House of Commons - Foreign Affairs - Appendices to the Minutes of Evidence

Select Committee on Foreign Affairs Appendices to the Minutes of Evidence

APPENDIX 2

Memorandum submitted by Professor Ian Brownlie CBE, QC

I. INTRODUCTION

1. This Memorandum has been prepared in accordance with the request of the Foreign Affairs Committee (letter dated 28 July 1999), which request referred to a written memorandum "on the area of international law".

2. The writer is the author of a well-known textbook, Principles of Public International Law, first published in 1966 (now in its fifth edition), which has been published in Japanese, Portuguese and Russian editions. In 1996 he was elected to membership of the International Law Commission of the United Nations on the nomination of the Governments of the United Kingdom and India. The Commission is a body of independent experts engaged in the codification and progressive development of international law. In 1993 the writer was awarded the CBE in the Queen's Birthday Honours "for services to international law".

3. In the course of his career as a member of the English Bar, specialising in international dispute, he has worked as legal adviser and/or advocate for at least 35 States. In this context it is necessary to point to the fact that, as a part of his professional involvements, he has acted as Counsel and Advocate in the recent proceedings before the International Court of Justice on behalf of Yugoslavia. It is also necessary to stress that the Memorandum represents his own views and that there has been no input from any Government or Government-related organisation.

4. Whilst the writer has asked to deal with "the area of international law", it will be necessary in certain contexts to refer to questions of fact. As far as possible, the relevant issues of fact will be treated as hypotheses, on the basis of which an appropriate examination of the legal issues can be carried out.

II. JUSTIFICATIONS OFFERED BY THE UNITED KINGDOM GOVERNMENT AND OTHER MEMBERS OF NATO

(a) The Purpose

5. As a necessary preliminary the justifications offered by the United Kingdom and other NATO members will be examined. This survey will relate to four sources: statements in the House of Commons and the House of Lords, statements in the United Nations, other public statements, and, finally, statements in speeches before the International Court of Justice. The first three sources refer exclusively to the position of the United Kingdom. The fourth source provides evidence of the position of the NATO Governments in general.

6. As will be seen, the positions of the NATO States were fairly consistent.

(b) Statements in the House of Commons

7. The primary characteristic of the statements is the relative absence of reference to specific considerations of public international law.

8. The statements by Ministers fall into three general categories. The first was the assertion of a legal right to take action "to prevent humanitarian catastrophè. Thus, on 1 February 1999, the Foreign Secretary, in reply to a question, made the following statement:

"My hon. Friend asked also about the legal base for any action. We are clear that we have legal authority for action to prevent humanitarian catastrophe and we are all deeply worried that we shall be looking at just such a catastrophe unless we are able to get a political settlement under way. I stress to my hon. Friend and to the House that the proposal that I have outlined this afternoon was welcomed unanimously by the Security Council and that no permanent member disagreed with it".

(Hansard, 1 Feb. 1999, col 605).

9. Similar statements were made on other occasions, thus:

23 March, 1999, the Prime Minister : cols 162-3.

24 March, the Deputy Prime Minister : col 483.

25 March, the Foreign Secretary : col 538.

25 March, the Defence Secretary : cols 614, 617.

10. The second category of statements involves the assertion that military action, or the threat thereof, would be undertaken "in the event of Belgrade not complying with the Contact Group's demands". This is a reference to the peace talks at Rambouillet. The relevant statements are as follows:

25 Jan 1999, the Defence Secretary : col 12.

16 Feb, the Foreign Secretary : col 721.

23 March, the Prime Minister : cols 161- 3.

25 March, the Foreign Secretary : col 536.

14 April, the Prime Minister : cols 19-21.

11. The third category of statements involves reliance upon Security Council resolutions 1199 and 1203. The relevant statements are as follows:

23 March, 1999, the Prime Minister : col 169.

24 March, the Deputy Prime Minister : col 483.

25 March, the Defence Secretary : cols 615, 617.

12. The extent to which international law is being relied upon in these various statements (of all three categories) is difficult to assess. The statement made on 1 February by Mr Cook refers in clear terms to "the legal base for any action".

On the other hand, the Prime Minister's major statement on 25 March (the day after the bombing commenced) makes no single reference to legal considerations, and, also on 25 March, Mr Lloyd, the Minister of State, referred only to a "moral obligation" : col 543.

13. The position is complicated further by a tendency to combine the humanitarian theme with the use of force to implement "the Rambouillet Accords" : see the Prime Minister's statements on 23 March and13 April. The relevance of "the Rambouillet Accords" will be examined below, paragraphs 83-90.

14. Lord Kennet asked the following question on 16 November 1998:

"Whether the concept of "overwhelming humanitarian necessity" (as now used by the Government in connection with the possible use of force by NATO in the context of Kosovo) is recognised in international law; and, if so, in what form; and

(a) on the meaning and legal validity of the concept;

(b) on the authority it may confer on states or group of states proposing to use military force in the absence of a United Nations Security Council Resolution specifically requiring or permitting the use of force; and

Whether "overwhelming humanitarian necessity" overrides other principles of international law; and, if so, how are the circumstances in which it may do so to be recognised by the international community; and by whom should they be recognised if military action is lawfully to follow; and [HL3698]

Whether unilateral declarations alleging "overwhelming humanitarian necessity" may confer legality on threats or uses of force of interference within sovereign states that would otherwise be unlawful; and [HL3699]

Whether the concept of "overwhelming humanitarian necessity" and related legal doctrines have been considered by the International Court at The Hague."

(Lords, 16 November 1998, WA, col 139)

15. Baroness Symons replied:

"The prohibitions on the use of force contained in the UN Charter do not preclude the use of force by a state or group of states in self-defence in accordance with Article 51 or under the authorisation of the Security Council acting under Chapter VII of the Charter. There is no general doctrine of humanitarian necessity in international law. Cases have nevertheless arisen (as in northern Iraq in 1991) when, in the light of all the circumstances, a limited use of force was justifiable in support of purposes laid down by the Security Council but without the council's express authorisation when that was the only means to avert an immediate and overwhelming humanitarian catastrophe. Such cases would in the nature of things be exceptional and would depend on an objective assessment of the factual circumstances at the time and on the terms of relevant decisions of the Security Council bearing on the situation in question."

(ibid, col 140).

16. Subsequently Baroness Symons clarified the Government's position in a letter to the Earl of Lauderdale. The key passage from this document was quoted in a speech by Lord Lauderdale on 6 May 1999, as follows:

Official Report

`I replied that, in exceptional circumstances, the use of force was justifiable when that was the only means to avert a humanitarian disaster. However, I mistakenly gave the impression that this [new] basis was also set out in a United Nations' resolution. It is not. But the force being used on the grounds of humanitarian necessity is in support of purposes laid down by the Security Council'.

That is very different from having a direct mandate from the United Nations. I must thank the noble Baroness for her letter to me. As I have said, I hope that as she said that she would put a copy in the Library I have not breached any confidence in reading it out."

(Lords, 6 May 1999, col 861).

17. In the debate on 6 May Baroness Symons reaffirmed her written answer of 16 November (Lords, 6 May 1999, col 904).

(d) Statement by the UK Permanent Representative in the Security Council

18. The official position of the United Kingdom was set forth in a statement by the Permanent Representative to the United Nations, Sir Jeremy Greenstock, on 24 March. The key passages are as follows:

"Mr President,

In defiance of the international community, President Milosevic has refused to accept the interim political settlement negotiated at Rambouillet; to observe the limits on security force levels agreed on 25 October; and to end the excessive and disproportionate use of force in Kosovo.

Because of his failure to meet these demands, we face a humanitarian catastrophe. NATO has been forced to take military action because all other means of preventing a humanitarian catastrophe have been frustrated by Serb behaviour.

We have taken this action with regret, in order to save lives. It will be directed towards disrupting the violent attacks being perpetrated by the Serb security forces and weakening their ability to create a humanitarian catastrophe. In the longer term, the International Criminal Tribunal, whose mandate extends to Kosovo, will hold those responsible for violations of international humanitarian law accountable for their actions.

Mr President,

The action being taken is legal. It is justified as an exceptional measure to prevent an overwhelming humanitarian catastrophe. Under present circumstances in Kosovo there is convincing evidence that such a catastrophe is imminent. Renewed acts of repression by the authorities of the Federal Republic of Yugoslavia would cause further loss of civilian life and would lead to displacement of the civilian population on a large scale and in hostile conditions.

Every means short of force has been tried to avert this situation. In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention is legally justifiable. The force now proposed is directed exclusively to averting a humanitarian catastrophe, and is the minimum judged necessary for that purpose."

19. This statement makes the clear assertion that the action is legal but no specific international law source is invoked and, in particular, no reference is made to the United Nations Charter.

(e) Statements on Behalf of NATO Member States in Proceedings before the International Court of Justice

20. In May of this year Yugoslavia sued 10 Member States of NATO before the International Court of Justice in respect of the bombing campaign and its consequences, including civilian deaths, injuries and privations, the effect on navigation on the Danube, and damage to the environment. The first procedural development involved a request by Yugoslavia for interim measures of protection. The ramifications of these proceedings are examined below, paras 108-11. For present purposes the proceedings constitute a further source for official indications as to the legal justification for the air strikes against Yugoslavia.

21. The Belgian delegation produced the most elaborate essay in justification, presenting the justification in the form of four elements (CR 99/15, pp 6-18).

First: reference is made to Security Council resolutions 1160 (1998), 1199 (1998) and 1203 (1998).

Second: it is asserted that armed humanitarian intervention is compatible with Article 2, paragraph 4, of the United Nations Charter. This provision reads as follows:

"4. 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."

In this context the Belgian argument is that Article 2, paragraph 4, only applies to interventions directed against the territorial integrity or political independence of the state in question (CR 99/15, p 16).

Third: certain historical episodes are invoked as precedents: the intervention of India in East Pakistan, the intervention of Tanzania in Uganda, and the intervention of West African States in Liberia and Sierra Leone.

Fourth: the state of necessity is invoked. (ibid, pp 17-18). This issue will be examined below, paras 99-100.

22. Four delegations failed to offer any clear legal justification. The references are as follows:

(ii) France : CR 99/17.

(iii) Italy : CR 99/19.

(iv) Portugal : CR 99/21.

23. Five delegations used the formula relating to the existence of a humanitarian catastrophe, though without giving the formula any distinct legal underpinnings. The references are as follows:

(ii) Netherlands : CR 99/20, p 14.

(iii) Spain : CR 99/22, p 8.

(iv) United Kingdom : CR 99/23, p 13.

(v) United States : CR 99/24, p 10.

24. Two delegations placed emphasis upon certain Security Council resolutions. The references are as follows:

(i) Belgium : CR 99/15, pp 7-9, 15-16.

(ii) United States : CR 99/24, p 10.

(f) Other Public Statements by NATO Ministers

25. In August this year the Foreign Minister of Italy made certain statements which constitute an admission that the military operations against Yugoslavia did not satisfy the criteria of legality. The report in the International Herald Tribune reads as follows:

"RIMINI, Italy—US intervention in Kosovo compensated for Europe's lack of political and military power, but NATO's action there raised questions about international legality, the Italian foreign minister, Lamberto Dini, remarked here Monday.

Speaking at an international relations forum in this Adriatic city, Mr Dini stressed that while the war had been fought for a just cause, the NATO action raised questions about how to ensure international legality in future, questions that Italy will put to the United Nations next month.

Mr Dini said that by intervening in the Balkans, NATO had overridden the old diplomatic principle that sovereignty came first, but a new code of practice and political discipline had yet to be established.

`NATO's responsibility has been extended to wider grounds,' he said `but how is this to be reconciled with the legitimacy of the United Nations?'

`The Italian government will make proposals in this regard to the United Nations General Assembly next month.' he announced."

IHT

(g) Press Statement by the Secretary-General of NATO on Military Action

26. On 23 March 1999 Dr Javier Solana, the Secretary-General of NATO, made the following press statement:

"Good evening, ladies and gentlemen,

I have just directed SACEUR, General Clark, to initiate air operations in the Federal Republic of Yugoslavia. I have taken this decision after extensive consultation in recent days with the Allies, and after it became clear that the final diplomatic effort of Ambassador Holbrooke in Belgrade has not met with success. All efforts to achieve a negotiated, political solution to the Kosovo crisis having failed, no alternative is open but to take military action.

Acceptance of the interim political settlement which has been negotiated at Rambouillet;

Full observance of limits on the Serb Army and Special Police Forces agreed on 25 October;

Ending of excessive and disproportionate use of force in Kosovo.

As we warned on the 30 January, failure to meet these demands would lead NATO to take whatever measures were necessary to avert a humanitarian catastrophe.

NATO has fully supported all relevant UN Security Council resolutions, the efforts of the OSCE, and those of the Contact Group. We deeply regret that these efforts did not succeed, due entirely to the intransigence of the FRY Government. This military action is intended to support the political aims of the international community. It will be directed towards disrupting the violent attacks being committed by the Serb Army and Special Police Forces and weakening their ability to cause further humanitarian catastrophe.

We wish thereby to support international efforts to secure Yugoslav agreement to an interim political settlement. As we have stated, a viable political settlement must be guaranteed by an international military presence. It remains open to the Yugoslav Government to show at any time that it is ready to meet the demands of the international community. I hope it will have the wisdom to do so.

At the same time, we are appealing to the Kosovar Albanians to remain firmly committed to the road to peace which they have chosen in Paris. We urge in particular Kosovar armed elements to refrain from provocative military action.

Let me be clear: NATO is not waging war against Yugoslavia.

We have no quarrel with the people of Yugoslavia who for too long have been isolated in Europe because of the policies of their government. Our objective is to prevent more human suffering and more repression and violence against the civil population of Kosovo. We must also act to prevent instability spreading in the region. NATO is united behind this course of action. We must halt the violence and bring an end to the humanitarian catastrophe now unfolding in Kosovo. We know the risks of action but we have all agreed that inaction brings even greater dangers. We will do what is necessary to bring stability to the region. We must stop an authoritarian regime from repressing its people in Europe at the end of the 20th Century. We have a moral duty to do so.

The responsibility is on our shoulders and we will fulfil it."

27. This statement places at least as much emphasis upon enforcing the acceptance of a political settlement as it does upon averting a humanitarian catastrophe. Moreover, the plans for phased air strikes had been laid the previous August. It can be seen that the Secretary-General makes no reference to legal considerations of any kind.

(h) Conclusions

28. The Governments of the NATO States have been generally consistent in their assertions that the action taken against Yugoslavia was legal. However, the various statements avoid giving any particulars relating to the legal framework. A further source of difficulty is the emphasis in some of the key Ministerial statements in the House of Commons and in the NATO statement of 23 March on the purpose of forcing the Yugoslav Government to accept the political "demands" of the Contact Group. It is not easy to reconcile the enforcement of the Rambouillet "Proposals" with the humanitarian motivation stressed in other statements.

29. The phrase "humanitarian catastrophè is anomalous: Why was the more normal phraseology—"humanitarian intervention"—generally avoided? The probable antecedent appears to be the reference to "extreme humanitarian need" and "risk of a serious humanitarian emergency" in statements by Mr Hurd, the Foreign Secretary, in 1992, concerning the air exclusion zone established by the Allies in southern Iraq with the stated purpose of protecting the Shiite population from aerial attacks. The references can be found in the British Year Book of International Law, Vol 63 (1992), pp 824-5.

30. A significant discussion took place in the House of Commons Foreign Affairs Committee on 2 December 1992. In the course of this the following exchanges took place with Mr Aust, Legal Counsellor, FCO:

"109. Would you go through the Chapter VII route on each and every occasion where you wanted to put UN military personnel on the ground?

Mr Hogg

Mr Aust

Later, the following questions were asked and answered:

142. Mr Aust referred earlier to a right under international law of humanitarian intervention as distinct from Chapter VII of the United Nations Charter. I wonder if you could elaborate on that. Is there a generally agreed definition of this right under international law?

Mr Aust

143. Are there any other precedents, apart from resolution 688?

Mr Aust

Parliamentary Papers

31. It will be noted that the Government is here espousing a "customary international law principle of humanitarian intervention" (see the first reply by Mr Aust). It is very difficult indeed to envisage what practice of States Mr Aust had in mind or which authorities supported his assessment. It may be recalled that Baroness Symons stated (on 16 November 1998) that "There is no general doctrine of humanitarian necessity in international law" (above, paragraph 15).

32. There is evidence that the actual views, as opposed to the publicly expressed views, of the NATO legal advisers were unfavourable to the action proposed. On 18 October 1998 the Financial Times published an interview with Richard Holbrooke, who was then engaged in threatening Yugoslavia with bombing if the Contact Group's demands were not met. The key passages in the interview are as follows:

"Brinkmanship is certainly a Holbrooke speciality. `It was a rollercoaster ride—a choice whether to bomb or not bomb,' he said this week.

He believes his record in Bosnia helped. `After the 1995 bombing, Mr Milosevic knows that when I talk of Nato bombs, it is serious,' he said.

Mr Holbrooke spreads the blame for delay widely—on the `lawyers in the Nato alliance' who said a specific Security Council resolution was necessary to give intervention a legal basis

Eventually, Nato got its act together, Javier Solana, its secretary general, argued the alliance could act on its own authority in humanitarian crises such as that afflicting Kosovo's refugees. Britain played its part in prodding other Europeans into taking a robust line, and Germany and Italy did not waver despite changes in their governments.

In the end, Nato did just as Mr Holbrooke wanted, putting its warplanes on stand-by for attack last Tuesday as he as returning to Belgrade for a final showdown with Mr Milosevic."

Financial Times

III. LEGAL JUSTIFICATIONS OF THE USE OF FORCE REFLECTED IN THE SOURCES OF INTERNATIONAL LAW(a) Introductory Remarks

33. A preliminary issue concerns the relation between the justifications as offered by the States conducting military operations against Yugoslavia and the more general question of the legality of the use of force in question. The character of the justifications offered by Members of NATO has been examined in the previous section, and certain eccentricities emerge from that examination. In the first place, the key official statements tend to avoid giving specific underpinnings to the assertions of legality and, secondly, the novel phrase "humanitarian catastrophè is employed rather than the more familiar term "humanitarian intervention".

34. In the present section the general question will be addressed, that is to say, whether the use of force against a state for humanitarian reasons is compatible with the principles of international law.

35. For the purposes of this enquiry issues of fact are left aside.

(b) The Existing Legal Regime of the United Nations Charter

36. The key provisions of the United Nations Charter are as follows:

Article 2

"The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles:

[.......]

3. All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. 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."

"Chapter VII

ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."

"Article 51

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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

37. The scheme of the Charter consists of giving a monopoly of the use of force to the Security Council, but providing for specific exceptions in the case of the right of individual or collective self-defence, in accordance with the provisions of Article 51.

38. Article 2 of the Charter prescribes the principles which bind both the Organization and its Members. It is sometimes argued that the phrase "against the territorial integrity or political independencè of any State in paragraph 4 of Article 2 can be given a restrictive meaning, which would permit forcible intervention provided this did not involve an annexation of territory.

39. The negotiating history is as follows. In Chapter II of the Dumbarton Oaks Proposals the fourth principle provided simply: "All members of the Organization shall refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the Organization". At San Francisco an Australian amendment introduced phraseology substantially identical with the final text of paragraph 4. A Brazilian amendment would have provided:

All members of the Organization shall refrain in their international relations from any intervention in the foreign or domestic affairs of any other member of the Organization, and from resorting to threats or use of force, if they are not in accord with the methods and decisions of the Organization. In the prohibition against intervention there shall be understood to be included any interference that threatens the national security of another member of the Organization, directly or indirectly threatens its territorial integrity, or involves the exercise of any excessively foreign influences on its destinies.

Ecuador wished to apply a paragraph to Chapter II in these terms:

The declaration that an attempt by a State against the territorial integrity or inviolability, against the sovereignty or political independence of another State, shall be considered as an act of aggression against all the States which constitute the International Community.

40. In the first Committee of Commission I and several delegates referred to the necessity of incorporating in Chapter II an express undertaking that the world Organization should insure the territorial integrity and political independence of member states. The Committee rejected the Brazilian amendment but adopted the Australian amendment which had been accepted by the drafting subcommittee. In the discussion the Norwegian Delegate express an opinion that "it should be made clear in the Report to the Commission that this paragraph 4 did not contemplate any use of force, outside of action by the Organization, going beyond individual or collective self-defense. He was himself in favour of omitting the specific phrase relating to "territorial integrity and political independencè since this was, on the one hand, a permanent obligation under international law and, on the other hand, could be said to be covered by the phrase "sovereign equality" as suggested in the commentary by the Rapporteur." There is no indication in the records that the phrase was intended to have a restrictive effect.

41. In the Commission Belaunde of Peru pointed out that paragraph one of Chapter II lacked any reference to the idea of the personality of the State but that the elements of personality had been incidentally inserted in paragraph 4 and that this did not establish absolute respect for sovereignty and territorial integrity. The Rapporteur of Committee I explained that paragraphs 1 and 4 protected the personality of the state as well as its territorial integrity and political independence. The Commission adopted paragraph 4 in the form proposed by Committee I.

42. The conclusion warranted by the travaux préparatoires is that the phrase under discussion was not intended to be restrictive but, on the contrary, to give more specific guarantees to small states and that it cannot be interpreted as having a qualifying effect. If it is asserted that the phrase may have a qualifying effect then writers making this assertion face the difficulty that it involves an admission that there is an ambiguity, and in such a case recourse may be had to travaux préparatoires, which reveal a meaning contrary to that asserted.

43. In the Seventh Edition of Oppenheim's International Law, Volume II, published in 1952, the distinguished editor, Sir Hersch Lauterpacht, explains the position thus:

"Neither is the obligation not to resort to force or threats of force limited by the words `against the territorial integrity or political independence of any State.' Territorial integrity, especially where coupled with `political independence' is synonymous with territorial inviolability. Thus a State would be acting in breach of its obligations under the Charter if it were to invade or commit an act of force within the territory of another State, in anticipation of an alleged impending attack or in order to obtain redress, without the intention of interfering permanently with the territorial integrity of that State. The prohibition of paragraph 4 is absolute except with regard to the use of force in fulfilment of the obligations to give effect to the Charter or in pursuance of action in self-defence consistently with the provision of Article 51 of the Charter discussed in the following section." (p 154)

44. The position was confirmed, 25 years later, in 1970, in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation. The Declaration provides evidence of the consensus among States on the meaning of the principles of the Charter. In particular, the Declaration confirmed:

The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter

No State or group of States has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

No state may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereignty rights and to secure from it advantages of any kind. Also, no State shall organize, assist, forment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.

The use of force to deprive people of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention.

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

Nothing in the foregoing paragraphs shall be construed as affecting the relevant provisions of the Charter relating to the maintenance of international peace and security."

45. The general legal regime of the Charter was affirmed by Professor Schwebel, a distinguished American expert, currently President of the International Court, in his Hague Academy lectures delivered in 1972 on "Aggression, Intervention and Self-defence in Modern International Law": Recueil des Cours, Vol II (1972), pp 413-97.

46. The basic principles of the legal regime relating to the use of force were also reaffirmed in the Definition of Aggression adopted by the General Assembly on 14 December 1974 (Res 3314 (XXIX)). Article 5 of the definition provides that:

"No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression."

47. There is no sufficient evidence of the existence of a legal right of States, whether acting individually or jointly, to use force for humanitarian purposes. The alleged right is not compatible with the United Nations Charter (see above). Thus it is not surprising that the sources of international law covering a period of 40 years fail to provide any substantial support for the legality of humanitarian intervention.

48. The relevant authorities will be reviewed in chronological order. Whilst the survey of opinion is not exhaustive, it is nonetheless fairly extensive and clearly represents the majority view.

49. Brownlie, International Law and the Use of Force by States, Oxford, 1963, pp 338-42. The writer's conclusion is as follows:

It must be admitted that humanitarian intervention has not been expressly condemned by either the League Covenant, the Kellogg-Briand Pact, or the United Nations Charter. Indeed, such intervention would not constitute resort to force as an instrument of national policy. It is necessary nevertheless to have regard to the general effect and the underlying assumptions of the juridical developments of the period since 1920. In particular it is extremely doubtful if this form of intervention has survived the express condemnations of intervention which have occurred in recent times or the general prohibition of resort to force to be found in the United Nations Charter.

50. Professor Schwebel, Hague Academy Lectures (1972).

In his substantial review of the subjects of aggression and intervention Professor Schwebel does not make a single reference to humanitarian intervention.

51. Brownlie, in Lillich (ed), Humanitarian Intervention and the United Nations, Charlottesville, 1973, pp 139-48.

The writer reaffirms the position first adopted in the monograph published in 1963.

52. Brownlie, in John Norton Moore (ed), Law and Civil War in the Modern World, Baltimore and London, 1974, pp 217-28.

The writer maintains his earlier analysis.

53. Verdross and Simma, Universelles Volkerrecht : Theorie and Praxis, Berlin, 1976, pp 237-51, 584.

This is a standard work in German.

54. Jimenez de Arechaga, Recueil des Cours, Hague Academy, Vol I (1978), pp 86-116.

This detailed survey of the legal regime relating to the use of force by States clearly excludes the legality of humanitarian intervention. Professor Jimenez de Arechaga is a distinguished representative of Latin-American expertise and was President of the International Court of Justice, 1976-9, having served on the Court since 1970.

55. Akehurst, in Bull (ed), Intervention in World Politics, Oxford, 1984, pp 95-118.

Professor Akehurst considers that the evidence indicates clearly that humanitarian intervention is incompatible with international law.

56. Professor Schachter, Michigan Law Review, Vol 82 (1984), pp 1620-46 at p 1629.

In 1984 Professor Oscar Schachter expressed the following opinion:

"Nonetheless, governments by and large (and most jurists) would not assert a right to forcible intervention to protect the nationals of another country from the atrocities carried out in that country. An exception was the intervention of Indian troops to protect Bengalis in East Pakistan during the 1971 civil war in Pakistan. India's ethnic links and the refugee influx into its own territory, as well as hostility toward Pakistan, were factors influencing its military intervention. It is interesting that despite considerable sympathy for the oppressed Bengalis, a large number of the UN General Assembly called on India to withdraw is forces.

The reluctance of governments to legitimize foreign invasion in the interest of humanitarianism is understandable in the light of past abuses by powerful states. States strong enough to intervene and sufficiently interested in doing so tend to have political motives. They have a strong temptation to impose a political solution in their own national interest. Most governments are acutely sensitive to this danger and show no disposition to open article 2(4) up to a broad exception for humanitarian intervention by means of armed force."

57. Podesta Costa and Jose Maria Ruda, Derecho Internacional Publico, Vol 2, Buenos Aires, 1985, pp 475-80.

This leading Latin-American work makes no reference to a right of humanitarian intervention.

58. British Foreign Office (Foreign Policy Document No 148): British Year Book of Int.Law, Vol 57 (1986).

The key passage reads thus:

"11.22. In fact, the best case that can be made in support of humanitarian intervention is that it cannot be said to be unambiguously illegal. To make that case, it is necessary to demonstrate, in particular by reference to Article 1(3) of the UN Charter, which includes the promotion and encouragement of respect for human rights as one of the Purposes of the United Nations, that paragraphs 7 and 4 of Article 2 do not apply in cases of flagrant violations of human rights. But the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention, for three main reasons: first, the UN Charter and the corpus of modern international law do not seem specifically to incorporate such a right; secondly, state practice in the past two centuries, and especially since 1945, at best provides only a handful of genuine cases of humanitarian intervention, and, on most assessments, none at all; and finally, on prudential grounds, that the scope of abusing such a right argues strongly against its creation. As Akehurst argues, `claims by some states that they are entitled to use force to prevent violations of human rights may make other states reluctant to accept legal obligations concerning human rights'. In essence, therefore, the case against making humanitarian intervention an exception to the principle of non-intervention is that its doubtful benefits would be heavily outweighed by its costs in terms of respect for international law." (footnote omitted) (p 614 at p 619)

59. Brownlie, in Cassese (ed), The Current Legal Regulation of the Use of Force, Dordrecht, 1986, pp 491-504, at p 500.

The writer evaluated the concept of humanitarian intervention in these passages:

"Beyond the various controversies related to the concept of self-defence lies the issue of humanitarian intervention, which attracted some attention in the literature in the early 1970s. There is little or no reason to believe that humanitarian intervention is lawful within the régime of the Charter. The concept is distinct from that of protection of nationals, although in functional terms there is clearly an overlap. There is virtually no modern State practice to support the thesis that such a right exists. The Stanleyville operation of 1964 is invoked as a precedent by advocates of the right, but in fact the Congolese Government had consented to the operation and thus it was based on the title of consent given by the territorial sovereign. In the case of the intervention in the Dominican Republic in 1965, also cited in this context, no reference was made to humanitarian action as a legal justification.

The policy behind the concept of humanitarian intervention calls for careful examination. The very idea of the use of force within the territory of another State for humanitarian purposes involves an obvious paradox. In most conditions what will be involved is a major military operation in inhabited areas with concomitant risks to the civilian population. No warning will be given and there will be little chance of the evacuation of civilians from the combat zone.

Unlike the case of self-defence, there is no consensus on the conditions in which humanitarian intervention would be justified. Moreover, the political reality is to be faced. The use of force by way of humanitarian intervention would undoubtedly follow the pattern of non-forcible sanctions by States on the basis of a policy of protecting human rights standards. The indications provided by the pattern of such non-forcible sanctions are not encouraging. Double standards are rampant. On the index of human rights policies followed by those powers able to impose `sanctions', humanitarian intervention would be highly selective and nearly always dictated by political and strategic interest. The major powers will not intervene in their political allies, except when a threatened or actual change of regime endangers their political interests. Humanitarian intervention will be in practice be oldfashioned hegemonial intervention." (at p 500; footnotes omitted)

The writer believes that this assessment remains valid to-day.

60. Pastor Ridruejo, Curso de Derecho Internacional Publico, 2nd ed, Madrid, 1987 pp 577-84 (para 64.2).

The writer was formerly legal adviser to the Spanish Foreign Ministry. In his opinion humanitarian intervention is incompatible with the existing legal regime (at pp 579-80).

61. Professor Yoram Dinstein, War, Aggression and Self-Defence, Cambridge, 1988, p 89

Writing in 1988 Professor Dinstein concluded that:

"Nothing in the Charter substantiates the right of one State to use force against another under the guise of ensuring the implementation of human rights." (ibid, p 89).

62. Professor Randelzhofer, in Simma (ed), The Charter of the United Nations, A Commentary, Oxford, 1994, pp 123-4.

Professor Randelzhofer considers that there is no room for the concept of humanitarian intervention either in the Charter or in customary law. The footnotes contain extensive references to the literature.

63. Shearer, Starke's International Law, Eleventh edition, London, 1994, p 94-8.

In a full discussion of the permissible forms of intervention, no reference is made to humanitarian intervention.

64. Diez de Velasco, Las Organizaciones internacionales, 9th ed, Madrid, 1995, pp 152-55, 159-60.

This distinguished Spanish expert insists on the significance of Article 2, paragraph 4, and regards humanitarian intervention as illegal except when it is authorised by the Security Council (at p 160).

65. Conforti, The Law and Practice of the United Nations, The Hague, 1996, pp 176-7.

This distinguished Italian authority expresses himself as follows:

"Article 51 restricts, without possibility of misunderstanding, the use of force in self-defence to the very specific case of the reaction to an armed attack, that is, of an attack that has already been launched by one State (with regular forces, or, under the above-cited 1974 Declaration on the definition of aggression, with irregulars or mercenaries of equivalence strength) against another State. Only in this case could an act of self-defence not be considered as a threat to the peace or breach of the peace for purposes of the application of enforcement measures.

The views that self-defence would justify preventive attacks, or attacks aimed at saving human lives (attacks with humanitarian purposes) or at counteracting States encouraging terrorism (for example, the bombing of Libya by the United States in 1986) or illegal drug traffic (the invasion of Panama by the United States in 1989 and the resulting removal of General Noriega), have no basis in the Charter. The prohibition of the use of force, in fact, is expressed by Article 2, para 4, in a way such as not to tolerate exceptions beyond the ones in Article 51. Moreover, at San Francisco, the absolute character of the prohibition of the use of force was clearly confirmed, apart from the exceptions provided by other rules of the Charter (see UNCIO, Vol 6, p 334, and 400) . . ."

66. Malanczuk, Akehurst's Modern Introduction to International Law, Seventh revised ed, London, 1997, p 221.

The learned editor expresses the following view:

Nicaragua v USA

Professor Malanczuk is the author of a monograph entitled Humanitarian Intervention and the Legitimacy of the Use of Force, 1993.

67. Antonopoulos, The Unilateral Use of Force by States in International Law, Athens, 1997, pp 452-75.

Dr Antonopoulos presents a considerable quantity of evidence for the view that humanitarian intervention is not compatible with contemporary international law.

68. Brownlie, The Rule of Law in International Affairs, The Hague, 1998, pp 206-9.

This rehearses the writer's views with particular reference to the US intervention in Panama.

69. Judge Caminos, Hague Academy, Recueil des cours, Vol 273 (1998), p 113 at p 235.

In the conclusion to his lectures on the role of OAS in the promotion of democratic governance, the distinguished Argentinian lawyer states that humanitarian intervention is prohibited under existing international law.

70. Professor Bruno Simma, writing in the European Journal of International Law, Vol 10 (1999), pp 1-22, regards the use of force for humanitarian purposes as incompatible with the UN Charter in the absence of the authorisation of the Security Council. Professor Simma reaches the following conclusions:

"This article has attempted to demonstrate that, while the threat of armed force employed by NATO against the FRY in the Kosovo crisis since the fall of 1998 is illegal due to the lack of a Security Council authorization, the Alliance made every effort to get as close to legality as possible by, first, following the thrust of, and linking its efforts to, the Council resolutions which did exist and second, characterizing its action as an urgent measure to avert even greater humanitarian catastrophes in Kosovo, taken in a state of humanitarian necessity.

ad hoc

ultima ratio

(d) Conclusion on the Sources of International Law

71. The legal position is based upon the provisions of the United Nations Charter, together with relevant subsequent practice. The careful wording of Article 2, paragraph 4, was precisely intended to allay the concerns of small States, in light of the experience in the pre-war period both in Europe and in Latin America. And in Europe especially, Hitler had adopted the practice of using the treatment of minorities as an excuse for military intervention and subversion.

72. The works quoted above represent the considered opinion on the issue of 18 authorities. Only those writers with recognised professional standing have been included. They represent 12 nationalities. Three authors (Schwebel, Jimenez de Arechaga and Ruda) have been President of the International Court of Justice.

73. Only a minority among international lawyers have adopted the view that humanitarian intervention is lawful. The leading authorities may be cited as the more senior members of this minority. Professor Thomas Franck has expressed the following carefully conditional opinion on the subject:

Recueil des cours

74. Judge Rosalyn Higgins has produced an extended examination of the issues, which deserves to be quoted in full:

"Under contemporary international law, may a State militarily intervene in another territory to rescue citizens under threat? Under customary international law, such activity was widely tolerated. But is it still allowed under the Charter? Let us examine the legal and policy issues.

Even minor military incursions are unlawful uses of force. It is quite clear, from the practice under the Charter and otherwise, that the Charter law does not simply prohibit major clashes between entire armies, while allowing smaller scale military interventions. Attacks by single planes, for example, are as much a violation of Article 2(4) as would be an attack by a squadron. And it is not really feasible to engage in a rescue operation of threatened nationals without engaging in some use of force, which is prohibited by the terms of Article 2(4).

But does that dispose of the matter? There are several reasons for thinking that it does not. First, what Article 2(4) prohibits is the use of force against the territorial integrity or political independence of a State, or in any other manner inconsistent with the purposes of the United Nations. It can easily be seen that even a single plan attacking a country is a use of force against its territorial integrity. But is the answer so clear when the military intervention is not an attack on the State as such, but an operation simply designed to be able to rescue and remove one's threatened citizens? Is that really a use of violation of sovereignty—in the same way as a civilian aircraft which enters airspace without permission will surely be violating sovereignty—but still not attacking the State or its territorial integrity? It would seem that hostile intent, coupled with military activity against the State (and beyond the minimum needed for the rescue), is what would distinguish a violation of sovereignty from an attack upon a State's territorial integrity.

If we can satisfy ourselves that humanitarian intervention does not violate the prohibition against the use of force against a State's territorial integrity, then we can feel fairly confident that no other prohibition in Article 2(4) is being violated. A military action to end a hijacking, for example, would not be force against a State's political independence (unless it was intended to overthrow the Government), and nor would it seem to be contrary to the purposes of the Charter, being directed towards the preservation of human life.

There is a different way of looking at the whole question—instead of looking to see whether a humanitarian intervention violates Article 2(4), looking instead at the permitted use of force under Article 51. That approach focuses rather on self-defence, and brings us back to the question of harm to one's nationals and self-defence. It is very similar to, but not quite the same as, the question we asked ourselves before. Instead of saying: `Is an attack on a foreign citizen an attack on the State, which therefore entitles self-defence?' the question is the simpler one of whether a State can claim that military action to rescue one's citizens is an exercise of self-defence. Again, cautious support has sometimes been offered for this view. Professor Sir Humphrey Waldock (later Judge Waldock), giving this General Course in 1952 said that a State could use force to rescue nationals `as an aspect of self-defence', if the threat of injury was imminent, if there was a failure or inability on the part of the territorial sovereign to protect them, and if the measures of protection were strictly confined to the object of protecting them. These criteria would all seem to have been met in the Entebbe situation. There an Israeli civilian airliner was hijacked to Entebbe; the then President, Adi Amin, far from endeavouring to negotiate the safe release of the passengers, provided further arms for the hijackers and ominously separated the Jewish from the non-Jewish passengers. The dangers seemed extremely imminent and the rescue operation was directed only to procuring the safety of the passengers.

The following may be noted: a claim of humanitarian intervention based on self-defence could only be advanced in respect of nationals, because it is predicated on the argument that the State is being harmed through injury to its nationals, and can therefore respond in self-defence. But a claim of humanitarian intervention based on the argument that no violation of Article 2(4) is entailed, would not logically be limited to the protection of one's own nationals. Either Article 2(4) is or is not violated by such activity—but nothing turns upon whether those being rescued are nationals or not.

Tehran Hostages

a priori

Recueil des cours,

75. These two prognoses invite a number of comments. First of all, they do not reflect the clear text of the UN Charter and, more significantly, do not reflect the views of the majority of States. Secondly, they are contradicted by the majority of authoritative experts. Thirdly, the assessment by Franck (in 1993) is tentative: "A modern customary law of humanitarian intervention is beginning to take form . . ." and he refers to "an emerging normative practicè.

76. Most importantly, the paradigm cases envisaged by both Franck and Higgins are totally unrelated to the circumstances of the military operations against Yugoslavia, which involved intense bombing of populated areas throughout Yugoslavia for 78 days.

77. It should be pointed out that there are other proponents of humanitarian intervention, including the following:

Droit international public

Law and Civil War in the Modern World

Humanitarian Interventions and the United Nations,

American Journal of IL

Curso de derecho internacional publico

78. The proponents of humanitarian intervention are distinctly in a minority. More significant, however, is the position in customary international law, which depends upon the practice of States based upon opinio juris, that is to say, a belief that the action is in accordance with international law. There can be no doubt that the United Nations Charter can be modified by the congruent practice of the Member States crystallising as a new principle of customary law. But there is a burden of proof upon proponents of a change in the customary law. The central point is the absence of evidence of a change of view by a majority of States. The assertions of legality made by the British and other Governments in relation to the military operations against Yugoslavia were unaccompanied by any particulars of supporting State practice.

79. The experts who support the legality of humanitarian intervention do not provide even incipiently convincing evidence of State practice in support. Professor Franck refers to the customary law "beginning to take form" (in 1993). Judge Higgins refers to three episodes. The first is the Belgian and French interventions in Stanleyville in 1963. The difficulty with this episode is that the Government in Zaire gave its consent. The second episode invoked is the United States intervention in Grenada in 1983. This is an odd precedent. Various States, including Canada, had nationals on the island but they were not consulted. The reasons publicly advanced by the United Kingdom Government in relation to Grenada did not include a reference to humanitarian intervention: British Year Book of IL, Vol 54 (1983), pp 376-7, 405-6, 528-9. The Entebbe rescue operation of 1976 is rarely invoked as a precedent. Professor Dinstein places it within the category of self-defence (op cit, pp 213-15).The attitude of States generally, as revealed in the Security Council debate at the time, either took the form of criticism on legal grounds or, in some cases, a waiver of illegality.

80. In conclusion, there is very little evidence to support assertions that a new principle of customary law legitimating humanitarian intervention has crystallised.

IV. THE ROLE OF THE SECURITY COUNCIL

81. It is generally accepted among international lawyers that action can be taken against a State for humanitarian purposes with the authorisation of the Security Council by virtue of Chapter VII of the Charter. This is the recognised means of conferring legitimacy and community approval upon action for humanitarian purposes.

82. In the present context it is a matter of public knowledge that the principal actors within NATO avoided seeking the authority of the Council precisely because it was expected that two Permanent Members would produce negative votes.

83. It is clear that the action which was launched on 24 March 1999 was not authorised expressly by any SC Resolution. Nevertheless, some delegations (Belgium and the United States) invoked certain SC Resolutions on the basis that they provided some implicit or indirect authority for the action.

84. Those assertions are not very plausible. Four Resolutions are involved. Resolution 1160 (1998), emphasises the need for a "peaceful resolution" of the crisis in Kosovo (paragraphs 7 and 19). There is no language justifying the use of force. Resolution 1199 (1998) similarly contains no language referring to the use of force. Resolution 1203 (1998) repeats the substance of Resolutions 1160 and 1199. Resolution 1207 (1998) also contains no language justifying the use of force.

85. There was a further and highly significant involvement of the Security Council in the Kosovo crisis. After a period of intensive diplomacy and the cessation of the bombing, the resulting political settlement was embodied in Security Council Resolution 1244/1999 on 10 June 1999. The substance of the resolution is not generally in issue for present purposes. The question the lawyer would raise is whether the resolution has given legitimacy to the use of force against Yugoslavia.

86. The text of the resolution does not provide any indications that the air operations against Yugoslavia were lawful and it may be assumed that Russian support for the resolution would not have been forthcoming if there had been such indications. The Security Council was acting by virtue of Chapter VII of the Charter. The political bases of the resolution are provided by the two sets of principles accepted by the Yugoslav Government: see Annexes 1 and 2 of the Resolution. The text of the Resolution makes no reference either to the recent armed conflict or to the termination of the air operations in Yugoslavia. There are, however, certain references (in the Annexes) to the "withdrawal from Kosovo of military, police and paramilitary forces".

87. The action begun on 24 March 1999 was not authorised by any Security Council resolution: see above, paragraph 82. The post-war resolution adopted on 10 June did not provide any retroactive legitimacy. Consequently, the bombing of Yugoslavia did not fall within any of the generally recognised exceptions to the principle prohibiting the threat or use of force stipulated in Article 2, paragraph 4, of the United Nations Charter.

V. THE LEGAL SIGNIFICANCE OF THE RAMBOUILLET PROPOSALS

88. It is not the writers brief to examine the political history of the crisis, but an efficient examination of the legal issues must involve some reference to the documents often described as the Rambouillet Accords. The "Rambouillet Accords" form part of the picture because, especially in the statements of British Ministers, a major justification for the threat of force (in the first instance) and the aerial bombardment (subsequently, to fulfil the threats of force) was to induce Yugoslavia to accept the "demands" of the Contact Group: see above, para 10.

89. The reference by the Government to the "Rambouillet Accords" is in a significant sense anomalous. Two facts stand out from what was a complex picture. First the NATO bombing apparatus was placed in a state of readiness, announced as such, on 12 October 1998. Thus there was a direct link between the threat of air strikes and the demands made upon Yugoslavia. Mr Cook's statements on 19 October made this clear. In his words:

"By late July, the Yugoslav army and the Ministry of Interior police had commenced a widespread campaign of repression throughout Kosovo. During that campaign, they made no distinction between armed guerillas and unarmed civilians. Whole villages were shelled, crops were burnt in the field and farm animals were incinerated in their barns. A quarter of a million people—a tenth of the entire population-have become refugees.

In September, Britain and France presented to the Security Council resolution 1199, which demanded that President Milosevic cease fire; withdraw his security forces; allow refugees to return to their villages, and make a rapid start in real negotiations on self-government for Kosovo.

Two weeks ago, Britain chaired a meeting of the contact group at Heathrow. That meeting sent Dick Holbrooke back to Belgrade with a mandate from all members of the contact group, including Russia, to secure an agreement that complied with the demands of the Security Council resolution.

Last Monday, NATO unanimously took the decision to authorise air strikes on Serbian military targets. The next day, President Milosevic gave his agreement to Dick Holbrooke on a settlement that commits Yugoslavia to full compliance with resolution 1199.

There can be no Member of the House who imagines that President Milosevic would have made such a commitment if the diplomatic efforts backed by the contact group had not also been backed by the credible threat of military action by NATO. His draconian steps to close the independent press to prevent it from reporting the agreements in full underlines his dislike of being forced into them".—(Commons 19 October, col 953).

90. It was in these conditions that President Milosevic is alleged to have made a "commitment" on 13 October 1998. And so the second fact which stands out is that any agreement within that factual frame would have been made under massive coercion.

91. Article 52 of the Vienna Convention of the Law of Treaties provides as follows:

"Coercion of a State by the threat or use of force.

A treaty is void if its conclusion has been procured by the threat of use of force in violation of the principles of international law embodied in the Charter of the United Nations".

92. What eventually emerged, after further "negotiations" and continuing threats of force, was the draft Interim Agreement for Peace and Self-government in Kosovo, which was drawn up without the participation of Yugoslavia. The draft surfaced in February when Yugoslavia was summoned to talks. It was made clear during the discussions that the Yugoslav side would not be permitted to make amendments to the Draft Agreement. In the event the Federal Republic of Yugoslavia refused to sign. Thus no Agreement was concluded and the "Rambouillet Accord" constituted a set of proposals and nothing more.

93. It must be pointed out that, even if Yugoslavia had at this juncture accepted the Interim Agreement, such acceptance would have been voidable as a result of the element of coercion.

94. It is worth noting one aspect of the Rambouillet Draft which in itself would have deterred acceptance by a responsible Government. Paragraph 8 of Appendix B of the Rambouillet Draft of 23 February 1999 reads as follows:

"NATO personnel shall enjoy, together with their vehicles, vessels, aircraft and equipment, free and unrestricted passage and unimpeded access throughout the Federal Republic of Yugoslavia (not only Kosovo) including associated airspace and territorial waters. This shall include, but not be limited to, the right of bivouac, maneuver, billet and utilisation of any areas or facilities as required for support, training, and operations".

95. In conclusion, five related points may be made about the "Rambouillet Accords".

First: the process of "negotiation" was not in conformity with the normal standards of genuine negotiations leading to real agreement.

Second: in any event Yugoslavia did not accept the Draft proposed, apparently, on a "take it or leave it" basis.

Third: the "negotiations" took place a short time after the NATO Council decision on 30 January 1999 to authorise air strikes against targets in Yugoslavia: House of Commons, 4 February 1999, col 742 (Mr Robertson).

Fourth: the enforcement of the Rambouillet proposals by means of threats of aerial bombardment is clearly illegal under contemporary international law.

Fifth: the British Government has pleaded the enforced acceptance of the Rambouillet proposal in parallel with the invocation of humanitarian action but it is difficult to reconcile the two purposes.

VI. THE CHRONOLOGY OF THE PROCESS OF COERCION BASED ON THREATS OF AIR STRIKES

96. The onset of the air strikes on the territory of Yugoslavia on 24 March 1999 is to be understood in the framework of the sequence of NATO threats of bombing which began in October 1998 with the visit of Mr Holbrooke to Belgrade.

97. The sequence of connected events was as follows:

28 August 1998. Internal NATO decision to use air strikes if necessary.

23 September 1998. SC resolution imposes a ceasefire in Kosovo.

12 October 1998. NATO authorises air strikes on military targets in Yugoslavia.

19 October 1998. The order authorising air strikes is extended.

30 January 1999. The NATO Council agreed that the Secretary-General could authorise air strikes.

February 1999. Talks take place at Rambouillet.

98. The threats of bombing were no more legal than the eventual air strikes. It is clear that the threats made in October, and which were then extended at various junctures, had the major purpose of imposing a political settlement on the Yugoslav Government. Moreover, the nature of the targeting indicated other general political aims. The point which emerges is that, when the bombing started on 24 March, the long announced political purposes were operating in parallel with the humanitarian motives (which, for the sake of the argument, are assumed to be genuine).

VII. DID THE NATO ACTION CONSTITUTE HUMANITARIAN INTERVENTION ON THE FACTS?(a) The General Character of the Military Operations

99. It has been pointed out already that the legal analysis cannot be divorced from the facts. Thus, in order to round out the analysis, the question to be approached is: on the assumption that humanitarian intervention is lawful, did the military operations commenced on 24 March this year constitute humanitarian intervention?

100. In the submission of the writer there is a series of major considerations which, taken together, disqualify the action as having a humanitarian character. These considerations are as follows:

101. The bombing campaign which began on 24 March occurred against the background of a five month period of negotiations under persistent (and illegal) threats of the massive use of force against Yugoslavia, the content of which related to the constitutional status of a part of Yugoslavia. When the negotiations failed, the bombing campaign was primarily concerned with a coercive and punitive purpose related to the original political demands, and the repeated threats of violence.

102. The modalities selected disqualify the mission as a humanitarian one. Bombing the populated areas of Yugoslavia, using high performance ordnance and anti-personnel weapons, has nothing in common with humanitarian intervention. Moreover, bombing from a height of 15,000 feet endangers civilians and this operational mode is intended to prevent risks to combat personnel. The population of Yugoslavia was subjected to inhumane treatment and punishment for political reasons. Some groups of civilians, including television personnel were deliberately targeted. The selection of a bombing campaign is disproportionate to the declared aims of the action. The pattern of targets and the geographical extent of the bombing indicates broad political purposes unrelated to humanitarian issues. During the conflict NATO statements indicated the general purpose of forcing the population to overthrow the Government. A blitz with high explosives, which was intended in part to put pressure on the population and which lasted 78 days, has nothing in common with humanitarian intervention.

(b) The Model Proposed by Exponents of Humanitarian Intervention

103. And there is a further aspect. If the views of the exponents of humanitarian intervention are studied, it becomes clear that they did not envisage anything like the NATO bombing of the populated areas of Yugoslavia, the destruction of the civilian infrastructure and the use of prohibited weapons. Thus, Professor Verwey, writing in 1986, proposed the following model. In his words:

"Thus, it could be established, by means of a GA Resolution, that every State or group of States claiming to get or be involved in an act of humanitarian intervention shall be prepared and able to submit convincing evidence to the UN, if possible prior but if necessary subsequent to the intervention, that the following conditions of legality are met:

(1) it has a `relative disinterest' in the situation, in the sense that its overriding motive is the protection of human rights, without important motives of a political or other selfish nature being involved;

(2) there is an emergency situation, in which fundamental human rights of a non-political nature, in particular the right to life, are (about to be) violated on a massive scale;

(3) only a last-resort armed intervention can save the (potential) victims, after all peaceful efforts have failed;

(4) action by the UN has proved to be ineffectual, or—as the case may be—cannot be awaited;

(5) the impact upon the authority structure of the target State is confined to a minimum, ie only to the extent necessary for the purposes of the rescue operation;

(6) the magnitude of military involvement is proportionate to the requirements of the rescue operation.

And even so, in a nuclear era and in a world in which virtually all conflicts are politicised, its is necessary to demand in addition that resort to humanitarian intervention should be taken only with the greatest reserve, in particular by the Great Powers or in situations which Great Power rivalry may be expected. Therefore, and most important, the intervenor should also be required to make it plausible that

The Current Legal Regulations of the Use of Force

VIII. THE RELATED PROCEEDINGS BEFORE THE INTERNATIONAL COURT OF JUSTICE (FEDERAL REPUBLIC OF YUGOSLAVIA V. BELGIUM AND OTHER CASES AGAINST NATO STATES).

104. The International Court of Justice was established by the United Nations Charter in 1945 and sits in permanent session at The Hague. The function of the Court, composed of fifteen judges drawn from the principal legal systems of the world, is to adjudicate in disputes between states in accordance with international law, broadly international customary law, the United Nations Charter and other international treaties. Only states can be parties to disputes before the Court, (whereas other tribunals such as the European Court of Human Rights allow complaints by individuals against their own or other governments) and states must consent to the jurisdiction of the Court. Some 62 states, including a substantial number of European and Commonwealth states, have made formal declarations accepting the compulsory jurisdiction of the court. Since 1946 the International Court has heard over seventy cases, and compliance with its judgments, with very few exceptions has been complete.

105. The United Kingdom, as a permanent member of the Security Council has the automatic right to nominate a British national for election to the court. The present UK judge is HE Judge Rosalyn Higgins.

106. Of the permanent members, the UK has an unparalleled record of support for the court; three out of five UK judges have served as President, UK nationals as court officials and members of the English bar regularly appear as advocates on behalf of their own, and other, states. The UK has made a declaration (subject to certain conditions) accepting the compulsory jurisdiction of the court, and this remains in force. The cases in which the UK has been a party include the Corfu Channel case (1947-9) (UK claim for compensation against Albania), Fisheries (1948-51), (UK v Norway), Fisheries Jurisdiction (1972-74) (UK v Iceland) and Interpretation of the 1971 Montreal Convention (Libya v UK) (1992- ).

107. On 29 April 1999 the Federal Republic of Yugoslavia began proceedings in the court against the UK and nine other NATO states, requesting interim measures of protection (a halt to the bombing) a declaration on the illegality of the use of force, and compensation. All the Respondent NATO states were represented in the oral proceedings (relating exclusively to interim measures) in The Hague, the UK delegation being led by the then Attorney-General. The Court, for technical reasons deriving from the Yugoslav declaration of acceptance of the Court's jurisdiction declined the relief sought, but remains seised of the substantive issues. At this date, Yugoslavia has until January 2000 to present written pleadings, followed by the Respondent States.

IX. THE LEGALITY OF THE NATO ACTION IN RELATION TO THE NORTH ATLANTIC TREATY

108. It is difficult to reconcile the purposes and actions of the NATO Members in respect of Yugoslavia with the following provisions of the North Atlantic Treaty:

"Article 1

The Parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security, and justice, are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations".

"Article 7

This Treaty does not affect, and shall not be interpreted as affecting, in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security".

109. It is true that, if the Organisation were a "regional arrangement" for the purposes of the UN Charter, it would have broader powers, not confined to action in collective self-defence in response to an armed attack against one or more Members (Article 5). However, the Organisation and its Members have always insisted that it does not qualify as a regional arrangement, no doubt because the Security Council has a degree of control over any enforcement action taken under regional arrangements (Article 53 of the UN Charter).

110. These observations are to an extent academic. The legality of the operations as against Yugoslavia is not conditional upon the provisions of the North Atlantic Treaty. The NATO Council and Military Command Structure played the role of agents for the group of States which planned the operations. NATO's relevance was essentially political and operational.

X. THE LEGAL RELEVANCE OF USING THE NATO MILITARY COMMAND STRUCTURE

111. The military operations against Yugoslavia were to be carried out by means of the NATO Military Command Structure. This was announced in the Commons on 24 February 1999 by Mr Cook. The legal complexities will not be elaborated upon at length. However, one point stands out. The operation was a joint enterprise, politically and legally. As a matter of legal principle, it would follow that each Member State would be responsible, jointly and severally, for the actions of the other States.

112. In this framework, participation in the joint planning and authorisation by way of the NATO Council would generate responsibility of all participating States, irrespective of the number of missions actually flown. Such joint responsibility would be relevant in the context of the duty to compensate Yugoslavia for the losses of life, injuries, and damage inflicted. It would also be relevant to the responsibility of individuals for the commission of war crimes and crimes against humanity.

XI. THE ARMED CONFLICT AND THIRD STATES

113. In the case of an armed conflict between States, the position of neutral third States inevitably has to be considered. In the case of an enforcement action authorised by the Security Council by virtue of Chapter VII of the Charter, the Council may call on Members to apply various measures not involving the use of armed force to give effect to its decisions (Article 41 of the UN Charter).

114. The air operations against Yugoslavia were not authorised by the Security Council and third States had no duties to assist. Indeed, for a number of reasons, third States had substantial grounds for regarding the action as an unjustified attack on a sovereign State. Of equal, if not greater significance, is the fact that it was not accepted by the NATO States that a state of war existed. The legal status of the action remains obscure.

115. In these circumstances, it was impossible to expect Russia or other third States to respect a naval blockade of the Yugoslav port of Bar. In the event the NATO Governments appear to have applied a regime of visit and search, but without the use of force to stop merchant vessels: International Herald Tribune, 27 April 1999; The Times (London), 27 April 1999.

XII. THE HUMANITARIAN LAW OF ARMED CONFLICT

116. It is not possible to deal with the issues of what used to be called "the law of war". The writer is not in possession of the data necessary for an adequate treatment of the law and facts. The International Committee of the Red Cross has produced a number of statements (not seen by the writer) relating to targeting policies adopted during the aerial bombardment of Yugoslav cities. Controversial aspects of targeting policies (to say the least) included the use of cluster bombs in non-combat situations, a clear attempt to murder the Head of State, and the deliberate targeting of television studios.

117. The writer will offer some provisional assessments relating to the outstanding features of the hostilities. The application of the humanitarian law of armed conflict to the operations against Yugoslavia is very difficult because the situation was anomalous in several major respects. First, there was no armed conflict between two sides; rather there was a one-sided aerial bombardment with bombs and missiles. Secondly, the measures had the specialised purpose of carrying out threats of air strikes, threats which had started six months before, and which being unsuccessful, were eventually implemented. Few wars are fought on such a basis. Thirdly, given the eccentric purposes of the air strikes, it is very difficult to apply the normal concepts of military objectives and the tolerable risk of collateral damage to civilians and civilian targets.

118. The difficulties can be indicated by listing the purposes of the attack on Yugoslavia which emerged from statements of Ministers, NATO briefings, and the statements to the press of General Wesley Clark. The purposes referred to on various occasions both before and during the bombardment of the whole of Yugoslavia were the following:

(a) By implication from the threats issued prior to the action, the purpose of the action was to punish the Yugoslav Government for refusing to be intimidated.

(b) A second purpose, obviously closely related to the first, was to coerce Yugoslavia into acceptance of the "demands" of the Contact Group, which reflected the Rambouillet proposals.

(c) A third purpose, formulated in the course of the campaign, was, by inflicting trauma and the expected deprivation resulting from damage to the infra-structure caused by the heavy air raids, to induce the population to change the elected Government of Yugoslavia.

(d) With other forms of political warfare, to induce the secession of Montenegro.

(e) To inflict extensive damage upon the Yugoslav economy as a whole for reasons connected with a long-term geopolitical agenda for the Balkans.

(f) To seek to murder the Head of State.

119. The official NATO position was, of course, that the purpose of the bombing was to prevent a humanitarian catastrophe. It is impossible to reconcile this assertion with the other war aims as defined in official statements. The threats of air strikes were planned alongside the long-term NATO programme to change the status of Kosovo and Metohija without the consent of the Government of Yugoslavia.

120. Against this background, how can one apply the concept of military objective. There was no conflict on the ground. Is it lawful to destroy even military objectives simply with the purpose of coercing the State into accepting a set of proposals? The bombing of oil refineries could not involve military objectives because nowhere in Yugoslavia were NATO troops on the ground and in a position to benefit from the destruction of fuel sources. NATO official statements were very frank in indicating that the purpose of the targeting policy was to cause hardship to the civilian population.

XII. GENERAL CONSIDERATIONS OF INTERNATIONAL PUBLIC ORDER

121. The crisis in Kosovo originated in the deliberate formenting of civil strife in Kosovo and the subsequent intervention by NATO States in the civil war. In such conditions those States responsible for the civil strife and the intervention are estopped from pleading humanitarian purposes.

122. In this context it is relevant to recall that the International Law Commission draft of 1980 on State Responsibility provides in Article 33 (in material part) that:

(2) In any case, a state of necessity may not be invoked by a State as ground for precluding wrongfulness:

(Yearbook, ILC, 1980, Vol 11 (part Two), pp 34-52).

123. The threats of massive use of force commenced in October 1998 and were intended to produce not a genuine peaceful settlement but a dictated result. The massive air campaign was originally planned in August 1998 for the purposes of general coercion and in order to force Yugoslavia to accept NATO demands. NATO first threatened air strikes in October of last year. This is a matter of public knowledge. It is only subsequently that the use of bombs and missiles over the whole of Yugoslavia was repackaged as a humanitarian mission.

124. These elements in the situation disclose a modus operandi which stands in appalling contrast to normal standards of diplomacy.

125. The threat of massive force was the prominent weapon. "Diplomacy" was seen as the successful result of bullying in its most extreme form. It is hardly surprising that, in its Orders issued in response to the Yugoslav Request for Interim Measures of Protection, the International Court addressed several injunctions to all the Parties. In the words of the Court:

"16. Whereas the Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in all parts of Yugoslavia.;

17. Whereas the Court is profoundly concerned with the use of force in Yugoslavia; whereas under the present circumstances such use raises very serious issues of international law;

18. Whereas the Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and the Statue of the Court;

19. Whereas the Court deems it necessary to emphasize that all parties appearing before it must act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law; . . .

(Order dated 2 June 1999 [Yugoslavia v Belgium], p 9).

126. NATO policies revealed other serious elements of confusion. Whilst reiterating the principle of maintaining the territorial integrity of Yugoslavia, the actual conduct of the principal NATO States has been to encourage separatism by every means available, including direct military assistance to the KLA.

127. The policy of encouraging secession in the case of Kosovo and Metojiha would appear to be pursued independently of any legal or political principle. Separatist movements in Russia, Turkey, Indonesia, and other States do not receive the assistance of the US air force.

XIV. CONCLUSIONS

128. There is no point in presenting a summary of what has gone before. The intention is to highlight points of particular significance.

129. The conclusions are as follows.

(a) The primary justification for the bombing of Yugoslavia was always the imposition of the NATO plans for the future of Kosovo. It was in this context that the bombing campaign was planned in August 1998.

(b) The threats of massive air strikes were made in the same context and were first made public in October 1998. Neither the purpose of the planned air strikes nor their implementation related to events on the ground in Kosovo in March 1999.

(c) The cause of the air strikes was quite simple: given that Yugoslavia had not given in to threats, the threats had to be carried out.

(d) The legal basis of the action, as presented by the United Kingdom and other NATO States, was at no stage adequately articulated.

(e) Humanitarian intervention, the justification belatedly advanced by the NATO States, has no place either in the United Nations Charter or in customary international law.

(f) Whilst in theory customary law could develop in such a way as to legitimise action by way of humanitarian intervention, the proponents of a change in the customary law have a burden of proof of a new consensus among States which could not be discharged on the evidence available.

(g) If the view had been held that the Permanent Members of the Security Council would recognise the need for humanitarian action, then no doubt a resolution would have been sought.

(h) The argument that a resolution would have been "blocked" by Russia and/or China is unattractive, in part because the matter could then have been taken to the UN General Assembly (in a Special Emergency Session) on the basis of the Uniting for Peace Resolution of 1950. Presumably the NATO States had no hope of obtaining a two-thirds majority in the General Assembly.

(i) The intentions of the United States and the United Kingdom included the removal of the Government of Yugoslavia. It is impossible to reconcile such purposes with humanitarian intervention.

(j) The claim to be acting on humanitarian grounds appears difficult to reconcile with the disproportionate amount of violence involved in the use of heavy ordnance and missiles. The weapons had extensive blast effects and the missiles had an incendiary element. A high proportion of targets were in towns and cities. Many of the victims were women and children. After seven weeks of the bombing at least 1,200 civilians had been killed and 4,500 injured.

(k) In spite of the references to the need for a peaceful solution to be found in Security Council Resolutions, the public statements of Mrs Albright, Mr Cook, Mr Holbrooke, and others, and the reiterated threats of massive air strikes, make it very clear that no ordinary diplomacy was envisaged.

XV. A SYNOPSIS

130. The writer has contacts with a great number of diplomats and lawyers of different nationalities. The reaction to the NATO bombing campaign outside Europe and North America has been generally hostile. Most States have problems of separatism and could, on a selective basis, be the objects of Western "crisis management". The selection of crises for the "Kosovo" treatment will depend upon the geopolitical and collateral agenda. It is on this basis, and not a humanitarian agenda, that Yugoslavia is marked out for fragmentation on a racial basis, whilst Russia and Indonesia are not.

131. The opinions reported in the previous paragraph are not merely "political" reactions but reflect the historical experience of the regions concerned. The drafting of Article 2, paragraph 4, of the UN Charter precisely reflects the concerns of small States both in Europe and in Latin America in the period before the Second World War. Forcible intervention to serve humanitarian objectives is a claim which is only open to powerful States to make against the less powerful. The fate of Yugoslavia will have caused considerable damage to the cause of non-proliferation of weapons of mass destruction.

ANNEXES (NOT PRINTED)

2. SC Resol 1160 (1998)

3. SC Resol 1199 (1998)

4. SC Resol 1203 (1998)

5. SC Resol 1207 (1998)

6. SC Resol 1244 (1999)



© Parliamentary copyright 2000	Prepared 7 June 2000