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.
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."
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."
140. Professor Lowe set out his principles for
humanitarian intervention 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."
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
would legally open the door to forceful intervention, the states
which were opposed to the latter would veto the former."
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 was shared
by Professor Greenwood who told us that it was "obviously
desirable, where possible" for the Security Council to take
action. 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."
141. Alternative criteria were set out by Professor
These were that:
(i) a gross violation
of human rights occurring in the targeted state
(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 Ministerat
the Economic Club of Chicago on 22 April 1999, and at the Guildhall
on 22 November 1999.
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."
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."
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.
Professor Lowe pointed out
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.
Mr Littman told us that the precedent was not valid because the
Kosovo action was not regarded as lawful,
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,
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
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."
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."
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.