APPENDIX 3
Supplementary memorandum submitted by
Professor Ian Brownlie, CBE, QC
INTRODUCTION
1. In his letter dated 16 February 2000
Mr Silk, on behalf of the committee, invited me to prepare an
additional memorandum on any of the issues raised during the taking
of evidence on 8 February. I have also been supplied with the
transcript and the additional written questions.
2. The purpose of this further memorandum
is to address two issues; First, the assertion of Professor Greenwood
that the customary law has evolved on the basis of state practice
"in the space of the last 10 years", (Transcript,
pp 7-8) and, secondly the questions of policy and prudence involved
in any proposal to legitimate humanitarian intervention.
3. But at the outset, I would like to address
a question of fact.
THE ORIGINAL
PLANNING OF
THE AIR
CAMPAIGN
4. In my first memorandum I stated that
the air campaign had been planned by the end of August 1998. This
is confirmed by the version of events published by Lord Robertson,
Kosovo: An Account of the Crisis, Ministry of Defence,
p 3. The relevant passage reads as follows:
"Throughout 1998 diplomatic efforts to find
a peaceful, negotiated solution were taken forward by the Contact
Group. But the international community became aware that this
might not be enough. NATO Defence Ministers therefore decided
in June 1998 to task NATO military planners to produce a range
of options, both ground and air, for military support to the diplomatic
process, and by early August the results had been reviewed by
the NAC. NATO also undertook a series of air and ground exercises
to demonstrate the Alliance's ability to project power rapidly
into the region. Four RAF strike aircraft participated."
(emphasis supplied).
5. The words emphasised prefigure the repeated
use of the threat of massive bombing to force Yugoslavia to accept
the political demands of the NATO Governments especially in the
period October 1998 onward.
THE HYPOTHESIS
THAT A
NEW PRINCIPLE
OF CUSTOMARY
LAW HAD
EVOLVED.
6. In the taking of evidence Professor Greenwood
was asked to explain his view that there was in 1999 an existing
right of humanitarian intervention. In response (Transcript
p 7) he stated that the answer "lies in my opinion, in
customary international law", and he invoked "state
practice which has taken place largely in the space of the last
ten years . . ."
7. Professor Greenwood invokes three episodes
as evidence of state practice, as follows:
(a) The Air Exclusion Zone in Northern Iraq,
1991
8. The air exclusion zone in northern Iraq
was, in the view of the British Government, justified by "the
customary international law principle of humanitarian intervention":
see my original memorandum, paragraphs 30 and 31. It is very difficult
to understand what precedents lay behind this bald assertion and
no explanation was forthcoming. In 1986 the Foreign and Commonwealth
Office had been of a completely different opinion, see my original
memorandum, paragraph 58.
9. The validity of the air exclusion zone
"to protect the Kurds" as a precedent for humanitarian
intervention is highly questionable. More or less contemporaneously
the Government of Turkey bombed Kurdish targets within the air
exclusion zone without any constraints or criticism from the Governments
enforcing the exclusion zone.
(b) The Air Exclusion Zone in Southern Iraq,
1992
10. This was justified on the same basis.
In the House of Lords, the Minister of State, Baroness Chalker,
stated:
"Saddam Hussein continues to defy the UN.
His Government are failing to meet Iraq's obligations under Resolution
687. He continues to repress his own population in defiance of
resolution 688. With our coalition partners, we are keeping the
pressure on Iraq to implement in full the resolutions of the UN
Security Council. Where necessary, we do not flinch from backing
up diplomatic pressure with action. On 27th August, with out American
and French partners, we set up a no fly zone in southern Iraq,
south of the 32nd parallel. That was clearly necessary because
of the continuing serious humanitarian emergency among the civilian
population there. We will continue to operate the no fly zone
as long as Saddam's actions oblige us to do so" (25 September,
1992).
11. These two episodes involved a very small
number of states. According to my colleague, Professor Greenwood,
the second episode involved four states. It would be impossible
to find other recent authority who considered that these two episodes
had changed the position in general International law relating
to humanitarian intervention.
(c) The Operations in Liberia Authorised by
ECOWAS, 1990-
12. The creation of ECOMOG in response to
the civil strife in Liberia antedated the air exclusion zones
in Iraq. The relevant documentation can be found in Weller (ed)
Regional Peace-Keeping and International Enforcement: the Liberian
Crisis, Cambridge, 1994.
13. There is no evidence that this was seen
by contemporary statesmen as a paradigm of humanitarian intervention.
Two views of the operations are possible. According to the first,
the legal basis remained obscure and some writers considered the
action to be illegal. According to the second view, represented
by Dr Christine Gray:
"ECOWAS had not sought UN authorisation
for ECOMOG. It seems, therefore, that ECOWAS did not regard the
ECOMOG action as enforcement action for which Article 53 authorisation
was necessary. Nor did any State in the Security Council claim
that ECOMOG needed its authorisation. But ECOWAS did inform the
UN of its actions, and approval was given by the UN Secretary-General
and by the Security Council in statements and resolutions commending
ECOWAS for its actions.
When ECOWAS imposed economic sanctions on those
factions that did not accept the Yamoussoukro IV peace agreement
in October 1992, it asked the Security Council to make these sanctions
mandatory for the entire international community. That is, it
did not request Security Council authorisation but simply assistance.
The implication is that ECOWAS did not regard economic sanctions
as enforcement action under Article 53, an issue left unresolved
by earlier practice with regard to Cuba. In the Liberian instance
the sanctions were not against a State and this alone may have
taken them out of the reach of Article 53. But the view that economic
sanctions by a regional organisation do not need Security Council
authorisation was confirmed by the action with regard to Haiti.
The OAS imposed sactions in 1991. The General Assembly supported
this but the Security Council did not act until June 1993 when
it passed Resolution 841 unanimously imposing an oil and arms
embargo on Haiti. Thus, without discussion, it was assumed that
OAS economic sanctions did not require Security Council authorisation.
With regard to Liberia the Security Council did
not go so far as to make the ECOWAS sanctions mandatory on all
States, though it did impose an arms embargo under Chapter VII.
It unanimously passed Resolution 788. This recalled Chapter VII,
commended ECOWAS for its efforts to restore peace in Liberia,
reaffirmed the Yamoussoukro IV Peace Agreement, condemned violations
of the ceasefire and condemned the continuing armed attacks against
the peacekeeping forces of ECOWAS in Liberia by one of the parties
to the conflict. It `Requests all States to respect the measures
established by ECOWAS to bring about a peaceful solution to the
conflict in Liberia'. The Security Council clearly assumed the
legality of ECOMOG in this resolution and in its later resolutions.
The latter show the growing UN involvement in attempts to end
the civil war.
In Resolution 813, also passed unanimously, the
Security Council declared itself ready to consider measures against
a party to the conflict if it did not implement the Yamoussoukro
IV agreement. It called on the Secretary-General and ECOWAS to
arrange a meeting; it was this meeting under the auspices of the
UN, ECOWAS and the OAU that eventually produced the July 1993
Peace Agreement.
The Security Council subsequently established
UNOMIL, a UN peacekeeping force, to complement ECOMOG. As the
Secretary-General said, this was the first time the United Nations
undertook a peacekeeping mission in co-operation with a force
set up by another organisation. A clear understanding about the
role of the different groups was crucial. Accordingly Resolution
866 provided that ECOMOG had the primary responsibility for supervising
the implementation of the military provisions of the peace agreement:
UNOMIL was to monitor and verify this process. The UN involvement
would contribute significantly to the effective implementation
of the Peace Agreement and would serve to underline the international
community to conflict Resolution in Liberia. The Secretary-General
and ECOWAS was to make an agreement defining the respective roles
of UNOMIL and ECOMOG." (Christine Gray, in Hazel Fox (ed).
The Changing Constitution of the United Nations, BIICL
1997, p 91 at pp 107-8.
14. The ECOMOG operations appear to have
constituted a regional peacekeeping exercise which, at a certain
stage, received the support both of the UN Security Council and
the OAU. The practical basis of the action was the need to restore
order in a state without an effective government. Professor Greenwood
is almost alone in categorising the operation as a development
in a new customary law principle.
THE CONSTITUENTS
OF A
CUSTOMARY LAW
RULE
15. It is well recognised that there are
certain criteria which condition the emergence of a new principle
of customary law. There must be a general practice among states,
and the practice must be consistent. The practice must also be
accompanied by a conviction that the conduct is required by law
(opinio juris). In relation to the data offered by Professor
Greenwood, in my submission it comes nowhere near the threshold
of proof of a new customary rule.
16. Even in respect of the NATO states,
it cannot be assumed that all the Members acted on the basis of
a rule of customary law. In the proceedings before the International
Court initiated by Yugoslavia most of the Respondent states were
very reticent about the legal basis and relied upon non-legal
formulations of humanitarian catastrophe. Moreover, in the General
Assembly debate on 26 September 1999, the Belgian Foreign Minister
observed that the Security Council Resolution of 10 June had involved
"a return to legality".
17. The absence of a generality of practice
is confirmed by the positions adopted by states participating
in the Security Council emergency session on 23 March 1999. Russia,
China, Belarus and India stated that the attack on Yugoslavia
constituted a violation of the UN Charter. The United States,
Canada and France relied upon the wording of certain Security
Council resolutions and made no reference to a rule of customary
law. Germany (as Presidency of the EU) made no reference to such
a legal principle but invoked a "moral obligation" (S/PV.3988,
pp 16-18). The United Kingdom and the Netherlands were the only
Members to assert that the intervention was legally justifiable
in general international law.
18. In concluding this reconnaissance of
the relevant materials certain larger considerations of logic
and principle must be reckoned with.
19. In the first place there is a presumption
against a radical change in customary law: see Dr Akehurst, British
Year Book Vol 47, p 19. More to the point, very few (if any)
senior lawyers writing prior to the crisis have discerned
the significant development now announced by Professor Greenwood.
20. There is a further point of major importance
in this debate. If Professor Greenwood is correct, what has appeared
is a principle which directly qualifies the clear provisions
of the United Nations Charter. A customary rule may modify the
provisions of the Charter but only on the basis of the congruent
practice of the preponderance of Member States. No evidence of
such practice has emerged.
QUESTIONS OF
POLICY AND
PRUDENCE
21. There are major considerations of policy
and prudence which militate strongly against the practice of intervention
on a unilateral or "allies" basis, in the absence of
the authority of the Security Council. It is a practice only available
to strong states or other states acting alongside the powerful.
The resulting inequality is even less attractive when the motivations
of the intervening states involve collateral strategic or ideological
elements.
22. The principle of self-determination
is always a possible source of destabilisation. It is is to be
used as a lever to induce secession from outside, the results
will be disastrous. This will be particularly the case when intervention
takes place in favour of an ethnic group which is distributed
across several boundaries. Intervention in one of the relevant
states immediately creates a normative parallel for the elements
of the group living in the other relevant states.
23. Intervention in an ethnic context is bound
to create or exacerbate the very human rights abuses it is supposed
to prevent or terminate. The NATO intervention in Kosovo was blatantly
pro-Albanian. Non-Albanians were not seen as potential victims.
After the removal of the Yugoslav administration the Albanian
group expected the benefits of the victory achieved on their behalf.
The victory was seen in exclusively ethnic terms, but that had
been the basis of the intervention. This perception of the intervention
as exclusively pro-Albanian has been reflected in Albanian conduct
since June 1999 in respect of Serbs, Gypsies and other ethnic
groups.
24. Bombing one ethnic group on behalf of
another is bound to exacerbate group relations.
25. There is another dimension to the problem.
Humanitarian intervention (as a matter of morality) should involve
a short-term operation with the purpose of ending the human rights
abuses and improving public order in co-ordination with the lawful
Government. The Kosovo intervention was the culmination of a political
agenda intended to force Yugoslavia into accepting a regime of
autonomy in Kosovo imposed from outside, and also to change the
lawful Government of Yugoslavia as a further political dividend.
These aims have been stated publicly on numerous occasions.
26. In this context it is difficult to see
the final intervention as "humanitarian" at all. The
bombing was preceded by the removal of the OSCE monitors and the
"negotiations" of the issues (presented by NATO) were
not normal negotiations but were conducted under the threat of
massive use of force. It is positively Orwellian for Lord Robertson
to speak of "negotiations".
27. The modalities of the operations against
Yugoslavia are substantially incompatible with humanitarian intervention.
I refer to the use of very powerful modern weapons in urban areas,
the offensive generally against the economy of a whole country,
and the use of cluster bombs. Many civilians were killed or maimed,
hospitals were damaged and internal refugee flows induced. Moreover,
during the bombing the declared purpose of the operations was
to induce the population to overthrow the lawful government of
Yugoslavia.
28. One of the difficulties attending the
legal evaluation of the military operations is the substantial
doubt about the real purpose of the war. Even if humanitarian
intervention were lawful, it is difficult to see the NATO attack
(or its aftermath) as a genuine example (on the facts) of such
action.
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