474 Between Yesterday and Tomorrow (1914– )arose out of repressive acts by the Serbian government in the province of
Kosovo, which was largely inhabited by ethnic Albanians. An escalation of
the repression in 1998– 99 brought a reaction from Western governments,
which attempted to broker a settlement. When that proved fruitless, and the
atrocities continued, the NATO states embarked on an aerial bombing cam-
paign to compel the Serbian government to stop its repressive actions and to
accord the province a high degree of autonomy. Th is NATO operation did
not have the approval of the UN Security Council (since it was clear that the
Rus sian government was prepared to exercise its veto to prevent it). For a
legal justifi cation, some of the NATO governments invoked a right of hu-
manitarian intervention instead.
Th e Serbian government attempted to bring a legal challenge in the World
Court against the lawfulness of the NATO action. In the very midst of the
bombing, it hurriedly made a declaration of ac cep tance of the Court’s juris-
diction under the Optional Clause. It then immediately lodged a complaint
against the NATO states for violation of the law prohibiting the use of
armed force. Its most immediate request was for an emergency Court order
to the NATO countries to halt the bombing. Th e Court declined to issue the
order, on the ground that Serbia’s Optional Clause declaration granted ju-
risdiction only over disputes “arising... aft er the signature of the [Optional
Clause] Declaration.” Although some of the bombing activity did take place
aft er the Serbian declaration was fi led, the dispute was held by the Court to
have “arisen,” in legal terms, at the time that the bombing campaign
commenced— which was prior to the fi ling of the Serbian declaration.
Later, in 2004, the action was defi nitively dismissed by the Court, but on a
diff erent ground: that Serbia was not a UN member state at the relevant
time, and consequently that it was not a party to the World Court’s Statute.
For that reason, the Court had no jurisdiction to hear the claim. As a re-
sult, humanitarian intervention remained a live issue into the twenty- fi rst
century, with a judicial pronouncement on the subject still anxiously
awaited.
Th e Backlash against International Criminal Courts
One of the striking features of international criminal courts— as distinct
from national ones— is that they do not recognize immunities for any gov-