Examination of Witnesses (Questions 300
- 319)
TUESDAY 8 FEBRUARY 2000
MR MARK
LITTMAN, QC, PROFESSOR
CHRISTOPHER GREENWOOD,
QC AND PROFESSOR
VAUGHAN LOWE
300. If, at the point when the peaceful intervention
was manifestly not working, and if it be your contention that
in every case prior approval of the Security Council is needed
before any intervention, this means in practice that in the many
cases the international community would have to stand on the sidelines
of a country at a time when the most awful humanitarian violations
were taking place and be unable to do anything.
(Mr Littman) What they could do is to use the wide
range of peaceful methods which are open to them by negotiation,
by economic sanctions, by embargoes, matters of that kind. They
could use the whole of the moral resources and the peaceful resources
of the United Nations, which is the only structure in the world
which we have for this purpose. If the use of force is properly
vetoed on the Security Council in the sense that it is legally
vetoed by people who have the right to veto it, that is the position.
301. Even if that veto is for extraneous, capricious
reasons as in relation to UNPREDEP? Your contention is
that only embargoes and sanctions, as in the case of Yugoslavia,
would be appropriate and in the face of the most extreme humanitarian
excesses the international community would still not be able to
use force?
(Mr Littman) In the second supplementary memorandum
which I put in yesterday, I gave my reason for thinking not only
that it was not a principle of international law that unilateral
force could be used in such a case without the Security Council,
but it would be contrary to public policy if it were. Would you
allow me to remind you very briefly of my reasons for thinking
that?
302. Briefly, if you would.
(Mr Littman) The first reason is that I think it will
lead to more war. The dominant motive, but not the only motive,
for the Charter of the United Nations which is so essential to
us is to reduce the possibility of wars such as have been experienced
in the previous 30 years prior to the Charter, where some 80 million
people were killed.
303. That was a matter of judgment and prudential
reason rather than in itself a principle?
(Mr Littman) Absolutely. I am addressing the question
whether, assuming there is no such principle, it would be a good
thing to have one. That, I agree, is not a question of law primarily;
it is a question of politics, judgment and public policy for these
reasons I am putting forward. That is one reason. The danger of
there being an increase in the volume of violent conflict in the
world is emphasised by the fact that, according to the material
that I have seen, there are at any one time and have been in the
last decade something like 30 or 40 armed conflicts going on in
the world, in most of which issues of human rights can be said
to have arisen. The second reason is one of the reasons that the
Foreign Office gave for rejecting the principle which was that
the principle was likely to be abused. Many of us remember that
in the case of both Czechoslovakia and Poland Hitler used as one
of his main reasons for justifying his invasion that the German
minority in those two countries was suffering an abuse of its
human rights. I agree with what one of my colleagues here has
said in their paper. I agree that all rights in the field of international
law can be abused but it seems to me that the Foreign Office was
right in saying it is a very material factor to be taken into
account.
304. That is an absolutist view. You are saying
that even in the most extreme cases the danger of precedent and
abuse should rule out intervention.
(Mr Littman) I am saying that because of the danger
of abuse this principle should not be adopted and that the balance
of public interest is against it. A third reason I give is that
it is something which will only be used by powerful nations against
smaller nations and never against a nation which has the nuclear
weapon. I think this is likely to be resented by smaller nations
and might drive them to seek to develop weapons to which even
the most powerful nations in the world would be vulnerable.
305. That is again a prudential reason rather
than a legal reason.
(Mr Littman) These are reasons of policy for not having
the principle. The reason I am developing this is that I think,
on the legal front, a number of people—and I think this
is the position of Professor Vaughan Lowe—would like to
see such a principle but they recognise there are at least difficulties
in saying that such a principle has now been established. There
are some other reasons which I have developed in my paper.
Ms Abbott
306. The problem I have had with this all along
is that I can see the argument that it would be desirable to have
a legal right of humanitarian intervention, but it is not wholly
clear to me that there is now a legal right of humanitarian intervention.
The position of the British government in evidence to the Committee
was that military intervention would normally be based on a Security
Council resolution but "there may also be cases of overwhelming
humanitarian necessity where, in the light of all the circumstances,
the limited use of force is justifiable to avert humanitarian
catastrophe". What I would like to ask Professor Vaughan
Lowe is what is the statement you agree with? Is this actually
a statement of law?
(Professor Lowe) They did not use the words "legal
right" in the bit you read out; they used the word "right",
which makes it difficult to argue with.
307. Is it a statement of law? I am trying to
get back to what does the law say rather than what do we want
the law to say.
(Professor Lowe) I think your representation is right.
There is as yet no established right of humanitarian intervention
in international law. I am one of the people who thinks that there
should be.
308. I am glad we have made that distinction.
There is no right, but you are arguing there should be. It could
be that the Committee might agree with you. I think it is important
to establish that there is no right of humanitarian intervention
but, Professor Greenwood, do you believe that as the law presently
stands there is a legal right of humanitarian intervention?
(Professor Greenwood) I certainly do believe that
there is a legal right of humanitarian intervention as the law
stands. I would also strongly disagree with Mr Littman in terms
of the policy question that underlies it. It seems to me that
there is an extremely powerful policy case to be made for intervention
in extreme cases like this.
309. The point I want to stress—and this
is why we have a particular session on the legal side—is
that there are two threads to this argument. One is the desirability
of a right of humanitarian intervention and one is whether one
actually exists now. You are saying there is. How do you explain
that? Where does it lie?
(Professor Greenwood) It lies, in my opinion, in customary
international law. It evolved on the basis of state practice but
it is state practice which has taken place largely in the space
of the last ten years for this very practical reason. A central
element in the legal right and the way in which that right was
presented by British ministers is that the Security Council here
have identified that there was a serious threat to international
peace, that there was an impending humanitarian catastrophe. Those
words I think are taken verbatim from resolution 1199. You would
not have had that type of practice back in the 1970s and 1980s
because the Security Council simply was not in a position to take
decisions of that kind. All of this has been unlocked since the
end of the Cold War. If you look at the cases of state practice,
you find there are quite a number of them in the last ten years.
It is not just the powerful states. You have the west African
countries'—
Chairman
310. ECOWAS.
(Professor Greenwood)—intervention in Liberia.
With the greatest of respect, nobody would suggest that any of
the ECOWAS players were the major military powers of the world.
You have the intervention first in northern Iraq in the late spring
of 1991; then the intervention in southern Iraq, the no fly zone,
in 1992, this time by the British, the Americans, the French and
the Dutch. That of course was justified on the basis of humanitarian
intervention. Then we can see what sort of reaction those claims
got. If the law was as straightforward as Mr Littman and Professor
Brownlie have suggested, I would expect to find an overwhelming
chorus of disapproval of state practice and it is not there.
Ms Abbott
311. What you are saying is because states have
been doing it that makes it legal.
(Professor Greenwood) That is how customary international
law develops, yes.
Dr Starkey
312. Is it not just that states have done it
but that states have done it and the international community at
large has not put its hand up and said, "This is appalling"?
(Professor Greenwood) Yes. With state practice, you
have to look at a number of different strands. You have to look
at what is done, at the justifications put forward for that and
at the reaction of other states to it, which is why it is quite
striking in the case of Kosovo that, when the matter went to the
Security Council a few days after the intervention started, when
the Russians put down a proposal to condemn the NATO action as
illegal, it was defeated by 12 votes to three. It is not a case
of the British, the Americans and the French having to rely upon
a veto or the NATO members that are on the Security Council blocking
something. You have a very solid chorus of opposition to that
Russian motion from states in the third world, states that were
not in any way directly involved in this operation.
Mr Illsley
313. Do you think we are missing an opportunity
to clarify a form for the precedent in objecting to the International
Court of Justice case and the procedural motion rather than arguing
the whole principle there and then, or is that precedent not necessary?
(Professor Greenwood) I am sorry; I am in considerable
difficulty about this because I am one of the counsel in the case
in the International Court. I am not therefore allowed to deal
with the ongoing proceedings.
Sir John Stanley
314. I would like to ask a question to each
of our three witnesses, please, and that is the relationship as
they see it legally between the use of force by NATO in Kosovo
and the UN Charter. The Committee is aware that there is a general
prohibition under the UN Charter on the use of force. The Committee
is also aware that there are certainly at least two exceptions
in the Charter to it, the exception provided in Article 42 in
which the Security Council is authorised to use force "to
maintain or restore international peace and security", and
the exception in Article 51 which recognises the right of self-defence.
However, the key general prohibition on the use of force in most
circumstances is of course enshrined in Article 2.4 which reads:
"All members shall refrain in their international relations
from the threat or use of force against the territorial integrity
or political independence of any state or in any other manner
inconsistent with the purposes of the United Nations". The
question I would like each of our three witnesses to answer is
whether they take the view that the use of force by NATO in Kosovo
was in breach or not of the UN Charter.
(Mr Littman) In my opinion, it plainly was in breach.
I have no doubt at all upon the true construction of the Charter
and this is supported by a vast range of authorities cited by
Professor Brownlie, citations going back 30 or 40 years, which
include three former Presidents of the International Court of
Justice at The Hague. The effect of the Charter is that the only
occasions on which force is permitted to resolve disputes between
states is either in self-defence—that means individual or
collective self-defence—or upon the authority of the Security
Council, neither of which applied here.
(Professor Lowe) It is a breach of the Charter as
it was drafted more than half a century ago but it is consonant
with the way that international customary law is developing at
the moment. There is no clear moment in time at which it can be
said that the rule of customary law has emerged. There is very
much less between Professor Greenwood and me than might be supposed
on this matter, in terms of the appraisal of the legality of it.
I think international law is plainly moving in the direction of
supporting limited humanitarian intervention. I do not think it
has got there yet. The difference between us is over the weight
that we attach to the limited number of episodes in the short
period of time that we have seen so far.
(Professor Greenwood) I think one has to read Article
2.4, which was drafted more than 50 years ago, in the light of
the way that the law and practice have evolved since. For example,
Article 51 of the Charter on self-defence preserves the right
of self-defence if an armed attack occurs against a Member State.
For more than 30 years, it has been the almost universal practice
of states, supported by a majority of the scholars who write on
this area, to describe that provision as encompassing a right
of anticipatory self-defence where a state believes that it is
about to be subject to an imminent armed attack. That, for example,
has been the position of this country since longer than I can
remember. Article 2.4 has to be read in the same sort of way.
If one looks at a use of force that is designed to prevent very
large scale loss of life—we are not talking here about the
use of force to deal with every day violations of human rights;
we are looking at the use of force to try and prevent the most
serious human rights abuses of them all—in those circumstances,
I cannot see that that is inconsistent with the purposes of the
UN. If it is used in such a way as to deal with a human rights
emergency but not in order to make territorial gains at the expense
of another state, I do not see it myself as being a use of force
contrary to the territorial integrity or political independence
of the state. Nobody would suggest today that Yugoslavia's political
independence includes an independent right to massacre a large
proportion of its own population.
315. I have a further one flowing from that
which we have briefly touched on in Mr Littman's earlier remarks.
I think Professor Lowe also made a brief reference to it. This
is a very important point on which it would be helpful to have
a view from all three of you. Do you believe that it would be
desirable in international law terms that a clear right of intervention
within a sovereign state should be created on extreme humanitarian
need grounds?
(Mr Littman) May I enquire whether that is without
the authority of the Security Council?
316. With the authority of the United Nations.
(Mr Littman) With the authority of the Security Council?
Under the Charter of the United Nations, the Security Council
can authorise the use of force in certain circumstances. I have
not been addressing myself to that question. It may cover the
case which has been put to me. What we are here dealing with is
a case which was admittedly without the authority of the Security
Council. What I am concerned about is the existence of a principle
other than arising in self-defence that force can be used without
the authority of the Security Council. On that, for the reasons
I gave earlier on and some additional reasons, if I could just
give you the reference briefly, I do not think it would be at
all a good idea to have such a principle. Here I venture to disagree
with my colleague, Professor Lowe. I have mentioned certain reasons
and I would like to add a couple of others. They are referred
to in my first supplementary memorandum at paragraph 16. "In
my view there are strong reasons why the introduction of the humanitarian
exception . . .". Ms Abbott, this is the second question
which you were putting on one side for the moment. I would like
to perhaps just reinforce my view on that because I think it is
assumed by a lot of people, who defend the decision in the present
case, that it is desirable there should be such a principle. I
agree it is an entirely separate question. I have already referred
to the danger that it would lead to more violent conflict. In
support of that I do argue that one thing that can be predicated
with certainty by 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."
The second reason I give that I have not mentioned yet is that
it would involve the sidelining of 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 United Nations.
He suggests however that this could be avoided by restricting
the new exception to cases where the Security Council had already
passed resolutions criticising the target state but without authorising
the use of force. This might be, for example, because the use
of force might be vetoed by one or more permanent members of the
Security Council for whatever reason, good or bad. 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.
My third reason I have not mentioned yet but it is perhaps the
most important. "The sidelining of the Security Council would
strike at the very heart of the United Nations and might even
destroy it, in my opinion. As Professor Lowe says in a powerful
passage on page eight, the Security Council is the only body charged
with worldwide responsibility for the maintenance of peace and
security and to sideline 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
United Nations for although the United Nations has many other
functions—for example, in the field of education, civil
rights and economic welfare—its central function is . .
." undoubtedly in the field of the maintenance of peace.
317. Could Professor Greenwood and Professor
Lowe reply to my original question? Could they also reply to the
two alternatives which have now emerged? Do you believe there
should be a right created in international law of humanitarian
intervention within a sovereign state, both with the authority
of the Security Council and without the authority of the Security
Council?
(Professor Greenwood) So far as the intervention with
the authority of the Security Council is concerned, that I think
is unequivocally part of international law today. It does not
require any further reinforcement as a proposition of law. The
Security Council, for example, has authorised military intervention
in the last ten years in Somalia, in Haiti and eventually in Liberia
after the initial action in East Timor. That I think is a point
of common ground between the three of us. So far as the second
question is concerned, what about intervention without an explicit
mandate from the Security Council, in relation to the first question
that Ms Abbott asked me, I stand by what I said earlier: that
that right is already part of customary international law. It
does not need to be written into a text. If I could perhaps pick
up what Mr Littman has just said about it being dangerous on policy
grounds, which I accept is an entirely different matter, yes,
any right is open to abuse but let us have a look also at the
effect of not intervening. If you want an example of that, just
look at the effects of what happened in Rwanda in 1994 when the
international community did not take action, either through the
Security Council or without the Security Council authority. We
could probably have saved the lives, at a conservative estimate,
of at least half a million people if we had done. As for intervention
being something which would spark off more war, what happened
in Rwanda when there was no intervention was not only a tragedy
within that country; it has now had the knock-on effect of creating
a war which has taken in most of central Africa. An area about
three or four times the size of the European Community is now
in a condition of warfare, sucking in over a dozen states. The
risks of not intervening are something that have to be taken very
carefully into account as well as the possibility that a right
of intervention could be abused.
(Professor Lowe) That is almost the only important
question that is left: what we should do. The intervention has
taken place. It took place in the face of overwhelming moral imperatives
and all the NATO states sought desperately to articulate the legal
justification which would encapsulate that moral imperative. We
have to do it and it is much more important to get that right
for the future than it is to make some retrospective judgment
on the legality of the action that took place last year. I am
wholly in favour of it. I think the policy reasons that my colleague
has put out against it are wrong. I do not accept the argument
that an increase in the use of violence is even necessarily wrong.
It may be that there are circumstances where it is necessary to
use force, and if that is one extra instance then so be it. I
am one of the people who happens to think that the use of military
force is, in many circumstances, a much more discriminating weapon
than the use of economic sanctions and other measures, which I
think often impose hardship on people who are not the targets
of the action against them. I am quite prepared to see an increase
in the use of force for limited humanitarian purposes. Of course
there is a danger of abuse; there is also a danger of abuse in
not adopting the principle. The result of preserving the duty
of non-intervention would be to allow people like Milosevic to
carry on massacring their civilians under the shield of their
sovereignty. That is not something that anyone would tolerate.
I do not accept the argument that it is something which would
be limited to a right to be enjoyed by the powerful for the reasons
that Professor Greenwood has said. History shows that to be wrong.
Nor do I accept that it would undermine the Security Council and
the United Nations. What signs there are point in exactly the
opposite direction. Far from states wanting to veto Security Council
involvement in these exercises, the experience of the Timor operation
seems to me to suggest that states are now more keen to keep the
Security Council seized of the matter and keep effective control
over it, because they see that the alternative is to allow groups
of states to take action unilaterally. Perversely, stepping outside
of the Security Council action in Kosovo may have strengthened
the Security Council in this respect. The final point on eating
the heart out of the United Nations again I simply do not accept
because the United Nations' bases 50 years ago on suppositions
about the way in which the Security Council would be able to draw
on armed force for its purposes have not been proved right. It
is simply a case of the international community adjusting to the
realities of military and political life.
Mr Rowlands
318. Professor Greenwood, if we accept the government's
case that there was an overwhelming humanitarian necessity which
justified the use of force, who has or should have the right to
define that that situation exists? Is it the right of one state
to say that that exists in a neighbouring state and therefore
take appropriate action, or would it require a group of states?
Who is going to do the defining? If we accept this principle,
who has at this moment the right to define that such a situation
exists and that intervention is justified?
(Professor Greenwood) Obviously, it is very much more
desirable if that determination is made by an independent and
authoritative body. In the case of Kosovo, that is exactly what
you did have because the Security Council took that decision.
319. They did not adopt force. They accepted
there was a serious situation and a breach of peace.
(Professor Greenwood) I may have misunderstood your
question. What the Security Council did do was to decide that
there was an imminent humanitarian catastrophe, which I thought
was the point you were raising with me, who decides whether that
is there. In this case, the Security Council said so in September
1998 and then it repeated its view through a presidential statement
in January 1999.
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