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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