Memorandum submitted by Professor Vaughan
Lowe
INTERNATIONAL LEGAL ISSUES ARISING IN THE
KOSOVO CRISIS
As is the case in all international crises, it is
possible to identify a wide range of questions of international
law that have arisen during the course of the Kosovo crisis. Of
these, two are in my view of particular importance; and it is
with these two that this memorandum is concerned. They are (1)
the question of the right of humanitarian intervention, and (2)
the question of the selection of targets for military attack.
HUMANITARIAN INTERVENTION
The general position in international law
Kosovo was not and is not a sovereign State. The
conflict between Kosovo and Belgrade was a matter internal to
one State, the Former Republic of Yugoslavia. The NATO military
action in Kosovo, Operation Allied Force (26 March-10 June 1999),
was plainly an armed intervention in a foreign State, and an intervention
in its internal affairs. It was a prima facie breach of article
2(4) of the United Nations Charter, which prohibits "the
threat or use of force against the territorial integrity or political
independence of any State". That prohibition was reinforced
in the context of Kosovo by the legal duty of NATO (and all other)
States not to interfere in civil strife in another State. Even
in cases where the civil strife is the result of the use of force
by groups within a State in order to achieve self-determination,
the general view is that while States are certainly obliged not
to assist those using force to deny the right to self determination,
neither may States assist those who are using force to assert
the right.
As an exception to the general prohibition on
the use of force, the United Nations Charter permits the use of
force in two circumstances: first, in self-defence, and second
with the authorisation of the Security Council. Neither provided
a justification for the NATO bombing campaign. I deal with each
in turn.
The right of self-defence is set out in article
51 of the Charter, which states that
"Nothing in the present Charter shall impair
the inherent right of individual or collective self-defence if
an armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to maintain
international peace and security."
There was no element of individual or collective
self-defence on the part of the NATO States, and the character
of the NATO campaign was clearly not that of a defensive action.
The purpose of self-defence, and the limit of the right to use
force in self-defence, is the prevention of harm to the "defender"
from an armed attack. There was no "armed attack", or
anything close to an armed attack, upon a NATO State, such as
would have provided a justification for the bombing campaign under
article 51.
Proposals have been made within the North Atlantic
Assembly that the scope of the right of self-defence should be
extended to include the "defence of common interests and
values, including when the latter are threatened by humanitarian
catastrophes, crimes against humanity, and war crimes" (North
Atlantic Assembly, Resolution 283, Recasting Euro-Atlantic Security:
Toward the Washington Summit, November 1998, paragraph 15(e)).
International law does not yet extend so far; and I think that
it is unwise to seek to change international law in this direction.
It would open the door to the justification of intervention in
States for the "protection" of all manner of shared
moral, cultural and political values under the pretext of self-defence;
and as self-defence is a clear right in international law, it
would be difficult for the international community to impose effective
constraints upon its exercise.
The second exception in the UN Charter to the
prohibition on the use of force is that which permits the use
of force with the authorisation of the Security Council. States
directly and acting through regional arrangements or organisations
such as the OSCE and perhaps NATO (the doubt arises from NATO's
limited purpose as a collective self-defence arrangement, focused
on article 5 of the NATO treaty), may be utilised by the Security
Council for the maintenance of peace and security, under the terms
of articles 48 and 53 of the UN Charter. But article 53 specifically
provides that "no enforcement action shall be taken under
regional arrangements or by regional agencies without the authorisation
of the Security Council". It is clear that the non-defensive
use of armed force without the consent of the State in which it
is deployed constitutes "enforcement action". The Security
Council resolutions concerning Kosovo, however, stopped short
of authorising this use of force.
Resolution 1199 (1998), adopted by the Security
Council at its 3930th meeting on 23 September 1998, stated that
the Council had decided that "should the concrete measures
demanded in this resolution and resolution 1160 (1998) not be
taken, to consider further action and additional measures to maintain
or restore peace and stability in the region." The Security
Council was plainly asserting its continuing responsibility for
the crisis. So, too, in Resolution 1203, adopted on 24 October
1998, the Council recorded its decision to remain seised of the
matter. Neither resolution authorised military action by NATO.
Operation Allied Force cannot be justified on the basis of Security
Council authorisation.
Indeed, it is only in recent years that the
Security Council has asserted that it possesses any competence
in relation to what are, at least initially, internal disputes
within States. Article 2(7) of the UN Charter provides that "nothing
in the present Charter shall authorise the United Nations to intervene
in matters which are essentially within the domestic jurisdiction
of any State. . ." Not until the 1990's, in its responses
to the crises in Somalia, Iraq, Haiti, Rwanda and the Balkans,
did the Security Council assert that certain situations internal
to a State may be so grave as to threaten international peace
and security and accordingly engage the competence of the Council,
including its right to authorise the use of force under Chapter
VII of the UN Charter. But there was no such authorisation given
to NATO for Operation Allied Force.
The analysis of the text of the UN Charter,
therefore, yields no clear legal justification for the NATO action.
On the contrary, it suggests that the action was unlawful. The
question is whether there is any further right to use force, such
as would justify the NATO action.
NATO's justification of Operation Allied Force
The legal justification offered by NATO itself
one of some subtlety. Many commentators have suggested that international
law should admit a right to use force in another State without
the authorisation of the Security Council, when it is necessary
in order to prevent massive and grave violations of human rights.
This is what is known as the right of humanitarian intervention,
though it is a very controversial matter and few lawyers would
claim that the "right" is at present clearly established
in international law. In fact, two issues are wrapped up in the
concept of such a right. The first is the substantive question
of the criteria upon which it may be judged lawful to intervene.
The second is the procedural question of the manner in which it
is to be determined whether those criteria are met. Proponents
of the right of humanitarian intervention have tended to concentrate
on the substantive question; but the NATO justification shrewdly
locked the two issues together.
The Secretary of State for Defence, Mr Robertson
(as he then was), set out the Government's position concerning
the multinational NATO intervention in Kosovo, in a statement
made to the House of Commons on 25 March 1999:
"We are in no doubt that NATO is acting
within international law. Our legal justification rests upon the
accepted principle that force may be used in extreme circumstances
to avert a humanitarian catastrophe. Those circumstances clearly
exist in Kosovo.
The use of force in such circumstances can be
justified as an exceptional measure in support of purposes laid
down by the UN Security Council, but without the Council's express
authorisation, when that is the only means to avert an immediate
and overwhelming humanitarian catastrophe. UN Security Council
resolution 1199 clearly calls on the Yugoslav authorities to take
immediate steps to cease their repression of the Kosovar Albanians
and to enter into a meaningful dialogue, leading to a negotiated
political solution " [Cols 616-617].
That statement is a useful epitome of the position
that was, as I understand it, adopted by NATO and its member States.
The statement relies upon two elements: the
prior prescription of policies or "purposes" by the
United Nations Security Council, and the existence of an imminent
humanitarian catastrophe that can, and can only, be averted by
the use of force. It is not an assertion of a simple right of
humanitarian intervention. The crucial differences between this
approach and simple humanitarian intervention need to be emphasised.
First, the right to act is not a unilateral
right, under which each and every State may decide for itself
that intervention is warranted. The statement does not assert
that States have the right to intervene using force in circumstances
where there has been no prior determination of the gravity of
the situation by the Security Council. The prior decision of the
Security Council is asserted as a key element of the justification.
Although the Security Council had not authorised the use of force
in Kosovo, it had determined that the situation there constituted
a threat to international peace and security and so made the determination
that is the essential precondition under the UN Charter to the
authorisation of the use of force by the Security Council.
Second, it is not asserted that the right is
unlimited. The right is to take action "in support of purposes
laid down by the UN Security Council". Conversely, any action
whose objectives (in so far as they can be defined with any precision)
went beyond the Security Council's stated purposes, as set out
in its resolutions on Kosovo, would not be justified by the principle
advance by the Secretary of State. (In addition, it is clear that
the right was understood to be subject to the requirements of
proportionality and so on, which as a matter of international
law constrain all uses of force.)
Third, it is not every "purpose" of
the Security Council whose enforcement may be sought by the use
of force in this way. In the Secretary of State's statement it
was the existence of the impending humanitarian crisis, which
had itself been the subject of explicit reports to and determinations
by the Security Council (for example, in Resolution 1203), that
was said to justify the taking of action by NATO. The statement
does not assert that NATO would have been justified, in the absence
of Security Council authorisation, in taking any action at all
if there had not been an imminent humanitarian crisis.
It would be very difficult to adduce convincing
evidence that the right of intervention asserted by the Secretary
of State is already clearly established as a rule of international
law. Most international lawyers would in my view say that it is
not, and that the NATO action lacked a clear legal justification.
Indeed, at various stages of the crisis representatives of some
NATO States seem to have revealed a lack of confidence in the
legal justification. Foreign Minister Kinkel, for example, is
reported to have said that the NATO action "must not become
a precedent. As far as the Security Council monopoly on force
is concerned, we must avoid getting on a slippery slope"
Secretary of State Albright is reported to have adopted a similar
position. But if the action was lacking legal justification at
the time that it was taken, what now is the best policy? Should
the use of force in Kosovo be treated as an anomaly, demanded
by the exigencies of the situation? Or should it be treated as
an instance of an emergent and exceptional right to humanitarian
intervention?
How should international law develop?
International law is not a static system. It
can change. States may make a treaty setting out new rules to
cope with the changing demands of international life. If they
do, the States that are parties to the treaty will be bound by
the rules set out in it, but non-party States will not. It is
unlikely that there is either an international consensus on what
the law regarding humanitarian intervention should be, or even
any substantial support for the convening of a conference to seek
such a consensus. No treaty on the matter is likely within the
near future.
The alternative is for international law to
develop by changes in customary international law, which binds
all States. New rules of customary law emerge when a consistent
practice is followed or acquiesced in by States in general, with
the belief that the practice is applying a rule of law and is
not simply a matter of convenience or discretion. For a right
of humanitarian intervention to emerge it would have to be shown
that States do in fact intervene, or approve intervention by others,
and that they consider the interventions to be the exercise of
an articulated legal right of humanitarian intervention. (Like
law making in all customary law systems, this process seems to
pull itself up by its own bootstraps; but the process has been
well established in the international legal system for upwards
of two centuries). The attitude of the NATO States to Operation
Allied Force is, therefore, very important. If they assert
that the action was the exercise of a legal right, they help to
lay the foundations of a legal rule that would entitle all States
to act similarly in comparable situations.
On one view, this possibility is best avoided
because of the dangers of abuse. The NATO action should, it is
said, be regarded as an act of doubtful legality which had a clear
moral and political justification. The moral and political justifications
of the action are of course of the utmost importance. If this
memorandum appears to focus its attention elsewhere, that does
not indicate any doubt that actions such as Operation Allied
Force must ultimately have a moral justification: no State
is morally justified in forcibly intervening in another State
simply because it may be legally entitled to do so. But the purpose
of this memorandum is to explore the main issues of legal principle,
not the broader issues of morality and policy; and in that regard,
some say that it is unwise to seek to change the established principles
of law in order to accommodate one difficult moral case.
That is not a view that I share, From the legal
perspective what may appear at first sight to be wise caution
in not seeking to modify the rules on the use of force may come
on closer analysis to seem less prudent. If the Kosovo campaign
is labelled by NATO States as an action sui generis that
is not to be regarded as a precedent for future actions, it will
surely come to be regarded by other States as a precedent for
the use of force by any State in circumstances which are said
to be sui generis and not to constitute precedents for
future actions. Other States and other regional organisations
may assert a similar right to use force, without Security Council
authorisation, and perhaps in circumstances where the NATO and
the rest of the international community do not consider the use
of force to have the moral justification that the general international
toleration of Operation Allied Force suggests existed in
relation to Kosovo. One has only to recall the Soviet interventions
in Czechoslovakia and Afghanistan, and the US interventions in
Cuba and Grenada, for instance, to be able to generate examples
of such circumstances. It is in my view preferable to seek to
define with some precision the criteria that were considered to
justify the NATO action. Better to define a narrow principle and
have it invoked by others than to act on the basis of no principle
and encourage unprincipled action.
A right of humanitarian intervention?
The elements in the Secretary of State's formulation
of the principle may be set out as follows:
— prior determination by the Security
Council of a grave crisis, threatening international peace and
security;
— articulation by the Security Council
of specific policies for the resolution of the crisis, the implementation
of which can be secured or furthered by armed intervention;
— an imminent humanitarian catastrophe
which it is believed can be averted by the use of force and only
by the use of force;
— intervention by a multinational force.
Each of those elements is of the highest importance.
If the Security Council is denied a determinative
role, the only body charged with worldwide responsibility for
the maintenance of peace and security will have been consciously
excluded from the process of legitimating the use of force. The
result would almost certainly be the increasing fragmentation
of the international community into regional groupings; and at
a time when old groupings are breaking up and new ones being formed,
and the old balances of power between States are in a state of
flux the outcome of any such fragmentation is not predictable.
While some may argue that, on the basis of a simple head-count,
the 19 NATO democracies ought to be better placed to legitimate
the use of force than the 15 States, of mixed political complexions,
that happen to be in the Security Council at any given time, the
unique authority of the Security Council as the guardian of peace
and security on behalf of the entire international community cannot
be denied. The Security Council began to be a credible body in
the 1990s: it would be foolish to consign it to the sidelines
at the very time that it is beginning to prove itself able to
work out ways of discharging its responsibilities.
The limitation of the action to the purposes
set by the Security Council reflects the acknowledgement of the
primacy of the responsibility of the Council for the maintenance
of peace and security, and emphasises that the action is undertaken
not for the benefit of, or as a unilateral exercise of the individual
rights of, the intervening States but rather is action taken on
behalf of the international community. The practice of prompt
and frequent reporting to the Security Council on action taken
underlines this aspect of the justification, and offers a valuable
alternative to the more cumbersome device of "dual control"
of military operations by the intervening States and the Security
Council. The delays and difficulties in implementing dual controls
during the Bosnian crisis were widely considered to have compromised
the effectiveness of military action. Reporting acknowledges that
the interveners are answerable to the Security Council, itself
acting on behalf of the international community, for their actions.
The requirement that there be an imminent humanitarian
catastrophe is also important. It is the acknowledgement of the
need for some exceptional factor to justify States in acting without
waiting for Security Council authorisation. It provides the moral
justification for unilateral intervention. The requirement is,
however, beset by difficulties. Most obviously, in order that
the scale and imminence of the catastrophe be clearly established,
the criterion itself requires States to stand to one side in the
early stages of conflict while grave violations of human rights
occur. States will be asked how many people must die before action
is justified (though numbers cannot be the only factor: the duration,
methods and targets of the violence, and the clarity of the evidence
implicating the authorities of the target State, must also be
taken into account). States will be asked why they have not intervened
in the instant case while they did in another. Those questions
are poignant, and it is difficult to frame an answer that will
satisfy critics. But that is because the criterion is a difficult
one, not because the criterion is wrong.
The prohibitions on the threat or use of force
against another State and on intervention in their domestic affairs
are essential to the maintenance of the sovereignty and independence
of States. Without them, the right of each State to choose its
political, economic and cultural systems could not be maintained.
The use of force in international relations, without the consent
of the State in which it is used and without the authorisation
of the one body that the international community has empowered
to authorise uses of force, should not be undertaken except in
the most exceptional cases. Internal disorder and civil war do
not of themselves warrant outside intervention. If they did, the
right of governments to tackle internal disorder, and of people
to determine their own future free of outside interference would
be sacrificed. Regional powers could assert a right to impose
their own solutions whenever they considered there to have been
repression or a breach of human rights within a State. Difficult
and uncomfortable as it might be, it is in my view correct to
insist that States do stand aside while violence occurs within
another State, until it reaches a point where the scale of the
violence demands that the principles on the use of force and on
the sovereign equality of States be overridden by exceptional
rights of intervention.
It is also important not to lose sight of the
importance of persisting with the search for a negotiated solution,
and of the need to keep the role of intervention clear. If the
purpose of intervention is to induce, or compel, the authorities
in the target State to accept the terms of a particular "peaceful"
settlement, the military action would, or at least should, have
a character different from that which it would have if the purpose
of the intervention is to impose a military solution.
While it is not made explicit in the part of
the Secretary of State's statement quoted above, it must be remembered
that the NATO action was multinational, and taken within a diplomatic
matrix including NATO, the OSCE, and the UN. While it may be easy
for States to remain silent in the face of threatened intervention
by a powerful State in a region, actual participation in the intervention
is a very different matter, unlikely to be undertaken unless the
intervention is considered to be justified. Confining the precedent
to multilateral humanitarian intervention offers a further (albeit
fallible) safeguard against the use of humanitarian intervention
as a cloak for oppressive intervention by regional superpowers.
I think it desirable that a right of humanitarian
intervention, within the limits described above, be allowed or
encouraged to develop in customary international law.
No-one, no State should be driven by the abstract
and artificial concepts of State sovereignty to watch innocent
people being massacred, refraining from intervention because they
believe themselves to have no legal right to intervene. If armed
forces are not used in these circumstances, one wonders what point
there is in maintaining them.
There is little point in seeking to accelerate
the process by drafting a convention on the question. As was remarked
above, 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 that States would wish to ratify and become bound by
such a convention. Moreover, the international community is at
the early stages of developing multilateral mechanisms for responding
to humanitarian crises. A convention at this time might arrest
the development of thinking and practice in this field. It is
preferable to allow experience to accumulate, and to reflect upon
its lessons, allowing the emergence of the right in customary
international law.
In summary, in my view there was no clear legal
justification for the NATO action in Kosovo, but it is desirable
that such a justification be allowed to emerge in customary international
law. That justification should be limited by the criteria adopted
in the Secretary of State's statement to the House of Commons
on 25 March 1999.
TARGETING
The second major issue arising from the Kosovo
crisis is the question of the selection of military targets. The
deliberate targeting of certain facilities, such as broadcasting
stations, bridges and electricity supply facilities, has been
criticised and alleged to violate the limitations imposed by international
law upon the conduct of hostilities.
The basic principle of international law is
clear. It is conveniently expressed in article 52 of Additional
Protocol I (1977) to the 1949 Geneva Conventions:
"Article 52—General Protection of
civilian objects
1. Civilian objects shall not be the object
of attack or of reprisals. Civilian objects are all objects which
are not military objectives as defined in paragraph two.
2. Attacks shall be limited strictly to military
objectives. In so far as objects are concerned, military objectives
are limited to 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.
3. In case of doubt whether an object which
is normally dedicated to civilian purposes, such as a place of
worship, a house or other dwelling or a school, is being used
to make an effective contribution to military action, it shall
be presumed not to be so used."
Contemporary welfare admits of no clear distinction
between civilian and military targets. Practically all factories
can, no doubt, be turned to the manufacture of some item of equipment
useful for the armed forces. Petrol, food and clothing are as
essential for armed forces as for the rest of the population.
With the exception of hospitals, places of worship and education,
and cultural sites (as long as they have not been diverted for
military use), practically all other facilities in a modern State
are dual-use facilities, as valuable to the armed forces as to
civilians.
The use of broadcasting facilities for the transmission
of military information, for example, clearly marks those facilities
out as legitimate military objectives, even though they may appear
to be civilian facilities. But even when they are transmitting
only, or primarily, to civilian audiences, broadcasting stations
can play a powerful role in promoting or sustaining the war effort.
It is, for example, notable that the earliest targets in any armed
coup usually include broadcasting studios. Control of the media
is an indispensable element in control of the State. If it could
be shown that the studios in the former Yugoslavia were making
a contribution to the war effort, by inciting continued violence
against ethnic Albanians in Kosovo for example, that would open
up the possibility that attacks upon them were justified. If it
could be shown that fewer deaths, less injury and less damage
would be caused by attacking them than by allowing them to continue
to make their contribution to the war effort, the attacks would
be justifiable as a matter of international law. This reasoning
is, however, problematic.
It may be difficult to justify attacks on such
facilities without compromising sources of secret intelligence.
It may be even harder to explain targeting strategy by publicising
intended targets and the reasons for their inclusion on the list
without compromising the effectiveness of the military operation.
And there is no way in which speculation on net savings in terms
of lives and damage can be proved correct or incorrect. Nor is
there any practical way of quantifying suffering. What weight,
for instance, should be put on the additional terror caused by
taking the war beyond Kosovo to suburban Yugoslavia? What weight
does one attach to the pressure that one supposes was brought
to bear on the Milosevic government by bombing bridges or cutting
electricity supplies?
These points are made in order to establish
a broader point. Whatever the legal limitations upon targeting,
as long as it remains legitimate to target facilities that make
a contribution to the war effort it is practically impossible
to improve upon the existing formulation of the legal principle
set out in article 52 of Additional Protocol I. The problems arise
not from the law, but rather from the making of factual judgements
in concrete cases on the application of a perfectly clear rule,
often on the basis of dated and incomplete information, to the
facts.
If force is to be used at all, there must surely
be a common interest in using as little force as is possible to
achieve the objectives set. Put another way, the common objective
must be to use force as effectively and efficiently as possible.
Pursuit of that objective will often, perhaps usually, be enough
to ensure that targets that make no contribution to military action
are not attacked. However, in circumstances where one of the aims
of military action is to overthrow an incumbent government, not
by defeating it militarily but by inducing the population of the
State to rise up against it, these constraints may not be effective.
It might be thought that a popular uprising can be provoked by
making life for the population difficult and unpleasant, in the
hope that the population will blame the government of the State
for their problems. If that were so, the military objectives themselves
would inevitably tend to undermine attempts to distinguish between
military and non-military targets. (I am not asserting that this
was necessarily the case in the Kosovo action. The point is made
in order to address a widespread popular concern that stemmed,
no doubt, largely from the fact that news coverage showed a good
deal of destruction of what many think of as ordinary urban facilities
and much less of the destruction of the tanks and rockets that
are the popular epitomes of military targets.)
The thinking behind the strategy of seeking
to displace foreign regimes by inducing popular uprisings is no
doubt complex. One element may be the thought that a popular uprising
is likely to avoid creating a power vacuum in the State. Another
may be the thought that compared with a direct military attack
on the foreign regime, it is more consistent with international
law duties of non-intervention and rights of self-determination,
than is a direct military attack on the regime itself. In any
event, it is a strategy that would benefit from open debate. I
do not believe that international law can dispel the suspicion
of confusion over the legitimacy of targets in the context of
such a strategy. It is fundamentally a problem demanding the explanation
of the moral, political, and military justifications for the selection
of targets.
CONCLUDING REMARKS
It is likely that many specific difficulties
in the detailed application of international law arose during
the Kosovo crisis. Some of those may have caused serious operational
difficulties. Such specific matters may, indeed, have a practical
importance as great as the broader principles discussed in this
memorandum. For example, the definition and implementation of
rights to visit and search foreign ships bound for the coasts
of a State against which force is being used is an area that has
caused difficulties in past conflicts, in the Gulf and elsewhere,
that have not yet been resolved. It would be paradoxical, for
instance, if oil tankers were allowed to deliver cargoes bound
for the former Yugoslavia at a time when NATO was bombing refineries
in order to cut off oil supplies. No doubt the lawyers in the
armed services have been asked to make a submission on these operational
issues. I do not discuss them here; but they deserve the most
serious consideration.
Vaughan Lowe
Chichele Professor of Public International Law
University of Oxford
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