisations in Albania, including those providing humanitarian assistance", the Force has had an important stabilising role and fulfilled successfully its tasks and objectives. The Force has helped in the creation of a safe environment during the June electoral process, especially for the OSCE/ODIHR missions".

The presence of the Multinational Force in Albania has effectively blocked the risk for the country slipping to anarchy or even to internal political conflict.

In the following few lines it will be attempted to dwell on some of the main legal aspects of the intervention in Albania carried out through the Multinational Protection Force.

2. Humanitarian interventions.

Essentially, the multinational humanitarian interventions are carried out in order to prevent massive and grave violations of human rights, to avoid human catastrophe. In the humanitarian interventions, two elements are crucial: legality and legitimacy. They should be authorised by the United Nations Security Council.

The legal doctrine is very diverse on the legitimacy of humanitarian interventions. Some authors accept the legitimacy of humanitarian interventions, but the current dominant opinion does not favour and does not recognise a general right to humanitarian intervention. Meanwhile, in the international legal doctrine there is no consensus also on the illegality of humanitarian interventions. On the other hand, the International Court of Justice, in its historic decision in the Nicaragua Case which has been called "an authoritative construction of law", has effectively concluded that the only legal armed intervention would be the one carried out in self-defence in terms of Article 51 of the Charter of the United Nations.

The legitimacy and legality of multinational humanitarian interventions should be considered on a case by case basis, evaluating the merits of each case. It is clear that the Charter provides for a complete framework for the Security Council to authorise multinational humanitarian interventions in cases when an essentially-humanitarian situation constitutes a threat to the international peace and security. But the legal thinking should go a bit further in suggesting that there is no prohibition in the legal system established by the UN Charter for the Security Council to act energetically in cases of genocide, situations which threaten human life on a massive scale because of the use of force or other causes, hunger being one of them.

3. Multinational intervention in Albania.

a. From a legal point of view, the existence of a threat to peace constitutes a sufficient basis for the Security Council to authorise the use of force. But, in the case of Albania, what lacked in the actions of the Security Council was precisely the determination of the existence of a threat to the international peace and security. The practice of the Security Council includes the presumption of the existence of a threat to international peace and security; hence, the Council does not determine the existence of such a threat but acts in the same way as if such determination was already done. Thus, in the resolutions of the Security Council the standard phrase "Determining that the situation in ... constitutes a threat to the international peace and security" does not appear. In this context, it is very interesting, and, meanwhile important to note that the Council did not choose the preferred and usual manner of proceeding to determine "the situation in Albania as a threat to international peace and security". Rather, the Security Council determined that "the current situation of crisis in Albania constitutes a threat to peace and security in the region". The position of States favours a close link between regional peace and security and the international peace and security. However, it should be noted that none of the provisions of the Charter refers to such concepts as "regional peace" and "regional security".

b. The Security Council acted properly in avoiding the classical determination of the "threat", because acting contrary would undoubtedly involve serious difficulties in reaching the desired effect., i.e., authorisation of the multinational intervention in Albania.

Though the situation in Albania was a complex one, it however was essentially a situation of absence of order and state authority. The partial chaos in the country caused many casualties, but it would be difficult to asses that it could have degenerated to a civil war or would have constituted a serious threat to the neighbouring countries. Separate actions committed in different parts of the country could not prove that the weapons massively possessed by the people were pointed at each other with the ultimate aim of physical elimination, nor were those weapons brutally directed against any of Albania' s neighbours. This is more true if one considers the fact that a process of national reconciliation started in Albania in less than ten days from the massive looting of military depots. The process of national reconciliation, though it cannot be realised genuinely within a short period, it however had a great impact in easing tension and increasing confidence among the people. The establishment of the Government of National Reconciliation effectively prevented the danger of the country slipping into civil war, a danger much exaggerated by foreign media, though the risk was true.

c. From the evaluation made above, it could be unrealistic to believe that China, a permanent member of the Security Council, would accept that the situation in Albania constituted a threat to international peace and security in terms of the Charter of the United Nations. The Chinese viewpoint indeed remained that the situation in Albania was essentially an internal matter of the Albanians.

d. The Security Council has not accepted in practice the concept of "potential danger" or "imminent danger". In 1946, a draft-resolution presented by Poland before the Security Council which proposed that the continuation of the Franco regime in Spain constituted a threat to the international peace and security, was not supported by the majority of the Council' s members. Poland for its part tried to establish that Article 39 of the UN Charter included also the "imminent danger", but such a suggestion was not accepted.

In conclusion, it could be stated that the existence of "an imminent danger" or "potential danger" for the situation in Albania to threaten international peace and security would have hardly led the Security Council to using Chapter VII of the Charter in order to authorise the multinational force in Albania.

e. On the other side, the multinational intervention in Albania enjoyed a great political support and had a strong moral basis which gave it a powerful legitimacy, able enough as to avoid even a single negative vote of any of the permanent members of the Security Council which could have prevented the required authorisation for the intervention.

The situation in Albania had a high humanitarian dimension. The continuation of chaos, further blocking of the main ports and airports, the complete insecurity reigning in the main roads linking important urban areas, undoubtedly risked that very soon, the food and medical reserves which were massively robbed would finish. Though the urgency of assistance was hyperbolised, it seems quite sure that the continuation of the situation which prevailed during the month of March, would seriously threaten many lives as result of hunger or paralysis of medical services and supplies. In such conditions, the intervention in Albania which could essentially have humanitarian character, could not have produced positive effects had it been unable to have also a general stabilising influence in the country.

Meanwhile, the strong political support both domestically and internationally to the efforts of the Government of National Reconciliation, the continued involvement of the OSCE, a regional organisation, in dealing with the situation in Albania, as well as the leading role of Italy in mobilising the force, made it possible for the Security Council to act promptly.

The high legitimacy of the multinational intervention in Albania could best be put through the words of the UN Secretary-General, Kofi Annan, who in his statement for the press in Rome, on 15 April 1997, noted that the multinational intervention in Albania "is a service not only to the Albanian people and the European continent, but to the international community".

f. The authorisation of the Multinational Protection Force in Albania by the Security Council marked a further development and interpretation of the powers and functions of the Council for the maintenance of international peace and security. Such powers derive from the primary responsibilities of the Council for the maintenance of international peace and security, recognised by the Charter of the United Nations. The legal system established by the UN Charter, the provisions of the Charter related to international peace and security, the principles and objectives of the United Nations, allow, in the final analysis, for a flexible interpretation of the competencies of the Security Council in such a way as to enable the Council to discharge its primary responsibilities on maintenance of international peace and security.

4. Conclusions.

The multinational intervention in Albania, known as Operation "Alba" which was carried out through the Multinational Protection Force is a "good example which shows how a political and military operation of international stabilisation can be carried out with responsibility and solidarity" .

Implemented in difficult and unclear conditions, in a situation of virtually complete absence of state authority, the multinational intervention in Albania was a complex activity, encompassing humanitarian, security and political aspects. Its nature and the role it played can be best understood only if they are viewed in the context of the comprehensive assistance and support of the international community given to the country.

The intervention in Albania finds support in the legal system of the UN Charter. Its authorisation by the Security Council is based on its functions and primary responsibilities for the maintenance of international peace and security. The authorisation of the intervention is a reaffirmation of the broad competencies of the Security Council of the United Nations.

The multinational intervention in Albania shows that the preventive capabilities and capacities under the framework of the United Nations or/and in the regional context to prevent human catastrophe can be successfully developed and used. The existence of political will and its materialisation in concrete timely and proper actions can lead to desired positive results.

The unquestionable service the Force has done to Albania and the Albanian people during perhaps the most difficult situation of their existence as a State further strengthens the legitimacy of the multinational intervention in Albania.