House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Fourth Report

INTERNATIONAL LAW

124. The Government has consistently asserted that the military action taken in the Kosovo campaign has been lawful, and that NATO would not have acted outside the principles of international law. The then Minister of State told the Committee that the Government had determined that the action threatened in October 1998 would have been lawful,[308] and the Foreign Secretary was also clear that there was a legal base for the action which began in March 1999.[309] Both Ministers told us that states had the right to use force in the case of "overwhelming humanitarian necessity where, in the light of all the circumstances, a limited use of force is justifiable as the only way to avert a humanitarian catastrophe."[310] A number of difficult questions of law (as well as difficult questions of fact) arise. In considering these questions, the Committee benefited greatly from oral evidence from three international lawyers, as we have already mentioned. Our oral legal witnesses were Professor Christopher Greenwood QCof the London School of Economics, Mr Mark Littman QC(author of Kosovo: Law and Diplomacy)[311] and Professor Vaughan Lowe of Oxford University. Most useful written evidence was also received from Professor Ian Brownlie QC (Oxford University), Professor Christine Chinkin (University of Michigan), Professor Peter Rowe (Lancaster University)and Professor Bruno Simma (Ludwig-Maximilians-Universität, Munich). The Committee also sought the opinion of the Attorney General, but the Attorney declined to give evidence on what he described as a "matter as sensitive as this,"[312] citing the convention of the confidentiality of the Law Officers' advice to Government.

125. These legal questions are not arcane. There is a need for a system of law governing the conduct of states, just as the internal affairs of states should be governed by the rule of law. An agreed system of law is particularly important where the use of force is concerned. It is in the national interest of the United Kingdom that an international order based on law should exist, and that individual states, or groups of states, should not be able to interpret the law perversely in their immediate interest. When the law is clear, there can be a consensus; when there is ambiguity, international stability and the mechanisms of collective security set up through the United Nations are threatened.

Was military intervention legal?

UNITED NATIONS APPROVAL

126. The Charter of the United Nations was described by Professor Simma as "not just one multilateral treaty among others, but an instrument of singular legal weight, something akin to a 'constitution' of the international community."[313] The Charter prohibits the threat or use of force[314] except in self defence[315] or when the Security Council determines that there is a threat to peace, breach of the peace or act of aggression, in which case the Security Council may determine (under Chapter VII) that force should be employed "to maintain or restore international peace and security."[316] The NATO military intervention was patently not an act of self defence,[317] nor was there any specific Security Council authorisation for the operation. As Dr Jones Parry told us, none of the three classic bases for intervention (a UN Security Council Resolution; an invitation to intervene; or self-defence) applied in the case of Kosovo.[318] The FCO told us that it had been clear since June 1998 that China and Russia would veto any authorisation of Chapter VII intervention in Kosovo in the Security Council.[319] Legal authorities, ranging from Professor Brownlie, the sternest critic of the legality of NATO action, to Professor Greenwood, the firmest supporter of legality, agree that the provisions of the UN Charter were thus not complied with. Professor Lowe puts it as follows: "the analysis of the text of the UN Charter...yields no clear justification for the NATO action. On the contrary, it suggests that the action was unlawful."[320] Professor Adam Roberts similarly told us that "in strict terms of black letter international law," NATO's actions were not "demonstrably and beyond any reasonable doubt legal" but equally were not illegal.[321] Professor Reisman, the one jurist in addition to Professor Greenwood who was cited to us by the FCO as believing that NATO's actions were lawful,[322] also wrote that Operation Allied Force "did not accord with the design of the UN Charter."[323]

127. There were certainly many actions at the United Nations which could properly be interpreted as supportive of the NATO allies' position:

· UNSCR 1199 of September 1998 was agreed under Chapter VII, though it did not authorise "all necessary means."[324] It called for a cease-fire, recognised "the impending humanitarian catastrophe," and affirmed that there was a threat to peace and security;

· UNSCR 1203, adopted in October 1998 after the agreement signed in Belgrade following the NATO threat of force, does not condemn the threat of force (and indeed welcomed the agreement secured), and can therefore be taken tacitly to support its use. It again affirms the existence of a threat to peace;

· the Security Council rejected (by 12 votes to 3) a draft resolution proposed by Russia on 26 March 1999 which would have condemned NATO military action. The rejection of a proposition that military action should be condemned could be interpreted as approval of that action;[325]

· UNSCR 1244 of 10 June 1999 authorised the international security presence in Kosovo to exercise "all necessary means" to fulfill its responsibilities. Again, this could be taken to imply post facto approval of the military action.

As Professor Chinkin put it:[326]

"Arguments for the legality of NATO's actions in the FRY are strengthened by taking all these actions together: the Security Council recognised the situation in Kosovo as warranting Chapter VII action; it imposed such measures as it could get agreement on; prior to the bombing it affirmed the on-going actions of various European organisations, the EU, the OSCE and NATO, that did not involve the use of force; when it could take no stronger measures itself it did not condemn the regional agency that did so act; and subsequent to the action it endorsed the political agreement."

But she remains dubious that these were sufficient grounds to regard NATO's actions as lawful.

UNITING FOR PEACE

128. There is a procedure at the United Nations known as "Uniting for Peace". This can help a blockage in the Security Council to be bypassed by reference to the General Assembly. Uniting for Peace is relevant only when a peace-and-security issue is on the Security Council agenda and the Council is prevented from exercising its "primary responsibility" to deal with it by veto of one of its permanent members. Though Article 12 of the UN Charter bars the General Assembly from making any recommendation in respect of any dispute or situation where the Security Council is exercising its functions, except at Security Council request, a procedural vote to refer a matter to the General Assembly requires the affirmative vote of nine members of the Security Council and is not subject to veto.[327] The Uniting for Peace procedure was used against the United Kingdom and France over their intervention in Suez in 1956. In the case of Kosovo, the General Assembly could have been called into special session and could, by two-thirds majority, have supported military action. Professor Adam Roberts told us that he had suggested this procedure after Rambouillet failed, but had been rebuffed by the FCO, which was uncertain that the two thirds majority would have been achieved, and which regarded the General Assembly as in any case a cumbersome procedure to use since resolutions passed there could not easily be modified.[328] Dr Jones Parry told us that the Government had considered a resort to the General Assembly, but had rejected the option. He pointed out that, though a resolution of the General Assembly would have been particularly persuasive, the UN Charter still specified that military action required Security Council endorsement.[329] Moreover, in some ways a bare two thirds majority would have been less persuasive than the majority (of 12 to three) actually secured in the Security Council on 26 March 1999. There was thus no ready means at the United Nations of securing direct approval for the NATO action in Kosovo. Our conclusion is that Operation Allied Force was contrary to the specific terms of what might be termed the basic law of the international community—the UN Charter, although this might have been avoided if the Allies had attempted to use the Uniting for Peace procedures.

CUSTOMARY INTERNATIONAL LAW: INTERVENTION FOR HUMANITARIAN PURPOSES (HUMANITARIAN INTERVENTION)

129. International law is not, however, static. It develops both through the agreement of new treaties and other international instruments, and through the evolution of customary law. The Charter of the United Nations has been interpreted in different ways in the half century since it was written. As Professor Greenwood pointed out,[330] some parts of the Charter have been conveniently ignored, while, since the end of the Cold War, the provisions of Article 2(7) which forbid intervention in internal affairs of states have been widened to allow such intervention on the grounds that what is happening internally in the state threatens international peace and security.[331] Moreover, it is at least arguable that the preponderant will of the international community ought not to be held to ransom by the exercise of the veto (or threat of the exercise of the veto) by a minority, or indeed only one, of the permanent members of the Security Council. As Professor Greenwood put it, "an interpretation of international law which would forbid intervention to prevent something as terrible as the Holocaust, unless a permanent member could be persuaded to lift its veto, would be contrary to the principles on which modern international law is based as well as flying in the face of the developments of the last fifty years."[332] We also note the fact that a veto by China on 25 February 1999 prevented the Security Council from authorising a six month extension of the term of the UN Preventive Deployment Force (UNPREDEP) in Macedonia. It was commonly believed that this veto was cast because of the establishment of diplomatic relations with Taiwan by Macedonia. One country's veto should not force the international community to sit on the sidelines and watch appalling human rights violations continue unchecked. We discuss the issue of the morality of the intervention, as distinct from its legality, below.[333]

130. Supporters of NATO's position argue that a new right has developed in customary international law—the right of humanitarian intervention. The argument in favour of the existence of this right was set out by Professor Greenwood.[334] First he asserted that states' rights did not take priority over human rights. Second he argued that there was increasing evidence of the exercise of intervention in defence of human rights. Third he pointed to recognition by the Security Council that human rights violations could be a threat to international security. He concluded that "modern customary international law does not exclude all possibility of military intervention on humanitarian grounds by states, or by an organisation like NATO," though he qualified his opinion by saying that two criteria had to be met: the existence, or immediate threat, of "the most serious humanitarian emergency involving large scale loss of life" and military intervention being "the only practicable means by which that loss of life can be ended or prevented." Dame Pauline Neville-Jones was clear that NATO action had been lawful,[335] and Professor Lowe told us that NATO action (if a breach of a fifty year old Charter) was "consonant with the way international customary law is developing."[336] Professor Reisman put it thus: "when human rights enforcement by military means is required, it should, indeed be the responsibility of the Security Council acting under the Charter. But when the Council cannot act, the legal requirement continues to be to save lives."[337]

131. Professor Greenwood conceded that the right of humanitarian intervention was based on state practice, but that this was state practice which had evolved in the past 10 years since the end of the Cold War.[338] Although the interventions of India in East Pakistan (1971), Vietnam in Cambodia (1978), and Tanzania in Uganda (1979) had the effect of putting an end to massive human rights violations in each case, the intervening states relied ultimately on arguments of self-defence to justify their actions, even if reference was also made to the humanitarian situation. Only the interventions of ECOWAS in Liberia (1990) and the intervention by the USA, the United Kingdom and France in northern Iraq (1992) seem to have been unambiguously humanitarian in their stated aims. Professor Greenwood told us that the very short time scale over which the new practice had been apparent was unsurprising in international law, where a custom could develop much more quickly than in domestic law. Moreover, he argued that customary law formed a much more important part of international law than it did of domestic law.[339]

132. An entirely contrary view is taken by Professor Brownlie, who provided the Committee with an exhaustive review of the authorities, including jurists of twelve nationalities, three of whom had been President of the International Court of Justice. He concluded that "there is very little evidence to support assertions that a new principle of customary law legitimating humanitarian intervention has crystallised."[340] Professor Brownlie's view that the right of humanitarian intervention was at least doubtful was also held by Professor Lowe (who told us that "few lawyers would claim that the 'right' is at present clearly established in international law")[341] and Professor Chinkin (who wrote that she did "not think that state practice is sufficient to conclude definitively that the right to use force for humanitarian reasons has become part of customary international law."[342] We are persuaded that Professor Greenwood was too ambitious in saying that a new customary right has developed. We conclude that, at the very least, the doctrine of humanitarian intervention has a tenuous basis in current international customary law, and that this renders NATO action legally questionable.

HUMANITARIAN INTERVENTION IN SUPPORT OF THE SECURITY COUNCIL

133. Circumvention of the Security Council is a step which cannot be taken lightly, especially when, as Professor Lowe argued,[343] the Security Council has begun to act since the end of the Cold War as it was always intended to act, with Chapter VII invoked over 120 times[344] and few vetos cast. Mr Littman told us of his view that acting without Security Council approval was also contrary to public policy since to do so might lead to more conflict; because the precedent was likely to be abused; and because such action would only be taken by powerful states against less powerful states.[345] To sideline the Council would, in his view, be foolish.[346] But as we have already described, there were many indications of Security Council support for NATO's actions, even if no resolution specifically authorised the use of force.

134. To justify its action the British Government relied not just upon a defence of humanitarian intervention, but a defence of humanitarian intervention in support of the Security Council, if not specifically endorsed by the Council. The Government's position on the legality of Operation Allied Force was in this way clearly set out by the then Defence Secretary on 25 March 1999.[347] He told the House that the Government was "in no doubt that NATO is acting within international law" and that "the use of force...can be justified as an exceptional measure in support of purposes laid down by the UN Secretary, but without the Council's express authorisation, where that is the only means to avert an immediate and overwhelming humanitarian catastrophe." Identical wording was used in evidence to the Committee.[348] This legal justification was described by Professor Lowe as "one of some subtlety"[349] because it wrapped up two separate issues—the criteria on which it might be lawful to intervene, and the manner in which it can be determined whether those criteria have been met. We conclude that, faced with the threat of veto in the Security Council by Russia and China, the NATO allies did all that they could to make the military intervention in Kosovo as compliant with the tenets of international law as possible.

LEGALITY UNDER NATO TREATY

135. There is a further issue about the legality of NATO's actions. There was agreement among our legal witnesses that the North Atlantic Treaty gave no authority for NATO to act for humanitarian purposes.[350] As Professor Chinkin pointed out, Article 5 of the Treaty "provides for the use of force only in collective self-defence" of NATO members.[351] Professor Brownlie also referred to NATO's own wish not to be seen as a regional organisation for the purposes of the United Nations.[352] The Foreign Secretary did not believe that any amendment of the North Atlantic Treaty was necessary, though he accepted that NATO's action in Kosovo had extended the role and function of NATO beyond the terms of the NATO Treaty. He also drew our attention to NATO's new strategic concept which recognises a crisis management responsibility for NATO.[353] Despite this, we certainly would not wish to see NATO taking on a role as a regional arbiter of when humanitarian intervention was appropriate, persuasive as the unanimous support of 19 democratic governments for any action would be. Russia, for one, would be deeply concerned by any arrogation of this role to itself by NATO. We note Professor Simma's view that "legally the Alliance has no greater freedom than its Member States," and agree with him that "the genie of 'NATO self-authorisation' must not be let out of the bottle."[354] Professor Roberts told us that "NATO was not the ideal instrument, it was simply the only one that was there."[355] We recognise the pragmatism of this argument. We accept the view of expert witnesses that the North Atlantic Treaty gives NATO no authority to act for humanitarian purposes, and we recommend that the Government examine whether any new legal instrument is necessary to allow NATO to take action in future in the same manner as it did in Kosovo.

INTERNATIONAL COURT OF JUSTICE

136. It would have been possible for the legality of the intervention to have been subject to the judgement of the International Court of Justice. Yugoslavia brought proceedings against several members of NATO, including the United Kingdom, in April 1999. The United Kingdom, decided, however, not to contest the substantive issue but to argue the procedural point that Yugoslavia had accepted the Court's compulsory jurisdiction too late for the United Kingdom to be required to deal with the substantive issue.[356] Dr Jones Parry agreed that this was "a legal technicality."[357] Mr Littman was very critical of this decision because it had, in his view, deprived the world of an authoritative judgement on the legality of humanitarian intervention.[358] Professor Lowe, however, argued that the United Kingdom should not accept jurisdiction in this case because the law in the area was in a state of development, and the International Court might arrest that development.[359] The decision to rely on a technicality to prevent the International Court from deciding the issue does suggest a concern that the judgement would not have been favourable, though this was specifically denied by FCO witnesses, who instead said that the Government had been unwilling to allow the "capricious" use of the Court by the Yugoslavs.[360]

LAW AND MORALITY

137. Disputes about international law are not ones which this Committee can resolve, but there is a separate question of morality. Philosophers since Aquinas have wrestled with the issue of when a war is a just war, and many of the issues raised by the Kosovo campaign are germane to that debate. Whether NATO action was lawful is a very different question from whether NATO action was right—a point made by John Sweeney.[361] Professor Simma[362] pointed out that there is a moral, as well as a legal issue at stake:

"Humanitarian interventions involving the threat or use of armed force and undertaken without the mandate or the authorisation of the Security Council will, as a matter of principle, remain in breach of international law. But such a general statement cannot be the last word. Rather, in any instance of humanitarian intervention a careful assessment will have to be made of how heavily such illegality weighs against all the circumstances of a particular concrete case, and of the efforts, if any, undertaken by the parties involved to get 'as close to the law' as possible. Such analyses will influence not only the moral but also the legal judgement in such cases."

As Professor Chinkin put it, "the actions have a legitimacy, if not strict legality under international law."[363] Professor Reisman, while upholding the importance of the rule of law, and clearly discomforted by some aspects of the legality of the Kosovo campaign, pointed to US Supreme Court Justice Holmes's dictum that "a constitution is not a suicide pact."[364] We believe that, while legal questions in international relations are important, law cannot become a means by which universally acknowledged principles of human rights are undermined.

138. To determine whether NATO's action was morally justified, and legally justified under the criteria which NATO set itself, we have to ask whether a humanitarian emergency existed before NATO intervened, and whether a humanitarian catastrophe would have occurred—perhaps over a number of years, rather than being concentrated within the 78 days of the NATO campaign—if intervention had not taken place. We have dealt with these issues elsewhere,[365] and concluded that the answer to both questions is "yes". That being the case, we conclude that NATO's military action, if of dubious legality in the current state of international law, was justified on moral grounds.

THE DEVELOPMENT OF THE LAW

139. Professor Lowe told us that it was now much more important to develop international law so that actions such as Operation Allied Force would in future be legally acceptable.[366] Ideally, the international community should agree a treaty which would set out the conditions under which humanitarian intervention should be permissible. However, Professor Lowe believed that there was no likelihood of consensus on a treaty text on humanitarian intervention, but that the parameters for action set by NATO as expressed by the then Defence Secretary should become the basis of a new customary law principles. Mr Littman believed that Professor Lowe's view that there was no prospect of a new treaty text indicated that there was no consensus as to the principles of humanitarian intervention, and for that reason it could not be argued that a new custom of international law had arisen. In his view, "a custom can only exist by the general consent of mankind."[367] Professor Greenwood repudiated this argument, pointing to the past failure to agree on the definition of terrorism. He told us that "the fact that states are not prepared to agree on a form of words does not mean that they do not support the principle of humanitarian intervention."[368]

140. Professor Lowe set out his principles for humanitarian intervention as follows:[369]

" 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."

A considerable problem for these criteria is the involvement of the Security Council. As Mr Littman pointed out, if "the passing of the non-force resolution[370] would legally open the door to forceful intervention, the states which were opposed to the latter would veto the former."[371] It is certainly likely that China and Russia might not be prepared to allow the Security Council to determine that a country's internal problems were a threat to peace if they felt that a resolution to this effect gave a green light to the use of force somewhere down the line. Professor Lowe's desire to keep the Security Council involved[372] was shared by Professor Greenwood who told us that it was "obviously desirable, where possible" for the Security Council to take action.[373] But the dilemma remains of balancing the problem of potential Security Council paralysis with the danger of having too few hurdles to prevent states from asserting a right of intervention on specious humanitarian grounds. In a subsequent memorandum, Professor Lowe conceded that, if the use of the veto in the Security Council led to stalemate, "the possibility of proceeding on the basis of a similar determination made by a regional organisation might have to be considered."[374]

141. Alternative criteria were set out by Professor Chinkin.[375] These were that:

(ii) the UN is unable or unwilling to act

(iii) an overwhelming necessity to act

(iv) the intervention must be proportionate

The Government is itself pursuing with the United Nations new principles to govern humanitarian intervention. This has been the subject of two important speeches by the Prime Minister—at the Economic Club of Chicago on 22 April 1999, and at the Guildhall on 22 November 1999.[376] Mr Hain, the Minister of State at the FCO, set the British proposals out for us as follows:

" first, any intervention is by definition a failure of prevention. Force should always be the last resort;

· second, the immediate responsibility for halting violence rests with the state in which it occurs;

· but, third, when faced with an immediate and overwhelming humanitarian catastrophe and a government that has demonstrated itself unwilling or unable to prevent it, the international community should take action;

· and finally, any use of force in this context must be collective, proportionate, likely to achieve its objective, and carried out in accordance with international law."[377]

142. We agree entirely with these principles, which contain many of the ideas advanced by Professors Lowe and Chinkin. However, the difficulty remains in the final phrase "carried out in accordance with international law." So far as it is an assertion that the norms such as the Geneva Conventions will be followed, it is not problematic, but this wording is presumably also intended to cover the legal basis on which the action is commenced. The implication is that, when the Security Council refuses to endorse an act of humanitarian intervention, that humanitarian intervention will rest on the very shaky basis of an evolving principle of customary international law which flies in the face of the plain words of the UN Charter. However, if there is no prospect of a new treaty text, then this will have to remain the fig leaf of legal respectability for actions which are generally thought to be morally entirely justified. As Professor Lowe put it in the case of Kosovo, the intervention took place because of "overwhelming moral imperatives and all the NATO states sought desperately to articulate the legal justification which would encapsulate that moral imperative."[378]

143. Of course, NATO's action in Kosovo is itself a precedent. As Professor Greenwood told us, customary international law develops through actions by states.[379] Professor Lowe pointed out[380] that "new rules of customary law emerge when a consistent practice is followed or acquiesced in by states in general", and that if NATO states assert that Operation Allied Force 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". He amplified his view in a supplementary memorandum.[381] Mr Littman told us that the precedent was not valid because the Kosovo action was not regarded as lawful,[382] but in this view he appears to argue against the whole principle of evolving customary law.

144. The international community will not be obliged to intervene for humanitarian reasons even if it were legally possible for it to do so. As in the case of Rwanda, drawn to our attention by Professor Greenwood,[383] or Chechnya, it may choose not to do so for reasons of practicality or realpolitik. The Government's formulation of "likely to achieve its objective" would cover the case of Chechnya. It will certainly be important that strict criteria such as those set out by the Government are applied before any humanitarian intervention is deemed desirable. Mr Littman quoted[384] a FCO document of 1986 which argues against the right of humanitarian intervention "on prudential grounds" because "the scope for abusing such a right argues strongly against its creation." Professor Greenwood argued that this is not persuasive, because "all rights are capable of being abused."[385] Professor Lowe did not believe that "objective criteria can ever be used to establish without doubt that a particular instance of humanitarian intervention is justifiable", and he conceded that "the danger of abuse is evident."[386] Nevertheless, what will be important is that criteria are devised which would establish with as little doubt as possible when humanitarian intervention is justifiable and when it is not, and that these criteria must not be so flexible as to legitimise one state's intervention in another's internal affairs simply because of an assertion of humanitarian grounds for doing so. We support the FCO in its aim of establishing in the United Nations new principles governing humanitarian intervention.