Supplementary memorandum submitted by
Mark Littman QC
Does international law recognise a principle of
forceful humanitarian intervention without Security Council authority?
1. In my previous statements I have urged that
the best way of getting this matter settled is by our dropping
any jurisdictional objection in the case now pending before the
International Court of Justice.
However, in answer to a question in the House
of Lords last week, HMG firmly stated that it intended to maintain
such an objection. The result will probably be that the Court
will not give a decision as between Yugoslavia and the UK on the
question of principle before the Committee.
There are, however, a number of unofficial tribunals
in different countries dealing with the point. Their proceedings
are reported on the internet.
2. In the course of the same discussion,
a suggestion was made that the present existence and conditions
of such a principle were not a legal question at all but a question
of politics. I disagree with this suggestion. In my view HMG was
quite right to treat it as a question of law. The alternative
is to say international law has no place in judging the legitimacy
of the use of force in the international field. Relevant utterances
by HMG are contained on page 1 of my pamphlet in which HMG rightly
accepted that the intervention could not be justified at all if
it could not be justified under international law.
3. If, as I believe, there is at present
no principle of international law of humanitarian intervention,
then the question whether the law should be changed to admit one,
is largely a political question. See paragraph of my Supplementary
Memo.
FACTUAL BASIS:
If, contrary to my contention, international
law does recognize such a principle, did the factual basis for
its application in the present case exist on 24 March 1999?
In my opinion it did not, for three reasons:
1. Alternative, peaceful, means of settlement
not exhausted
I refer to pages 8-13 of my pamphlet.
2. Force used disproportionate
As to the degree of force that was used by NATO
I refer to pages 22-26 of my pamphlet.
As to extent of human rights abuses as they
existed in the period October 1998 to 31 December 1989 I refer
to pages 13-15 of my pamphlet.
In particular I draw attention to the various
NATO statements in November 1998 that Yugoslavia was in compliance
with UNSCR 1199 and the Holbrook Agreement of 24 October 1998.
In addition to the statements referred to on page 14 of my pamphlet,
I would also refer to the Statement by Secretary Albright on 27
October 1998:
"Today the Alliance was able to report that
President Milosevic is in very substantial compliance with UNSCR
1199."
As to the period 1 January 1999 to 24 March
1999 I would refer to pages 13-15 of my pamphlet from which it
appears that, apart from Racek, the total number of Albanians
killed in Kosovo in this period was four.
Since I wrote my pamphlet I have seen on TV
the discussion in the House of Lords on the new OSCE Report published
in November 1999. From this discussion and in particular from
the contributions to it from Lord Skidelski (Conservative) and
Lord Judd (Labour) and Baroness Turner (Labour) I am confirmed
in my view that the level of abuse of civil rights in the period
October 1998 to 24 March 1999 was not sufficient to justify the
degree of force exercised by NATO after 24 March 1999.
It has been suggested that even if the scale
of human rights abuses in the period immediately prior to 24 March
1999 was not sufficient justification for the bombing, it was
justified by evidence that the Yugoslavs were about to launch
a large scale ethnic cleansing of Kosovo according to a pre-prepared
plan. This is said to be based on the existence of a plan to that
effect called "Operation Horseshoe". I made a comment
on this at page 18 of my pamphlet and included a quotation from
Louise Arbour, Chief Prosecutor of the UN Criminal Court for Yugoslavia.
I would now like to make a somewhat more complete quotation.
"As to Operation Horseshoe, I have my doubts
as to its capacity to prove anything. If it were a document with
cover, date and signature it would be fantastic. But mostly such
things (referring to documents given to her by various NATO countries)
look more like verbal descriptions and conclusions."
It does not appear in the indictment against
Milosevic.
3. Insufficient certainty that intervention
would do more good than harm
That the planned bombing would do great harm
to the Serbs is obvious. What of the ethnic Albanians?
I have already referred (pamphlet page 17) to
the NATO expectation that the bombing was likely to result in
"violent repressions" of the Albanian civilians, "horrendous
atrocities" and a campaign of ethnic cleansing but also referring
to statements by NATO spokesmen that they could not possibly have
realised how bad it would be. Since then I have been referred
to a report in the Irish Times said to emanate from Mr
Bruton in which it is said that on the very day the bombing was
due to start one view was being expressed in NATO that the bombing
might lead to one million refugees within a few days. I will furnish
the Committee with the precise reference.
On the present state of Kosovo I have found
most helpful the TV documentary by Jonathan Dimbleby and the article
by Timothy Garten Ash in the current issue of the New York Review
of Books "Anarchy and Madness in the Balkans".
I notice that Lord Jenkins, who originally supported
the war, has recently said in the House of Lords that he could
not see how the Kosovons had gained from it.
It would seem that Lord Carrington, Mr Benn,
Mr Dalyell and Mr Salmon were right in saying that the intervention
had made things worse rather than better and that this possibility
ought to have been foreseen.
Mark Littman
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