Select Committee on Foreign Affairs Minutes of Evidence

Supplementary memorandum submitted by Professor Christopher Greenwood

1.  To what extent will the Kosovo campaign itself be a precedent for the development of customary international law?

  Everything that States do constitutes a precedent for the future, because the nature of customary international law is that it is derived from State practice and the assertion by States of a legal right or their acknowledgement of a legal obligation. The questions are: (a) what will it be a precedent for? And (b) how much weight will it have?

    (a)  The actions of the United Kingdom in Kosovo are undoubtedly a precedent for the development of a right of humanitarian intervention in extreme cases. In intervening in Kosovo, the United Kingdom made clear (see, eg the statement by Sir Jeremy Greenstock in the United Nations Security Council)[23] that it was asserting such a right. It is important that the legal basis for action should be precisely identified in this way, since it makes the precedent much clearer than would otherwise be the case;

    (b)  This precedent will have considerable weight because it involves the acts of a large group of States (19) and is accompanied by a positive reaction on the part of most of the international community (eg in the vote in the Security Council).

  For the reasons which I gave in my first memorandum and in oral evidence, I believe that a right of humanitarian intervention in extreme cases is already part of customary international law. On this analysis, the effect of the Kosovo precedent is to strengthen that right. However, even those who, like Professor Lowe, have argued that such a right does not yet form part of international law are likely to consider that the effect of the Kosovo precedent is to make it more likely that that right will become established.

2.  Could objective criteria be devised which would establish without doubt when humanitarian intervention was justifiable and when it was not? What rules should govern such an intervention?

  I doubt that a set of criteria could be fashioned which would establish "without doubt" when humanitarian intervention was justified. An attempt to do so would probably only meet with the kind of frustration that has accompanied, eg the search for an international definition of terrorism. Moreover, there is a danger that rigid criteria will stifle the ability to respond to crises of a different character from those envisaged at the time the criteria were constructed.

  Nevertheless, I think a number of fairly clear principles have emerged which serve to limit the right of humanitarian action. First, no State has suggested that this right exists except where there is a real humanitarian emergency, involving the large-scale loss of life or the threat of such a loss of life. Secondly, there is general agreement that if possible intervention should be with the authority of the Security Council and that a right of action without such authority exists only where the veto or threat of a veto prevents the Council from taking such action. Thirdly, the existence of an "impending humanitarian catastrophe" should be capable of objective verification. It was of great importance that in the Kosovo case the Security Council had determined that the situation in Kosovo involved such a catastrophe (Security Council Resolutions 1199 and 1203 quoted in paragraph 23 of my first memorandum) and that the situation there constituted a threat to international peace and security.

3.  How can a forcible intervention be limited to humanitarian objectives?

  If intervention ceases to be limited to humanitarian objectives, then it becomes illegal. It is then a matter of enforcing international law against the intervenors. Enforcement of international law is never easy. Indeed, that is, in one sense, what humanitarian intervention is all about, since the conditions for humanitarian intervention will exist only where a government has been guilty of gross violations of that part of international law which deals with human rights.

  I do not believe that it is possible to make the law "fail-safe" in this, or in any other, area. There is inevitably a risk of abuse, as there is in English law. That risk has to be set against what I regard as the far greater risks of prohibiting intervention and requiring States to stand back and watch when a State embarks upon a programme of ethnic cleansing or, as in Rwanda, of genocide (which is itself a clear abuse of that State's sovereignty).

4.  In what circumstances could the bombing of the Chinese Embassy buildings have been lawful?

  The only circumstance which occurs to me would be if the Embassy buildings were themselves being used for military purposes in support of the Federal Republic of Yugoslavia armed forces. I have never heard any suggestion that that was the case.

  If one accepts that the attack on the Embassy was the result of a mistake about the identity of the building (and I can see no reason to doubt it, given that a deliberate attack on the Embassy would have served no useful purpose and done much political damage), then the United States was responsible under international law for the action and had a duty to pay compensation. I understand that it has in fact paid over US$25 million in compensation.

  That does not, however, mean that any individual is guilty of a war crime. Those who carried out the attack fired at the target they were told to attack and would have had no means of knowing that it had been wrongly identified. Only if someone who was responsible for ordering the attack had been negligent in identifying the target would there be any question of criminal responsibility.

5.  Professor Brownlie has written that "the massive air campaign was originally planned in August 1998 for the purposes of general coercion and in order to force Yugoslavia to accept NATO demands". The use of force was also threatened against Yugoslavia in an effort to secure its support for the Rambouillet Agreement. However, Article 52 of the 1969 Vienna Convention on the Law of Treaties states that "a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations". Even if the Belgrade authorities had accepted the Rambouillet agreement, would its acceptance not have been voidable as a result of the element of coercion?

  No. First, I do not accept Professor Brownlie's account of the facts. Secondly, even if that account were accurate, he still begs the question. A treaty is void on the ground of duress only if the force threatened is "in violation of the principles of international law embodied in the Charter of the United Nations". As I explained in my earlier memorandum, the use of force in Kosovo in March 1999 was not contrary to those principles. It follows that the threat to use force for the same humanitarian ends would not have been unlawful either. Finally, Professor Brownlie's thesis would have the effect of annulling virtually every peace treaty of modern times. There is no indication that the international community applies Article 52 in that way and there are excellent reasons, of principle and policy, why it should not do so.

6.  Do you believe that it is either conceivable or desirable that the legality of NATO actions will be subject to the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia?

  The ICTY has jurisdiction only in respect of grave breaches of the 1949 Geneva Conventions, war crimes, crimes against humanity and genocide. Its jurisdiction is also confined to individuals; it does not have jurisdiction over States or organisations. It would not, therefore, have jurisdiction to determine whether NATO acted lawfully in intervening in the Federal Republic of Yugoslavia. Nor, in my view, is it desirable that it should be given such a jurisdiction. Whether or not the NATO intervention was lawful is not a legal issue well suited to being considered incidental to criminal proceedings against an individual.

  The ICTY does, however, have jurisdiction over individual personnel in the NATO States in respect of charges relating to the conduct of the intervention (as opposed to the actual decision to intervene itself). I am not aware of what evidence, if any, has been sent to the Prosecutor but at present she has not brought charges against any NATO personnel.

7.  If Montenegro were to declare its independence, what would be the legal status of the Federal Republic of Yugoslavia and, in turn, of Kosovo within the Federal Republic of Yugoslavia?

  A declaration of independence by Montenegro would not, of itself, have any effect on the status of the Federal Republic of Yugoslavia or Kosovo. If there were to be such a declaration of independence, the United Kingdom and the other EU States would have to consider whether Montenegro met the criteria for recognition laid down by the EU at the time of the original break up of the old Yugoslavia in 1991 and subsequently applied to Bosnia-Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia and Slovenia. The United Nations would also have to consider whether to admit Montenegro as a Member State.

  If Montenegro succeeded in establishing its independence, then either the Federal Republic of Yugoslavia would cease to exist (as the old Socialist Federal Republic of Yugoslavia ceased to exist after the events of 1991-92), leaving two successor States (Serbia and Montenegro), or Serbia would be regarded as the continuation of the Federal Republic of Yugoslavia and Montenegro as a new State. The distinction is important for such matters as succession to treaties and membership of international organisations. In either case, however, there would be no automatic effect on the status of Kosovo as a province within Serbia. Any change to that status would come about as a separate process, presumably under United Nations auspices since the United Nations has taken responsibility for the government of Kosovo following the adoption of Security Council Resolution 1244 on 10 June 1999.

23   Quoted in paragraph 10 of my original memorandum. Back

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