1. This memorandum is submitted in response
to a request from the Foreign Affairs Committee in connection
with its hearings on the NATO intervention in Kosovo in March
1999. The memorandum addresses the following issues of international
law:
In my opinion, the resort to force by NATO was
consistent with international law and was based upon a right of
humanitarian intervention which is applicable in a case where
there is an extreme and immediate threat of humanitarian disaster
which the use of force is designed to avert. On the basis of the
information currently available to me, I also believe that the
means employed by NATO were consistent with the law which regulates
the conduct of hostilities ("international humanitarian law").
My reasons are set out below.
2. I should state at the outset that I appeared
as counsel for the United Kingdom in the Case concerning Legality
of Use of Force brought by the Federal Republic of Yugoslavia
("FRY") against the United Kingdom in the International
Court of Justice ("ICJ"), in which the FRY sought provisional
measures directing a halt to the NATO operation. I am submitting
the present memorandum, however, in my personal capacity and not
as counsel. Since the ICJ case has not been concluded I cannot
comment on the proceedings themselves.
3. The central principle of international law
regarding the use of force is codified in Article 2(4) of the
United Nations Charter, which provides as follows:
4. Article 2(4) states one of the principles
on which the United Nations operates. It must, however, be read
in context, for the Charter also gives as one of the purposes
of the United Nations the promotion of human rights (Preamble
to the Charter and Article 1). The development of international
human rights law since 1945, through global agreements such as
the Genocide Convention and the International Covenant on Civil
and Political Rights and regional instruments such as the European
Convention on Human Rights, has reached the point where the treatment
by a State of its own population can no longer be regarded as
an internal matter. In particular, widespread and systematic violations
of human rights involving the loss of life (or threatened loss
of life) on a large scale are well established as a matter of
international concern.
5. The Charter expressly provides for two
situations in which the use of force is lawful. First, Article
51 preserves the inherent right of individual or collective self-defence
in the face of an armed attack against a State. Secondly, the
Charter provides for the use of force by the Security Council
or by a regional organization or group of States authorized to
use force by the Security Council.
6. Neither of these provisions covered the
use of force in Kosovo. Kosovo was not an independent State and
the use of force by the FRY against the population n Kosovo was
not an armed attack upon a State. The FRY did not attack any of
the NATO States or the neighbouring States of Albania or Macedonia
before the NATO operation commenced. Nor was it suggested that
the NATO operation was designed to pre-empt an imminent attack
by the FRY on another State. The NATO action cannot, therefore,
fall within the scope of the right of self-defence.
7. Nor was this a case in which the use
of force was authorized by the Security Council (in contrast,
for example to the interventions in Somalia and Haiti or the coalition
operation to free Kuwait). The three Security Council resolutions
adopted before the NATO operation began—SCR 1160 (31 March
1998), SCR 1199 (23 September 1998) and SCR 1203 (24 October 1998)—did
not expressly authorize military action.
8. That does not mean, however, that those
resolutions were irrelevant to the question of whether NATO acted
lawfully. On the contrary, they form an important part of the
legal framework within which NATO acted. The three resolutions
were adopted under Chapter VII of the Charter (which deals with
threats to peace and security) and their principal provisions
were legally binding on all States, including the FRY. They determined
that the situation in Kosovo was a threat to international peace
and security[1]
and thus could not be considered an internal matter for the FRY
alone, notwithstanding the status of Kosovo as part of the FRY.
The resolutions also established that the situation in Kosovo
involved serious violations of human rights and that there was
an impending humanitarian catastrophe well before the NATO action
began. Thus SCR 1160, adopted nearly a year before the NATO action
began, condemned the use of excessive force by the Serbian forces
as well as acts of terrorism by the KLA.[2]
SCR1199, adopted in September 1998, referred to:
9. The resolutions also imposed a number
of obligations on the FRY and the KLA, requiring, inter alia,
the withdrawal of Serbian security forces from Kosovo.[5]
These obligations were not met.
10. The United Kingdom Government consistently
took the position that the NATO action was justified on the ground
that international law recognizes a right to take military action
in a case of overwhelming humanitarian necessity.[6]
The United Kingdom Permanent Representative to the United Nations
told the Security Council on 24 March 1999 that:
Most recently, the paper by the Secretary of
State for Defence, Kosovo: An Account of the Crisis, stated:
11. This justification was thus very similar
to that put forward in respect of the interventions in northern
and southern Iraq in 1991 and 1992 to prevent further repression
of the civilian population there by the Saddam Hussein Government[9]
and more general statements, such as the reply given by Baroness
Symons of Vernham Dean to a parliamentary question on 16 November
1998, in which she stated that cases had arisen in which "a
limited use of force was justifiable in support of purposes laid
down by the Security Council but without the council's express
authorisation when that was the only means to avert an immediate
and overwhelming humanitarian catastrophe."[10]
12. To determine whether this case holds
good in international law involves the consideration of two questions:
(b) If so, were the circumstances in Kosovo
as at 24 March 1999 such that this right became applicable?
In my opinion, the answer to both questions
is "yes".
(3) Does international law recognise a right
of humanitarian intervention in cases of overwhelming humanitarian
necessity?
13. It has been argued that, because the
United Nations Charter contains a prohibition of the use of force
and no express exception for humanitarian intervention, there
can be no question of international law recognising a right of
humanitarian intervention.[11]
That is, however, to take too rigid a view of international law.
14. This approach ignores the fact that
international law in general and the United Nations Charter in
particular do not rest exclusively on the principles of non-intervention
and respect for the sovereignty of the State. The values on which
the international legal system rests also include respect for
human rights and "the dignity and worth of the human person".[12]
Upholding those rights is one of the purposes of the United Nations
and of international law. While nobody would suggest that intervention
is justified whenever a State violates human rights, international
law does not require that respect for the sovereignty and integrity
of a State must in all cases be given priority over the protection
of human rights and human life, no matter how serious the violations
of those rights perpetrated by that State.
15. Moreover, international law is not confined
to treaty texts. It includes customary international law. That
law is not static but develops through a process of State practice,
of actions and the reaction to those actions. Since 1945, that
process has seen a growing importance attached to the preservation
of human rights. Where the threat to human rights has been of
an extreme character, States have been prepared to assert a right
of humanitarian intervention as a matter of last resort. Two instances
are particularly important. First, in the summer of 1990 the Economic
Community of West African States ("ECOWAS") intervened
in Liberia in an attempt to put a stop to appalling violations
of human rights occurring in the civil war there. That action
was not mandated by the Security Council but more than two years
later the Council formally gave support to it. The ECOWAS action
met with little or no international opposition.
16. Secondly, in April 1991, the United
Kingdom, United States of America and a number of other states
intervened in northern Iraq to create "safe havens"
to enable the large numbers of refugees and displaced persons
to return home in safety. While the Security Council had earlier
condemned the Iraqi repression of the civilian population as a
threat to international peace and security in SCR 688 (1991),
that resolution was not legally binding and did not authorise
military action. In 1992 a no-fly zone was imposed in southern
Iraq to protect the civilian population there. The United Kingdom
Government defended these actions as the exercise of an exceptional
right to intervene on humanitarian grounds. These actions received
widespread international support. Moreover, with the exception
of Iraq, very few States challenged the assertion of a right of
humanitarian intervention in this case.
17. The growing importance of human rights
has been reflected in the willingness of the Security Council
in recent years to characterise the most serious violations of
human rights, in which widespread loss of life occurred or was
threatened, as a threat to international peace and security. Under
international law it is the Security Council which has the primary
responsibility for maintaining international peace and security.
That does not mean, however, that if the Security Council is unable
to take action in a particular case—for example because
of a veto, or the threat of a veto, by a permanent member of the
Council—no action is possible. As demonstrated above, States
have intervened on humanitarian grounds without the authorisation
of the Security Council in extreme cases. Furthermore, an interpretation
of international law which would forbid intervention to prevent
something as terrible as the Holocaust, unless a permanent member
could be persuaded to lift its veto, would be contrary to the
principles on which modern international law is based as well
as flying in the face of the developments of the last 50 years.
18. It has frequently been objected that
there is no consensus about the existence of a right of humanitarian
intervention or the conditions in which such a right exists. This
objection has some force in that there is undoubtedly controversy
about the existence of a right of humanitarian intervention, as
reaction to NATO's action in Kosovo has demonstrated. Nethertheless,
it is not a persuasive objection. International law does not require
unanimity amongst States, let alone amongst writers, and there
is controversy about many principles of international law. There
has always been, for example, considerable debate over whether
the right of self-defence extends to pre-emptive action in the
face of an imminent armed attack or permits military action by
a State only once it has actually been subject to attack. Yet
the practice of a majority of States (including the United Kingdom)
and considerations of common sense strongly suggest that a limited
right of anticipatory self-defence exists. In the case of humanitarian
intervention, the logic of the principles on which international
law is based and the preponderance of modern practice strongly
favours the view that such a right is part of contemporary international
law. It is noticeable that many of the expressions of opinion
hostile to the existence of a right of humanitarian intervention
predate the important practice of the 1990s, such as the Liberian
and Iraqi interventions,[13]
or are based upon extreme interpretations of what might constitute
humanitarian intervention. In practice, States have asserted a
right of humanitarian intervention only in the extreme circumstances
outlined in the previous paragraph.
19. A second objection often raised to humanitarian
intervention is that it would ve open to abuse. This is, of course,
a policy objection, rather than a reason for asserting that there
is no right of humanitarian intervention in existing law. Moreover,
it is not persuasive. All rights are capable of being abused.
The right of self-defence has undoubtedly been the subject of
abuse but it is never seriously suggested that international law
should not include the right of a State to defend itself. The
fact that a State may make an unfounded claim to intervene in
a bad case is not a sufficient reason for denying all States the
right of intervention in cases where the objective conditions
for intervention are met.
20. In my opinion modern customary international
law does not exclude all possibility of military intervention
on humanitarian grounds by States, or by an organization like
NATO. It does, however, treat the right of humanitarian intervention
as a matter of last resort and confines it to extreme cases, where
the following conditions are satisfied:
(a) that there exists—or there is an
immediate threat of—the most serious humanitarian emergency
involving large scale loss of life; and
(b) military intervention is necessary, in
that it is the only practicable means by which that loss of life
can be ended or prevented.
21. These are objective criteria and, in
determining whether they are met in any individual case, the existence
of authoritative and impartial acceptance of the existence of
an emergency and the need for military action is obviously of
great importance.
(4) Were the circumstances in Kosovo as at
24 March 1999 such that this right became applicable?
22. If one applies these criteria to the
case of Kosovo, it is clear that they were met by the time the
NATO intervention commenced. While some of the worst atrocities
in Kosovo occurred immediately after the start of the NATO campaign,
it is evident that these were the product of a campaign by the
Yugoslav forces which had been planned before the intervention
of NATO.
23. Moreover, the existence of a grave humanitarian
crisis in Kosovo had been objectively verified well before the
intervention. Thus, on 23 September 1998 the United Nations Security
Council stated that it was:
"Deeply concerned by the rapid deterioration
in the humanitarian situation throughout Kosovo, alarmed at the
impending humanitarian catastrophe (as evidenced by the report
of the United Nations Secretary-General) and emphasising the need
to prevent this from happening."
The Council also referred to the "extensive
civilian casualties" and the displacement of 230,000 people
from their homes as a result of the fighting.[14]
It repeated these expressions of concern in October 1998[15]
and in a Presidential Statement in January 1999 condemning the
massacre of civilians at the village of Racak.[16]
The Council also determined that the situation in Kosovo amounted
to a threat to international peace and security.
24. The scale of the humanitarian crisis
before the NATO intervention was also demonstrated in a briefing
given to the Security Council on 5 May 1999 by the United Nations
High Commissioner for Refugees, who explained that even before
24 March 1999 nearly half a million people from Kosovo (a quarter
of the population of the province) were either refugees in neighbouring
States or internally displaced persons.
25. In these circumstances, there was clear,
objectively verified evidence that the requirement of a grave
humanitarian emergency was met. The second requirement—that
military action offered the only practicable option for dealing
with that emergency—involves a more complex judgement. Nevertheless,
the NATO intervention occurred only after the repeated violations
by the FRY of it obligations under the Security Council resolutions,
the failure to secure an agreement at Rambouillet and Paris and
the withdrawal of the OSCE verification mission in the face of
an offensive by the FRY forces which was itself in violation of
international law.
26. It is also significant that, although
some States (notably the Russian Federation and China) were sharply
critical of the legality of the NATO action, that was not the
response of the international community as a whole. In particular,
when Russia submitted to the Security Council on 26 March 1999
a draft resolution which would have condemned the NATO action
as a breach of international law, that resolution was defeated
by 12 votes (Argentina, Bahrain, Brazil, Canada, France, Gabon,
Gambia, Malaysia, Netherlands, Slovenia, United Kingdom and United
States of America) to three (China, Russia and Namibia).
2. WERE
THE MEANS
EMPLOYED BY
NATO, ONCE THE
DECISION TO
USE FORCE
HAD BEEN
TAKEN, CONSISTENT
WITH INTERNATIONAL
LAW?
27. A separate question is whether the means
employed complied with the rules of international law applicable
to the conduct of hostilities ("international humanitarian
law"). These rules are to be found primarily in the four
Geneva Conventions of 1949 and Additional Protocol I to those
Conventions, adopted in 1977.[17]
It is not possible in a brief memorandum to detail all of those
rules. Two are, however, particularly relevant to the Kosovo campaign.
(a) Attacks must be directed at military
objectives, not at civilians or civilian objects. Civilian objects
are all objects which are not military objectives. So far as objects
are concerned, military objectives comprise "those objects
which by their nature, location, purpose or use make an effective
contribution to military action and whose total or partial destruction,
capture or neutralisation, in the circumstances ruling at the
time, offers a definite military advantage" (Additional Protocol
I, Article 52(2)).
(b) It is prohibited to carry out "an
attack which may be expected to cause incidental loss of civilian
life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete
and direct military advantage anticipated" (Additional Protocol
I, Article 51(5)(b)).
28. These standards were accepted and applied
by the United Kingdom in respect of those military operations
which involved the United Kingdom and, so far as I am aware, by
the other NATO States.
29. The application of the standards set
out above does not mean that an attack which caused civilian casualties
or damaged civilian objects was necessarily unlawful. First, while
those who plan an attack are required to take care to ensure that
the target attacked is a military objective, they can work only
with the information available to them. Accordingly, if, on the
basis of that information a target was properly judged to be a
military objective, the fact that it subsequently transpires that
it was something else does not make the attack unlawful. Secondly,
the law recognises that an attack upon a military objective may
entail "collateral" civilian casualties and damage.
That does not render the attack unlawful provided that the attack
meets the proportionality criterion set out in paragraph 27(b)
above.
30. As a matter of general principle, the
use of force for humanitarian purposes must be limited to what
is necessary and proportionate to achieving the humanitarian goals
of the operation, in this case halting the violations in Kosovo
and reversing the effects of the ethnic cleansing there so that
the refugees and displaced could return home in safety. This principle,
together with the more specific rules on targeting set out in
paragraph 27, necessarily restrict the range of what may lawfully
be attacked. They do not, however, mean that NATO action should
have been confined to Kosovo itself. Targets may miles from Kosovo
were capable of making an effective contribution to FRY military
action. It was legitimate to attack such targets so long as the
principles in paragraph 27 were respected.
31. In the absence of more detailed information
regarding specific targets it is not possible to comment further.
On the basis of the information so far made public, I believe
that the NATO operation as a whole was conducted within the limits
of international law.
CONCLUSIONS
32. The NATO operation in Kosovo raised
fundamental questions about the nature of modern international
law and the values which it is designed to protect. Since it involved
the application of a principle of last resort in circumstances
of considerable difficulty, it is not surprising that there has
been controversy about its legality. Nevertheless, I believe that
the resort to force in this case was a legitimate exercise of
the right of humanitarian intervention recognised by international
law and was consistent with the relevant Security Council resolutions.
Christoper Greenwood
22 November 1999
1 SCR 1199, penultimate paragraph of the Preamble;
SCR 1203, penultimate paragraph of the Preamble. A determination
of a threat to international peace was so implicit in SCR 1160. Back
2
Third paragraph of the Preamble. Back
3
SCR 1199, 6th paragraph of the Preamble. Back
4
SCR 1199, operative paragraph 2. Back
5
SCR 1199, operative paragraph 4. Back
6
See eg, the paper circulated by the FCO amongst NATO Member States
in October 1998 and reproduced in Roberts, "NATO's `Humanitarian
War' over Kosovo" 41 Survival (1999) 102 at 106, and
the statement by the Secretary of State for Defence in the House
of Commons on 25 March 1999. Back
7
S/PV.3988, p.12; 24 March 1999. Back
8
Page 10. Back
9
See, eg, the evidence given to this Committee by Mr A. I. Aust,
Legal Counsellor, Foreign and Commonwealth Office (HC Paper 235-iii,
p.92). Back
10
HL Debs (1998-99) WA 140, 16 November 1998. Back
11
See, eg, M Littmann, QC, Kosovo: Law and Diplomacy (Centre
for Policy Studies, 1999). Back
12
Preamble to the United Nations Charter. Back
13
The FCO Planning Staff document "Is Intervention ever Justified?",
which came to the enigmatic conclusion that "the best case
that can be made in support of humanitarian intervention is that
it cannot be said to be unambiguously illegal" (Foreign Policy
Document 148, paragraph II.22), was written in 1984, during the
Cold War and long before the Liberian and Iraqi interventions.
The document is, in any event, a discussion paper, rather than
an instance of United Kingdom State practice (see paragraph II.2.). Back
14
SCR 1199 (1998). Back
15
SCR 1203 (1998). Back
16
S/PRST/1999/2. Back
17
Protocol I is binding on the United Kingdom, which ratified it
in 1998, but not on France or the United States of America, neither
of which has become party to it. The most important principles
stated in the Protocol are, however, part of customary international
law and, as such, binding on all States. Back
