Memorandum submitted by Mark Littman QC
1. My view on the legal questions that arise
from the Kosovo intervention by NATO are set out in my pamphlet
"Kosovo: Law and Diplomacy" published November 1999.
2. There are two questions involved:
(1) Was there at any material time a principle
of international law that legalized forceful intervention without
Security Council authority to avert a humanitarian disaster? For
convenience I will call this "the humanitarian exception".
My views on this question are set out in my pamphlet
Chapter one ("Was It Legal?"); pages 1-7 and Appendix
one.
(2) If so, was there a factual basis for
its application in the present case?
My views on this question;, are contained in
my pamphlet Chapter two ("Was It Necessary?"), in Chapter
three ("Was It Successful") and Chapter four ("The
Cost.")
3. Since I published my pamphlet I have
received from the Committee three papers, each by a distinguished
professor of Public International Law: Professor Ian Brownlie
(7-10-99); Professor Christopher Greenwood (22-11-99); and Professor
Vaughan Lowe (undated).
4. The purpose of this supplementary memorandum
is to give to the Committee my reactions to these three papers
and to attempt an analysis of the present state of the debate.
5. Common Ground
There seems to be a number of points on which
there is no disagreement.
(1) The relevant sources of public international
law are treaties, custom and the opinion of jurists.
(2) The only relevant treaty is the
Charter of the UN which contains no provision for the humanitarian
exception but on the other hand contains no provision to exclude
it. The Charter does contain provisions for the protection of
human rights but does not contain any provision for the
use of force for this purpose, except as might be authorised by
the Security Council.
(3) It is in law possible for a humanitarian
exception to be established by custom but no such custom
had become established before recent years, it being in dispute
whether it had come into existence in recent years.
(4) The opinion of jurists was divided,
the testimony of Prof Brownlie, however, being that the balance
was overwhelmingly against the existence of the alleged exception.
(5) If such an exception exists it would
need to be subject to a number of conditions.
(6) If it does not exist, it is extremely
unlikely to be introduced in the foreseeable future by a new treaty
or amendment to the Charter as the necessary consensus is not
likely to be available.
6. Differences
Amongst the outstanding differences the following
appear to be the most important:
(1) Whether, in recent years, more particularly
in the last decade, the humanitarian exception has developed as
a customary right?
(2) Whether the introduction of a humanitarian
exception would be in the public interest?
(3) Whether, if international law on the
24 March 1999 admitted the existence of the alleged humanitarian
exception, the NATO bombing can, on the facts of the case, be
justified under that exception?
My own answer to these questions would in each
case be "NO".
I will now give some brief comments on the three
memoranda that I have recently received.
7. Professor Brownlie
I find the memo of Professor Brownlie cogent
and persuasive
8. Professor Greenwood
(1) In paragraph 32 Professor Greenwood
states that the NATO intervention raises fundamental questions
of international law. No one disputes this. This underlines the
importance of obtaining a decision from the International Court
of Justice. The ICJ is an arm of the United Nations and is by
far the best body for producing an independent decision carrying
great persuasive authority. For this reason I urge that HMG should
accept the jurisdiction of the Court in this matter. See my pamphlet
chapters 5, 6, 7 and 28.
(2) Professor Greenwood agrees with Professor
Brownlie that the UN Charter contains no provision for humanitarian
intervention and that the provision for the use of force in self
defence has no application in the present case. Greenwood paras
3-7.
9. The heart of Professor Greenwood's argument
is his appeal to customary international law in paragraphs 15-18
of his memo. He argues that a new custom has grown up in the 1990's.
Which in certain circumstances gives the right of intervention
claimed. To sustain this argument it is necessary to point to
a constant and uniform usage expressing a right. The burden of
proof is on the party asserting the existing of a new custom.
That burden must be all the greater where it seems to be in conflict
with the provisions of a Treaty such as the UN Charter.
9. Professor Greenwood cites two cases which
he says are of particular significance. One is the introduction
of no-fly zones in Northern and Southern Iraq to protect the local
population. (Paragraph 16). In a book published in 1996 ("International
Law": Martin Dixon") there is the following comment,
which seems to show that there is no general acceptance of this
case as one that gives support to the new custom.
Recently a claim of "humanitarian intervention"
appears to have been made by the United States and the UK as justification
for their maintenance of "no fly zones" in southern
and northern Iraq, the purpose of which is to protect the local
populations from the excesses of the Iraqi government. However,
while there may have been a humanitarian motive for these interferences
with Iraq's sovereignty, and while by this action they may have
achieved a humanitarian purpose, it is a far cry from accepting
that this gives rise to a right to intervene. In fact there are
other possible justifications for these no fly zones, not least
that they were a continuance of the collective security action
against Iraq duly authorised by the Security Council, and this
appears to have been more to the fore in later UK and US pronouncements
especially after the attack on Iraq in September 1996 in support
of the local Kurdish population.
The other incident cited is an intervention
by the Economic Community of West African States in Liberia in
1990. I have not as yet had the opportunity of investigating this
particular case.
10. In any event these two cases seem to
provide a very thin foundation for the proof required to establish
the alleged customary right of intervention. In this connection
I draw attention to the comments by Professor Brownlie in paragraphs
75, 76, 78, 79 and 80 of his memo.
11. I also draw attention to the fact Professor
Lowe, although in favour of there being a right of intervention
on certain strict conditions, does not allege that any customary
right had already emerged to justify the Nat action. He makes
no mention of any state practice to that effect or to either of
the cases cited by Professor Greenwood.
12. Finally, I draw attention to paragraph
72 of Professor Brownlie's memo in which he points out that the
18 writers of recognised professional standing that he has just
cited embraced 12 nationalities and include three authors who
have been President of the International Court of Justice. None
of these writers have supported the case for a new custom put
forward by Professor Greenwood.
13. Professor Greenwood makes a number of
more general points of which I will only mention one; the growing
importance of human rights to which he refers in paragraph 17
of his memo. The importance of human rights is not an innovation
so far as the Charter is concerned. It is the subject of the second
preamble and in Article 1(3) of the Charter. But at least equal
importance is attached in the Charter to the avoidance of war.
The intense feeling on this subject felt by the makers of the
Charter comes through in the wording of the very first preamble:
"We the people of the United Nations determined
to save succeeding generations from the scourge of war, which
twice in our lifetime has brought untold sorrow to mankind . .
."
The balance that the Charter seeks to make between
these two objectives deliberately does not provide for unilateral
decisions to start war as a means of securing human rights.
It is important not to be carried away by a
rhetoric in favour of civil rights by an advocacy of war. For
there is no greater destroyer of human rights than war. In the
two wars to which the Charter refers 80 million people lost their
lives, vast numbers were maimed and whole countries destroyed.
Were their human rights no the victims of war? Did the 2,000 Serb
civilians who were killed or maimed by the 24,000 bombs dropped
on them not suffer a deprivation of human rights? Did not the
whole population of Yugoslavia suffer a deprivation of human rights
by the destruction of the economy by which they earned their living?
It must be remembered that there are many steps that can be taken
within the Charter to support human rights without the unilateral
use of force: negotiation, persuasion, diplomacy, sanctions, embargoes,
the opportunity of persuading the Security Council or even the
General Assembly that force is justified.
13. Professor Vaughan Lowe
My reading of Professor Lowe's memo is that
he accepts that the bombing of Yugoslavia was unlawful under international
law as it existed on 24 March 1999. This seems to be the purport
of the first 11 pages of his memo which conclude with his summary
on page 11 of his memo:
"In summary, in my view, there was no clear
legal justification for the NSATO action in Kosovo . . ."
I have sought in the earlier pages to see whether
the word "clear" was intended as a significant qualification;
ie whether Professor Lowe thought there was a legal qualification
although lacking in certainty or clarity. However, I do not find
any such intention. It seems to me, therefore, that Professor
Lowe is to be included in the "NO" lobby.
14. It is equally clear, however, that
Professor Lowe thinks that it would be a good thing if there were
such a principle, as for example, where he follows the words just
quoted with the words:
". . . but it is desirable that such a justification
be allowed to emerge in customary international law".
Also at the top of page 11 where Professor Lowe
posits a case where "innocent people [are] being massacred"
and gives it as his opinion that "people should not refrain
from intervention in such a case because they believe themselves
to have no legal right to intervene."
15. It appears to me that the question whether
the present international law should be changed to give a right
of humanitarian intervention is not wholly or even primarily,
a legal question. It is at its heart a question of political judgment,
although it doubtless has legal aspects to it. It there is to
be such a right generally recognised it must, one would suppose
be one that, together with its conditions and modalities, would
carry the general support of the nations. Yet, in the next paragraph
Professor Lowe says that there is no point in seeking to accelerate
the process by drafting a convention on the question, the reason
being that:
"There is no reasonable prospect of consensus
on the definition; and even if it were possible to draft a text
there is no reason to suppose the States would wish to ratify
and be bound by such a convention."
16. In my view there are strong reasons
why the introduction of the humanitarian exception would not be
desirable and would in fact be against the public interest. For
example:
(1) It would almost certainly lead to more
violent conflict in the world. The new exception would be available
to any group of nations in the world with a diversity of views
on what are the important humanitarian rights. It is not to be
assumed that the views of Marxist, Fascist or Fundamentalist States
would always coincide with those of Western Democracy. There are
at any one time between 30 and 40 violent conflicts taking place
on the globe, many of which could be targets for humanitarian
interveners. One thing that can be predicated with certainty about
war is that no one can be sure what will happen or, indeed, that
it will improve the observance of civil rights. In Kosovo, for
example, ethnic cleansing has not been stopped. It has only been
reversed; the persecuted becoming the persecutors.
(2) The new exception would involve sidelining
the Security Council. For it would introduce a potentially large
class of cases where States could start wars without the authority
of the Security Council. Professor Lowe disapproves any sidelining
of the UN. He suggests, however, that this could be avoided by
restricting the new exception to cases where the Security Council
had already passed resolutions criticizing the target State but
without authorising the use of force. This might be because the
use of force might be vetoed by one or more permanent members
of the Security Council. It seems to me that this solution would
be counter-productive. For once it was established that the passing
of the non-force resolution would legally open the door to forceful
intervention, the States that were opposed to the latter would
veto the former. This might be unfortunate for the non-force resolution
might introduce other measures, short of force, which might nevertheless
be quite effective.
(3) The sidelining of the Security Council
would strike at the very heart of the United Nations and might
even destroy it. As Professor Lowe says in a powerful passage
on page 8, the Security Council is the only body charged with
world-wide responsibility for the maintenance of peace and security
and side-line it would be foolish especially at the present time
when, he says, it is beginning to prove itself. In my view, it
could not only be foolish it could be fatal to the UN for although
the UN has many other functions, for example, in the field of
education, civil rights, and economic welfare, its central function
is in the field of peace-keeping.
(4) Danger of Abuse Professor Greenwood rightly
points out that all rights carry a danger of abuse and argues
that the Foreign Office was wrong when in 1986 it gave this as
a reason for not admitting the humanitarian exception to the status
of an existing custom. In my view, the Foreign Office was right
in giving this as a factor to be taken into account. All the more
so, when as here we are considering the public policy aspect of
admitting a new custom. One recalls that when Hitler was publicly
justifying his invasions of Czechoslovakia and Poland one of his
arguments was that it was necessary to prevent the abuse of the
human rights of the ethnic Germans in those two countries.
(5) The new custom would create rights of
intervention that in practice would only be exercised by strong
States against weak States and never against nuclear powers. The
smaller nations, for whose benefit the Charter provisions against
interference with sovereign rights were largely created, would
not welcome this innovation and might well seek to find new weapons
with which they could retaliate even against large and powerful
countries.
(6) The new right of intervention with an
ethical face is bound to evoke a demand for more resources to
be used on military forces (eg the current pressure for a new
European force for purpose other than those laid down in Article
5 of the NATO Treaty.
17. Finally, I wish to refer to the factual
question, whether, assuming there was such a principle of law
on 24 March 1999 the facts at that date were such as to justify
the action that NATO took ie the dropping of 24,000 bombs on Yugoslavia.
I have addressed this question in the parts of my pamphlet mentioned
in paragraph 2(2). Since then I have come across some additional
material, which there is not time to quote in this memo, but I
will bring it with me to the Session arranged.
Mark Littman QC
3 February 2000
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