Examination of Witnesses (Questions 320
- 339)
TUESDAY 8 FEBRUARY 2000
MR MARK
LITTMAN, QC, PROFESSOR
CHRISTOPHER GREENWOOD,
QC AND PROFESSOR
VAUGHAN LOWE
Ms Abbott
320. It did not endorse the use of force.
(Professor Greenwood) That is rather different. I
am not suggesting that the Security Council did endorse the use
of force. I am certainly not suggesting that they authorised the
use of force. I made that clear in my memorandum.
Mr Rowlands
321. The government does not qualify. It does
not say the UN did this; it just says that there was an overwhelming
humanitarian necessity to act. It does not say the UN resolution
was per se justified. It just says that is the situation
and that can justify an action of intervention. I am trying to
find out whether, if we accept that principle—and I think
you are arguing that case—one state can define that situation
to exist in a neighbouring state and therefore intervene or whether
it requires more than one state and, if so, what grouping? Do
you think it got great authority because it was NATO that did
the intervening or could one state intervene?
(Professor Greenwood) I think where you have intervention
that is by regional organisation or arrangement, the determination
made by that organisation that there is a real humanitarian necessity
to act is stronger than when it is made by an individual state,
but I think there is a danger in saying that you have to have
a regional action because you do not always have regional organisations
in every part of the world who are in a position to do that. Some
regional organisations are very much stronger than others. NATO
is in any event in a category of its own in relation to all of
this. What I am suggesting is that whether there is an overwhelming
humanitarian need to act is an objective question of fact which
has to be approached in good faith in each case. It is obviously
desirable, where possible, that the Security Council should take
the decision if that necessity exists.
322. And authorise the force?
(Professor Greenwood) I think there are two stages
to it. There is the question whether there is a humanitarian necessity,
a humanitarian emergency, and the second question, whether the
Security Council is going to authorise military action; if so,
by whom? In the Kosovo case, the Security Council jumped the first
of those two fences but did not jump the second. NATO went ahead
and did that on its own authority and then subsequently the Security
Council approved of what had happened when it passed resolution
1244.
323. Professor Lowe, you are in favour of an
international case for doing this. If it was not the UN Security
Council, who would in your view have the right to intervene if
humanitarian necessity required it?
(Professor Lowe) I do not see why it should not be
the Security Council.
324. If the Security Council did not endorse
that?
(Professor Lowe) It would depend why the Security
Council did not endorse it. It may well be that the Security Council
does not endorse it because there is in truth no objective circumstance
for humanitarian intervention there. I would not say that if the
Security Council refuses to do something states should then be
free to go and find some organisation which would give them a
licence to go and intervene. I would want to keep it to the Security
Council unless it were proved quite clearly that the Security
Council had for some reason, which in my view does not now exist,
become incapable of making that decision.
325. If, as in this situation, the Security
Council, to use Professor Greenwood's phrase, jumped the first
hurdle but decided not to jump the second, if you had a new law,
if that situation arose in the future, who would have the right
to define the action? Who would have the right to decide to take
action if it was not the Security Council? The Security Council
has declared that a very serious humanitarian situation has arisen
in country A or B but has not jumped the second hurdle. Who do
you think it should be?
(Professor Lowe) I think it should then devolve upon
groups of states. We are not talking about an existent legal principle.
My view as to what the policy should be is not a view that has
any particular expert cachet behind it. My personal view is that
it should be a group of states simply because it is harder for
a group of states to reach a consensus on what is a very serious
step than it is for an individual state. I too, like everyone
else, am troubled by the prospect of it being too easy for states
to slip into the road of intervention.
Mr Mackinlay
326. As well as looking to the future, it seems
to me we have to decide whether or not the action was unlawful
or whether there is an absence of law, a void. Thirdly, even if
you establish either of those would prevail, it seems to me governments
always have the right to say, "Ignore that" and that
is an overriding policy consideration. That is what is at the
back of my mind. I would like to ask four quick questions. The
first one I would like to ask Professor Greenwood. Your colleague
has drawn our attention to Article 53 which specifically provides
that, "no enforcement action shall be taken under regional
arrangements or by regional agencies without the authorisation
of the Security Council." It strikes me that is explicit.
There can be no ambiguity there and it seems to me that, bearing
in mind all our earlier discussion, if the Security Council did
not specifically authorise the Kosovo action, it was contrary
to the United Nations. Putting aside other policy considerations,
surely that is fatal to legitimising the Kosovo action?
(Professor Greenwood) I do not think it is. First
of all, the Charter has a way of saying things in what appear
to be explicit and clear cut terms and the practice is rather
different. If you look at Article 27, it says that no resolution
shall be adopted without the affirmative votes of the five permanent
members. That could not be clearer either. They all have to vote
in favour. The practice for 55 years has been that, provided that
none of them actually votes against, the resolution can be adopted;
and yet the Charter has never actually been amended. What Article
53 says is that a regional organisation may not take enforcement
action without the Security Council's authority. It does not preclude
a regional organisation doing what its own Member States are entitled
to do under customary international law anyway. That is why Article
53 does not deal with self-defence by a regional organisation.
If NATO was acting in self-defence, no question of requiring Security
Council authority would arise. My argument is that customary international
law recognises that groups of states have a right of humanitarian
intervention in extreme circumstances. If the 19 states that make
up NATO have that right as a group of 19 states, I do not see
that Article 53 should preclude them from acting through the umbrella
of NATO. Article 53 does not affect what states may do collectively;
it only deals with the organisations themselves. I think it is
there to deal with a situation where an organisation is claiming
a right to take action which clearly states that are its members
do not possess individually.
327. I follow that. Frankly, I have to differ
on that with you. This notion of customary international law:
I understand all jurisdictions are based to some extent on custom
and practice but you yourself said that you thought this customary
law had been built up—you did not even offer a score years—you
said a decade. Where else in the world would you say that custom
and practice had built up over ten years? Surely it has to be
decades and decades and decades before you could legitimise? I
was quite surprised. It seemed to me that is where you were floundering.
That was the difference between Professor Vaughan Lowe and yourself.
Professor Lowe said "plainly moving in that direction but
I do not think we have got there yet" and I kind of went
with him actually.
(Professor Greenwood) I hope I might be able to persuade
you to go the rest of the way with me in that case. You are absolutely
right that there is nowhere else in the world where you would
get custom developing over such a short space of time. The reason
for that is that there is no other legal system apart from international
law in which custom plays such a central role. Custom is almost
of insignificant importance today in most domestic legal systems
because you have a parliament; you have a court structure that
enforces the law; the law develops that way. In international
law, you do not have a legislator. Treaty law, written law, is
binding only on the states that choose to become parties to those
treaties. A great many treaties of considerable significance do
not command anywhere near universal acceptance. Therefore, the
law develops much more on the basis of state practice. I would
say that custom law occupies still the preeminent position in
the field of international law instead of being very much back
in the third or fourth division as it would be in the domestic
legal system. It can evolve in a very short space of time. Much
of human rights law evolved in a very short space of time. If
one looks, for example, at the approach taken to such issues as
the rights of women, the rights of homosexuals, the rights of
people detained under mental health legislation, the speed of
transformation of the law in that area was quite extraordinary.
The law of the sea is another example.
Mr Rowlands
328. You mentioned that the disaster in Rwanda
was because of non-intervention. The United Nations Security Council
decided not to intervene. Who, under customary law, would have
had the right to intervene in Rwanda?
(Professor Greenwood) That right of intervention would
have resided with the regional organisation in question, the Organisation
of African Unity. However, I think one could go beyond that and
say that the right of intervention resides with a group within
the international community. It does not have to be a predefined
group of states. I think that is an important point to keep in
mind.
329. It need not be of the region; it can be
outside the region?
(Professor Greenwood) It need not be of the region,
although you would have to have regional participation because
you would need the facilities of states within the region to be
able to mount an operation of that kind. It would not have been
possible, for example, for western states to have intervened in
Rwanda without the consent of at least some of the neighbouring
states because we simply could not have deployed forces.
Chairman
330. Except from aircraft carriers.
(Professor Greenwood) We would still have had to overflown
the territory of neighbouring states.
Dr Starkey
331. Following that line of argument, it is
wrong to talk about the intervention in Kosovo simply involving
NATO because of course it also involved the countries of the region
in which NATO troops were stationed.
(Professor Greenwood) I think I am right in saying
the only two states that were involved in any significant respect
that are not members of NATO would have been Albania and Macedonia.
332. It went wider than NATO.
(Professor Greenwood) Yes.
Mr Mackinlay
333. Mr Littman, in your supplementary note
to us you say that the United Kingdom has been maintaining a jurisdictional
objection to the case now pending before the International Court
of Justice. What is that? Are you saying that basically many of
these matters cannot be tested because Britain says, "We
will not allow them to be tested by the International Court of
Justice"?
(Mr Littman) Yes. Even since I wrote my note, we have
new information about that. In answer to a question in the House
of Lords the other day, the government made it quite clear that
it was going to maintain its jurisdictional objection to the progress
of the claim by the Yugoslav government against the United Kingdom
and others in the International Court of Justice, and said they
were confident that that jurisdictional plea would succeed, as
I would accept it may well do because there is a technical point
there about the dates. That would mean that there will be probably
no decision if Her Majesty's Government is right on that point,
by the International Court, on the question which is before you
now, namely whether there is such a principle and if so what the
conditions and modalities of that principle are, and indeed whether
they existed in the present case.
334. There has been a political decision to
block the International Court examining these matters?
(Mr Littman) I do not like to use terms of abuse like
"political". It seems to me the reason for it is they
think they would probably lose.
Mr Illsley
335. Mr Littman, I raised this question earlier
as to whether there would have been value in arguing the point
at that very case. You take the point that you think the British
government would have lost on the substantive point?
(Mr Littman) That is my opinion, yes.
336. In your memorandum, you said that the relevant
sources of public international law are treaties, custom and the
opinion of jurists. What weight would the decision of the Court
carry?
(Mr Littman) You have gone straight for the jugular
there. You will see from my book—I do not venture to suggest
you should read the whole of my pamphlet—the decisions of
the International Court of Justice are of the greatest possible
weight. They are not, as I understand it, binding in the sense
of the rule that exists in the English court but they carry great
weight and that was indeed why I cited the Nicaragua case which
seems to me to be plainly a decision against the existence of
any such principle, as is plain here. The suggestion that somehow
or other by wanting the British government to drop this jurisdictional
point and agree, as they still can because the case is still going
on, to accept the jurisdiction of the court was a great pity because
it seems to me that is far and away the best tribunal to decide
this so that the British people could know that what they did
was lawful or unlawful.
(Professor Lowe) The International Court has no compulsory
jurisdiction. Every state that appears before it has to consent
to go before it. Britain's consent has been laid down in a text
that has been in existence now for 50 years or so. Years ago,
we included in that a provision which said that we would not go
to the Court in response to an application lodged by any state
that had itself consented less than a year previously. We did
that in order to avoid being ambushed by states. It is a principle
that is well established. There are other countries that do it
as well. It springs out of the belief that the International Court
is there to be helpful and that in the context where states are
forced into the International Court it is unlikely to be helpful.
It is not a political decision not to accept the Court's jurisdiction;
it is simply the consequence of a policy which has been in existence
for many years. It is quite right to say that it would be possible
for the British government to accept jurisdiction in this case.
I do not think it should and the reason I do not think it should
is that this area of law, to my mind, is still in the state where
it is growing. We have not yet worked out precisely what we want
the law to be. There is a real danger in having a decision from
the International Court which will arrest that development. It
would simply be taking an issue before it is ripe for decision.
Mr Mackinlay: Have any of you been privy to
or had sight of or any knowledge as to what the advice of the
Attorney General Law Officers was to Her Majesty's Government?
Chairman: I do not think that is a proper question
because the Attorney case is private.
Mr Mackinlay: I was not asking what it was.
The answer must be no. If the answer is no, we can move on. If
the answer is yes, we will want to know the very point you are
intervening on: why, if it was private, other people could have
it.
Chairman: If the witnesses are prepared to comment,
so be it.
Mr Mackinlay: Have any of you been privy to
or had knowledge of the advice of the Law Officers to Her Majesty's
Government in respect of this Kosovo intervention?
Chairman
337. Other than gossip in the Temple, have you
read the advice of the Attorney General?
(Mr Littman) I have not seen the advice. I have read
the press report which said he had advised the Cabinet against
the war but I have no idea whether that is true or false. I have
also read the press report to the effect that the legal advisers
to NATO advised NATO that the law was unlawful without the approval
of the Security Council, but I do not know whether that was true
or false.
338. And you do not believe everything in the
press?
(Mr Littman) I do not believe everything in the press.
339. Professor Lowe?
(Professor Lowe) No, I have not.
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