APPENDIX 18
Memorandum submitted by Ms Christine Chinkin,
University of Michigan Law School
A. INTRODUCTION
The use of force has been prohibited in international
relations since at least the United Nations Charter, 1945, Article
2 (4) of the Charter states:
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 United Nations.
This principle is accepted customary international
law and regarded as peremptory norm of international law (jus
cogens)by many authors. Operation Allied Forces, as an undoubted
use of force against the territory of another state, is accordingly
contrary to international law unless it either:
(i) comes within the terms of an exception
to the prohibition against force; or
(ii) can be justified under customary international
law that has evolved independently of, and consistently with,
the Charter.
This paper will consider first the legality
of Operation Allied Force under the UN Charter and secondly the
position under customary international law. The legal analysis
is complex and this paper does not purport to be comprehensive.
Rather it raises some of the many arguments that might be made.
B. THE LAW
OF THE
UN CHARTER
The Charter recognises three exceptions to the
prohibition against the use of force: self-defence; enforcement
action under chapter VII and enforcement action under chapter
VIII.
1. Individual or Collective Self-defence
UN Charter, article 51 preserves the inherent
right of self-defence "if an armed attack occurs against
a Member of the United Nations . . ." No NATO member state
had suffered any "armed attack", nor was under any threat
of attack. Self-defence could only be justified in terms of the
collective self-defence of Kosovo. However the right to self-defence
under both the UN Charter and customary international law appertains
to states, not to sub-state entities. Since Kosovo is not a state
the right to self-defence under article 51 in inapplicable.
2. Chapter VII Action
UN Charter, article 24 gives the Security Council
the "primary" (not exclusive) responsibility for the
maintenance of international peace and security. The UN collective
security arrangements are provided for in Chapter VII. The UN
Charter, article 39 provides for the Security Council to determine
the existence of a threat to the peace, breach of the peace or
act of aggression and then to "make recommendations or decide
what measures shall be taken in accordance with Articles 41 and
42". Article 42 authorises the Security Council "to
take such action by air, sea or land forces as may be necessary
to maintain or restore international peace and security".
There may still be arguments about the legal basis of Security
Council authorisation in the absence of armed forces agreements
under article 43. However in the case of Kosovo there was no Security
Council authorisation.
2.1 NATO's Action Received No Prior Security
Council Authorisation
In SC Resolution 1160, 31 March 1998 the Security
Council acted under Chapter VII to impose an arms embargo on the
FRY in accordance with article 41. It therefore understood the
situation to constitute a threat to international peace and security.
It called upon all States to "act strictly in conformity
with this resolution".
It allocated no broad competence for the implementation
of this resolution as it did for example in the Beria Resolution
when the UK was authorised to enforce the sanctions imposed upon
Southern Rhodesia (SC Resolution 217, 20 November 1965).
In Security Council Resolution 1203, 24 October
1998 specific obligations were directed towards the Kosovo Albanian
leadership (to comply with all relevant resolutions, to condemn
terrorist actions and to pursue its goals by peaceful means only)
and towards the Yugoslav government (to comply with all relevant
resolutions and to be mindful of its primary responsibility for
the safety and security of all diplomatic personnel and for the
safe return of the refugees and displaced persons).
Other states were only urged to provide personnel
for the OSCE verification mission and resources for humanitarian
assistance. It can be argued that the resolution envisaged the
possibility of force in its endorsement of NATO and OSCE agreements
with Belgrade for the deployment of verifiers within Kosovo and
its affirmation that "in the event of an emergency, action
may be needed to ensure their safety and freedom of movement".
This wording, however, assumes the use of force
only for a specific and limited reason—the protection of
the verifying mission. It cannot be construed as a broader authorisation
of force. In the event, the verification mission left Kosovo before
the commencement of Operation Allied Force so concern for their
safety did not figure in the decision to use force.
The Security Council resolved "to consider
further actions and additional measures" in the case of non-compliance.
The threat of veto from the Russian Federation meant that no further
Security Council action was authorised.
2.2 Authorisation cannot be implied from omission
It is becoming commonplace to argue that omissions
by the Security Council to authorise certain actions are "as
good as" positive votes. Such justifications have been given
for example for the bombing of Iraq in December 1998 and the use
of force to maintain air lanes over Iraq. In this context the
response to a question in the UK Parliament about the legality
of the use of force in response to non-compliance with SC Resolution
949, 15 October 1994 is informative. In that resolution, acting
under Chapter VII of the UN Charter, the Security Council demanded
that Iraq not deploy military units to the South of Iraq. When
asked whether the use of force without any further Security Council
resolution would be justified if Iraq were to deploy troops to
the South, the government spokesperson in the House of Lords replied
that it would not (HL Debs, 561, WA, 6 February 1995). At the
time of the bombing of Iraq in December 1998 for non-compliance
with UNSCOM, the government considered the use of force was legal,
despite no specific authorisation for the use of force in a string
of resolutions dating back to the cease-fire resolution, 687,
3 April 1991.
It has been suggested, for example by Professor
R Wedgewood, Yale University Law School, in a Conference paper,
University of Michigan, September 1999, that the lack of a vote
in the Security Council prior to the onset of Operation Allied
Force can be read as approval. Professor Wedgewood further argued
that account should be taken of informal statements from "a
high-ranking Russian official with senior foreign policy responsibilities"
that some use of force against the FRY would not be unuseful.
This is an argument that international law should be given weight
to the "back-channel communications of states".
The argument that omission is an implied authorisation
is flawed. Article 27 of the Charter lays down the Security Council
voting procedure and 27 (3) provides for the veto for "important
questions". It cannot simply be discounted in favour of "off
the record" remarks by officials. This would fuse diplomacy
and law, undermine consistency and certainty in the application
of the Charter. It would also inhibit open and frank discussion
in negotiation for fear that statements would be taken as authoritative
of a state's position in preference over its formal vote in the
Council. Since, in the case of Kosovo no such vote was ever taken,
there can only be speculation as to how states would in fact have
voted over what proposals. What is clear is that the Security
Council did not authorise the use of force.
2.3 The Action has been Endorsed Ex Post Facto
This argument is discussed below in the context
of regional enforcement.
3. Regional Enforcement under Chapter VIII
However, the action against the FRY was not
unilateral but the collective action of a collective self-defence
organisation, NATO.
Chapter VIII of the UN Charter provides for
regional enforcement
Article 53 states:
The Security Council shall, where appropriate,
utilise such regional arrangements or agencies for enforcement
action under its authority. But no enforcement action shall be
taken under regional arrangements or by regional agencies without
the authorisation of the Security Council ,...
It has been suggested . . . that ex post
facto authorisation (or ratification) of the enforcement action
of a regional agency is sufficient, for example in the context
of the OAS blockade of Cuba in 1963. However the literal wording
of Article 53 is unambiguous: no enforcement action is permissible
without authorization by the Security Council. Article 31 of the
Vienna Convention on the Law of Treaties, 1969 requires that words
be given their literal meaning and Article 53 does not seem open
to any other interpretation. Further, the purpose of Article 53
is that the Security Council should retain control over situations
requiring enforcement action. The meaning of enforcement action
has also been controversial, but there is little doubt that Operation
Allied Force comes within it.
Nevertheless it has also been suggested that
Article 53 has been made more flexible through subsequent practice
and by tacit acquiescence by the Security Council.
In an Agenda for Peace 1992 and its 1995
Supplement, former Secretary-General Boutros Boutros-Ghali urged
the development of complementary and coherent strategies between
regional and global organisations.
The UN has neither the resources nor the capability
to resolve all issues that arise and increasingly has looked to
regional bodies for assistance. This has been the case in the
conflicts surrounding the dissolution of the former Yugoslavia,
notably in Bosnia-Herzegovina where the Security Council used
NATO, a defence organisation for humanitarian purposes.
For example, SC Resolution 770, 13 August 1992
called upon states to take nationally or through regional agencies—"all
measures necessary to facilitate and co-ordinate with the United
Nations—humanitarian assistancè.
Similarly, pursuant to SC Resolution 816, 31
March 1993 the Security Council authorised "Member States
acting nationally or through regional organizations or to enforce
no-fly zones over Bosnià, NATO carried out this function.
It is worth noticing that these events assumed
NATO to be a regional agency, arrangement or organization, terms
that are also open to different interpretations. Further NATO
used force for humanitarian ends in a non-member state on the
basis of these resolutions despite article 5 of the North Atlantic
Treaty, 1949, which provides for the use of force only in collective
self-defence of its members.
Thus there has been adaptation of NATO's competence,
as defined within its constituent treaty, through Security Council
Resolution. It does not follow from this, however, that it can
take action on humanitarian grounds without such authorization.
These two arguments—ex post facto
ratification has become sufficient through the more flexible practice
of the Security Council—can be applied to Operation Allied
Force. It can be argued that the NATO action with respect to Kosovo
was subsequently endorsed by the Security Council through SC Resolution
1203, 24 October 1998, by its failure to condemn the bombing campaign
and by the adoption of SC Resolution 1244, 10 June 1999, after
the end of the bombing campaign.
SC Resolution 1203, 24 October 1998, was adopted
after the agreement signed in Belgrade, 6 October 1998 after NATO
had indicated that force might be required against the FRY. If
the Council had considered the indication that force might be
used inappropriate (and article 2(4) applies to the threat, as
well as the use, of force), it is unlikely that it would have
supported the terms of the agreement.
A draft resolution proposed by the Russian Federation,
Belarus and India on 26 March 1999 condemning the bombing as violating
UN Charter articles 2(4), 24 and 53 was rejected by a vote of
12-3. This might be taken as tacit approval.
SC Resolution 1244, 10 June 1999 adopted in
Annex 2 the Agreement on the Principles (Peace Plan) to move towards
a Resolution of the Kosovo Crisis, authorised the international
security presence in Kosovo to exercise "all necessary means"
to fulfil its responsibilities and entrusted the Secretary-General
with organising a parallel international civil presence there.
An argument can be made that the Security Council would not have
endorsed the Peace Plan if it was condemning the action that led
to it, and thus Resolution 1244 can be read as subsequent approval.
The previous occasion that most closely resembles
the current situation is the intervention by ECOWAS through its
enforcement arm, ECOMOG, in Liberia in 1990-92. ECOMOG intervened
in the civil war in Liberia without Security Council authorization.
Its action was at first primarily humanitarian but it subsequently
entered into more offensive action, more appropriately seen as
enforcement action. ECOMOG is the military force of an economic
organization. Under the Protocol Relating to Mutual Assistance
on Defense, 1981 it was envisaged that it might be called upon
to act "in cases of armed conflict between two or more members".
It was not envisaged that it would intervene in internal conflict
(as was the case in Liberia and subsequently Sierra Leone). Thus
ECOMOG (like NATO) intervened in an internal situation and outside
the terms of its own Treaty. (See V Nanda et al, "Tragedies
in Somalia, Yugoslavia, Haiti, Rwanda and Liberia—Revisiting
the Validity of Humanitarian Intervention under International
Law—Part II", 26 Denver Journal of International
Law 827 (1998)).
In Security Council Resolution 788, 19 November
1992, the Security Council, in operative paragraph 1, (that is
not just in the Preamble) "commend[cd] ECOWAS for its efforts
to restore peace security and stability in Liberia." It also
condemned armed attacks against ECOWAS forces (which it termed
peacekeeping forces). The Security Council reiterated its commendation
of ECOWAS in Resolution 856, 10 August 1993 when it authorised
military observers to go to Liberia prior to the establishment
of UNOMIL.
The importance of these resolutions is that
they suggest a change of Security Council practice whereby subsequent
authorisation might suffice. However in resolutions 788 and 856
ECOWAS is commended by name. In contrast, Resolution 1244 welcomes
the general principles with respect to the settlement of the political
crisis in Kosovo, but nowhere refers directly to NATO, or its
enforcement action.
Even if the argument that retroactive authorisation
of enforcement action by regional agencies is sufficient compliance
with article 53, is accepted, the case for saying that this occurred
in SC Resolution 1244 is weak. It is only through implication;
there is no explicit commendation as occurred with ECOWAS.
The Security Council's attitude with respect
to Operation Allied Force has been one of sitting on the sidelines,
neither rejecting nor approving the action that was unfolding
without its participation.
Arguments for the legality of NATO's actions
in the FRY are strengthened by taking all these actions together:
the Security Council recognised the situation in Kosovo as warranting
Chapter VII action; it imposed such measures as it could get agreement
on; prior to the bombing it affirmed the on-going actions of various
European organisations, the EU, the OSCE and NATO, that did not
involve the use of force; when it could take no stronger measures
itself it did not condemn the regional agency that did so act;
and subsequent to the action it endorsed the political agreement.
These actions imply some approval but they do not substitute for
the fact that there was no prior authorisation of the action.
The plain words of article 53 were discounted.
It seems that there has been a creeping evolution
with respect to both the Security Council and NATO. The former
has extended Chapter VII by using it to authorise humanitarian
assistance and then calling upon regional agencies or arrangements
to provide the necessary forces to secure its delivery, moving
closer to humanitarian intervention. The latter, an organisation
established for collective self-defence has undertaken collective
humanitarian intervention with, and subsequently without, authorisation.
At each stage the interpretation of the Charter and the North
Atlantic Treaty has been further extended, until the actions falls
outside the terms of both.
C. CUSTOMARY
INTERNATIONAL LAW:
HUMANITARIAN INTERVENTION
If the legality of Operation Allied Force cannot
be found under the UN Charter, it might nevertheless be legal
under customary international law that has developed consistently
with the Charter. The most obvious contender is the doctrine of
humanitarian intervention. The use of force was "directed
exclusively to averting a humanitarian catastrophè (UK
Permanent Representative in the Security Council, 24 March 1999,
cited Legality of the Use of Force, (Yugoslavia v UK) Oral
Pleadings, ICJ Doc CR/99/23, paragraph 7, 11 May, 1999). Many
similar statements from the leaders of NATO states can be found.
The doctrine of humanitarian intervention has
been asserted by a number of writers as allowing intervention,
including the use of force on the territory of another state,
for protection against gross violations of human rights committed
against that state's own citizens. (Where intervention is to protect
a state's own citizens it is more properly considered as an aspect
of self-defence).
1. Is The Doctrine of Humanitarian Intervention
Applicable in International Law?
In the 19th century there were a number of incidents
of intervention by states either to rescue their own nationals,
or those of other states, from actual or threatened harm on the
territory of another state. Such incidents have no precedential
effect today because of the changed regime with respect to the
use of force established by the UN Charter.
The UN Charter establishes a legal regime based
upon the sovereign equality of states (article 2(1)), the obligation
to settle disputes peacefully (article 2(3)), the prohibition
of the use of force (article 2(4)), and non-intervention into
the domestic jurisdiction of states (article 2(7)). All these
foundational principles were reiterated in the Declaration on
Principles of International Law Concerning Friendly Relations
and Co-operation among States in Accordance with the Charter of
the United Nations, GA Res 2625 (XXV), 24 October, 1970. Any intervention
into another state, even upon humanitarian grounds, is incompatible
with these principles and as such contrary to the Charter.
Two interlocking arguments against this view
have been advanced:
1.1 Humanitarian intervention is consistent with
the terms of the Charter
There are two schools of thought with respect
to Article 2(4). The view that probably remains dominant is that
it is a comprehensive exclusion of the use of force in international
relations and that the clause "against the territorial integrity
or political independence of any state, or in any other manner
inconsistent with the United Nations" amplifies the totality
of states' rights. The other view is that this clause limits the
prohibition against the use of force. The only force that is prohibited
is that that is contrary to the territorial integrity or political
independence of any state, or the purposes of the United Nations.
Accordingly if the force does not come within these categories
it is legal.
The UK argued the second position in the Corfu
Channel Case, (UK v Albania) 1949 ICJ Rep. It asserted that its
actions in sweeping the Corfu Channel for mines was not against
the territorial integrity or political independence of Albania.
It was purely to protect navigation and collect evidence of the
existence of mines there. The International Court of Justice found
the UK to have acted contrary to international law. However the
argument is stronger in the context of human rights. The maintenance
of international peace and security is not the only purpose of
the United Nations. Article 1(3) states as another purpose of
the Organisation:
To achieve international co-operation in solving
international problems of an economic, social, cultural or humanitarian
character, and in promoting and encouraging respect of human rights
and fundamental freedoms . . .
Further, Article 56 states:
All members pledge themselves to take joint and
separate action in co-operation with the Organization for the
achievement of the purposes set forth in Article 55.
The purposes set forth in Article 55(c) include:
universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as
to race, sex, language or religion.
It can be argued that where the force is aimed
solely at the protection of human rights it does not threaten
political independence and territorial integrity and is entirely
consistent with the purposes of the UN Charter. Further, the domestic
jurisdiction exclusion, UN Charter article 2(7), has not been
allowed to interfere with the growth of the human rights regime
and the understanding that how a state treats its own citizens
is not shielded from international scrutiny. States parties to
the International Covenant on Civil and Political Rights, 1966
have undertaken to "respect and ensurè the rights
within their own territories. It is not such a large step to make
this a more general obligation to ensure human rights within other
territories as well. From these instruments the case is argued
that the use of force in defence of human rights in extreme cases
is not contrary to the UN Charter, and is certainly morally justified.
However it must also be acknowledged that the structure of the
UN Charter gives priority to state sovereignty.
1.2 Humanitarian Intervention is a Principle
of Customary International
Law
The other interlocking argument supporting the doctrine
of humanitarian intervention is that there is sufficient uniform
and consistent state practice accompanied by the required opinio
juris (belief in the existence of the law) to establish the
principle as a customary international law exception to the UN
Charter.
State practice has to be considered according
to whether the intervention was authorised by the Security Council.
In the post-cold war era when the use of threat of veto has been
lessened, the Security Council has authorised intervention on
humanitarian grounds under Chapter VII of the Charter without
the consent of the state in question. In 1991 with respect to
the situation of the Kurds at the end of the Gulf WarSC Resolution
688, 5 April 1991, insisted that Iraq allow access by international
humanitarian organizations and appealed to all Member States "to
contribute to these humanitarian relief efforts." This paved
the way for the Security Council to authorise intervention on
humanitarian grounds, which it did in the case of Somalia. Security
Council Resolution, 794, 3 December 1992, determined the humanitarian
situation to be a threat to international peace and security and
authorised the use of "all necessary means" to establish
a "secure environment for humanitarian relief operations."
This resolution was ground-breaking in two ways: the assertion
that a humanitarian crisis had implications for international
peace and security and thus warranted Security Council intervention
and the fact that no consent was given by Somalia.
Since Somalia humanitarian assistance backed
by military force has been authorised in Bosnia and Rwanda. It
can be confidently asserted that Security Council practice has
extended the concept of international peace and security, and
thus the conditions for intervention, to cover humanitarian catastrophes.
The legitimate use of force in such situations has remained controversial.
The resolutions have authorised "all necessary means"
to ensure the humanitarian assistance but not to assist any warring
side in an internal conflict. Force was therefore limited to actions
in self-defence. This position was undermined by the use of force
to protect no-fly zones in Bosnia as described above, and the
NATO bombing of Bosnian Serb positions, for example in August
1995.
However the fact that the Security Council has
authorised humanitarian action under Chapter VII does not automatically
legitimate such action without authorisation. The customary international
law requirement of opinio jaris cannot be deduced from
the actions of states that are authorised by the Council. It is
necessary to consider unauthorised interventions and here the
picture is less clear. The most commonly cited examples are the
intervention of India into Pakistan in 1971 for the protection
of the Bengalis, which led to the creation of the state of Bangladesh;
the intervention of Tanzania in 1979 that caused the overthrow
of Idi Amin in Uganda, and that of Vietnam which terminated the
murderous regime of the Khmer Rouge in Cambodia. However in all
three cases the states in question did not claim the right to
humanitarian intervention, but rather that of self-defence in
that there had been border invasions and other acts or threats
of force committed against them. In addition the respect of the
international community was equivocal. Bangladesh was recognised
as an independent state and admitted to the United Nations but
the Heng Samrin regime in Cambodia was not accorded recognition
in the West, nor did it represent Cambodia in the UN.
In other situations where humanitarian intervention
might have been applicable, other legal justifications for the
action were also argued by the protagonists. These include: rescue
of a state's own nationals (US action in Grenada in 1983; Israeli
action in Entebbe in 1976; US attempt to rescue the hostages held
in Tehran in 1980); invitation from the legitimate government
(US action in Grenada in 1983 and Panama in 1989); restoration
of democracy (US action in Grenada in 1983 and Panama in 1989).
In each of these instances the response of the
international community was at best equivocal and there were condemnatory
resolutions in the General Assembly.
It should also be remembered that in the context
of Korea the General Assembly recommended the use of force under
the Uniting for Peace Resolution when the Security Council was
unable to continue its authorisation because of the Soviet veto.
In the Certain Expenses of the United Nations, Advisory Opinion,
1962 ICJ Rep, the ICJ considered the costs to be legitimate expenses
of the UN provided the action was within the overall purposes
of the UN. On the one hand this shows that the Security Council
has only primary responsibility for the maintenance of international
peace and security, on the other that there remains a preference
for UN response. The General Assembly has not recommended a similar
intervention on humanitarian grounds (although it has recommended
humanitarian assistance).
In what is perhaps the fullest defence of humanitarian
intervention, Fernando Teson has justified it by reference to
the sovereignty and security of peoples. (F. Teson, Humanitarian
Intervention: An Inquiry into Law and Morality 2nd ed 1997)
Teson considers that the ultimate justification for the continuation
of the state is the protection of the natural rights of its citizens.
A government violating those rights forfeits domestic and international
legitimacy, and foreign intervention to suppress government abuse
is justified. Other writers have been less clear about the legality
of humanitarian intervention but consider it a form of "international
civil disobediencè. Teson's view may receive some support
from the Copenhagen Document of the Conference on the Human Dimension
of the CSCE (as it then was), 29 June 1990, although it is not
a legally binding instrument.
Article 1 expresses the commitment of the participating
states to the protection of human rights and fundamental freedoms
as a "basic purpose of government". Article 6 asserts
that the "will of the people freely and fairly expressed
. . . is the basis of authority and legitimacy of the government."
The document goes on to recognise the responsibility of the participating
states to defend and protect, in accordance with their laws, their
international human rights obligations and their international
commitments, and also in Article 11 recognises the importance
of remedies. Article 11.2 recognises the "right of the individual
to seek and receive assistance from others in defending human
rights."
It could be argued that the individuals of Kosovo
did just this and that the NATO states responded by giving assistance.
However article 37 states firmly that none of these commitments
may be interpreted as implying any right to engage in any activity
contrary to the UN Charter, including the territorial integrity
of states.
I do not think that state practice is sufficient
to conclude definitively that the right to use force for humanitarian
reasons has become part of customary international law. I would
submit that the most that can be asserted is that there is an
emerging concept of humanitarian intervention based upon the purposes
of the Charter, the growing commitment to human rights and limited
State practice. The exception is genocide. Under the Genocide
Convention, 1948, article 1 states parties "undertake to
prevent and punish' the crime of genocide. As far as I am aware,
this justification was not made for NATO's action.
(For a selection of the opposing views on international
law in this area see R Lillich ed, Humanitarian Intervention
and the United Nations (1973). M Bazlyer, "Re-examining
the doctrine of humanitarian intervention in light of the atrocities
in Kampuchea and Ethiopià, 23 Stanford Journal of International
Law (1987) 547; M Walzer, Just and Unjust Wars: A Moral
Argument with Historical Illustrations (New York, Basic Books,
2nd ed 1992) S Simon, "Contemporary legality of unilateral
humanitarian intervention", 24 California Western International
Law Journal (1993) 117; S Murphy, Humanitarian Intervention:
The United Nations in an Evolving World Order (1996); N Ronzitti,
Rescuing Nationals Abroad through Military Coercion and Intervention
on Grounds of Humanity (1985).)
2. WHAT ARE
THE CONDITIONS
FOR HUMANITARIAN
INTERVENTION?
Those in favour of a doctrine of unilateral
humanitarian intervention have been concerned to emphasise its
exceptional nature and the need for strict criteria for its application.
There is no authoritative decision on the criteria but those most
commonly asserted are:
(i) A gross violation of human rights occurring
in the targeted state
Since coercive intervention is prima facie
illegal, circumstances purporting to justify it must be strictly
construed. Accordingly the violations of human rights must be
of the most fundamental rights of the sort most frequently designated
as jus cogens (eg right to life; right to be free from
torture; right not to be subject to genocide). It is controversial
whether economic and social rights can be included but systematic
denial of food (as in Somalia) would appear to do so. Perhaps
a good guide would be to consider those denials of human rights
that constitute crimes against humanity under the Rome Statute
for an International Criminal Court, 1998 would warrant intervention.
Concern about political security and the instability of a regime
do not warrant intervention on humanitarian grounds.
(ii) The UN is unable or unwilling to act
The primary responsibility of the Security Council
for the maintenance of international peace and security under
UN Charter, article 24 gives a priority to Security Council action.
While the Security Council's mandate is not explicitly directed
at human rights, it has extended its Chapter VII powers to such
situations (Somalia, Bosnia) and such authorised intervention
is clearly legal. However if the UN is unwilling or unable to
authorise action, there is a moral imperative for some other body,
to act in its place, preferably through collective action and
such action should not be deemed illegal.
(iii) An overwhelming necessity to act
The objective is to prevent or put an end to
gross human rights abuses when there is no longer any expectation
that the domestic authorities will do this, the UN is unable or
unwilling to act, all non-military options have been explored
and there is some impartial and neutral evidence (for example
a report from the International Committee of the Red Cross; reports
from inter-governmental organisations such as the bodies of the
Human Rights Commission, or regional human rights bodies, NGO
human rights reports) that the humanitarian situation can no longer
be contained.
There is a dilemma between the need to wait
until the intervention is necessary according to some objective
criteria, and the additional loss of lives likely as a result
of delay. This was most tragically demonstrated in Rwanda where
early warnings of the impending genocide were ignored. If the
doctrine of humanitarian intervention is to have practical benefits
it seems likely that it will move into one of anticipatory humanitarian
intervention (on an analogy with "anticipatory self-defencè).
This shows the very real tension between state sovereignty and
human rights guarantees for a doctrine that is inherently difficult
to formulate in a precise and legal way. Yet since the doctrine
is intended to operate as an exception to the prohibition on the
use of force and against state sovereignty, it must be strictly
construed.
(iv) The intervention must be Proportionate
This relates to the means of intervention rather
than the decision to intervene. The 1949 Geneva Red Cross Conventions
and the 1977 Protocols Additional to the Geneva Conventions that
provide the legal regime for the conduct of armed conflict are
applicable to all international armed conflict (Common article
2) regardless of whether the use of force is justified by international
law.
3. WERE THE
CONDITIONS SATISFIED
IN THE
CASE OF
KOSOVO?
There is little doubt that there were significant
violations of human rights in Kosovo. Security Council resolution
1199, 23 September 1998 refers to "reports of increasing
violations of human rights and of international humanitarian law"
and the Security Council's alarm at the "impending humanitarian
catastrophè and the need to prevent its occurrence. Reports
of massacres such as that in Racak in January 1999 added to the
picture of commission of human rights abuses. The displacement
of over 230,000 persons from their homes is also pointed to in
Security Council Resolution 1199.
What is less clear is whether the intervention
was "necessary", whether all other means of preventing
the continuing violations of human rights had been sought and
whether the intervention was limited to humanitarian objectives.
Human rights abuses had been reported in Kosovo
for many years without foreign, armed intervention. While their
cumulative effect was mounting it is not clear that there was
a greater emergency in March 1999 than at other times. The precipitating
factors appear to have been the intensification of fighting between
the KLA and Serbian forces and the refusal of the Serbian government
to accept the terms of the Rambouillet Agreement. The insistence
at Rambouillet on what were termed "non-negotiable principles"
and the threat of NATO force undermined the process as an attempt
at a negotiated settlement. In addition, both the Rambouillet
principles and NATO's five principles show the problems of applying
the doctrine of humanitarian intervention. At Rambouillet the
territorial integrity of the FRY and the self-government and guarantee
of human rights of the people of Kosovo were both stressed. The
role and participation of the OSCE and other international bodies
to ensure the latter undermine the former. Similarly NATO stressed
among its objectives the end of the killing by Yugoslav army and
police (an end to human rights violations) and the deployment
of a NATO led international force. It may well be the case that
long-term protection of the civilian population could not be achieved
without continuing intervention. However such realities make the
purported requirement of humanitarian intervention, that it be
limited to humanitarian objectives, unworkable. It is hard to
envisage a way to bring about a permanent end to human rights
abuses of a sufficient gravity to warrant foreign intervention
without some political settlement. This will inevitably undermine
the political independence of the targeted state.
Aerial air strikes are not effective for protecting
people on the ground who are likely to suffer additional discrimination
and abuse because of the bombing. In the short term the action
did not achieve humanitarian goals and might be more accurately
labelled reprisal or forcible countermeasures for prior illegal
acts. There is no exception to article 2 (4) allowing for reprisals.
(The Declaration on the Principles of Friendly Relations, GA Res
2645, 1970). In the long term NATO's forcible intervention and
subsequent peace building through KFOR may bring about that situation.
This highlights still another dilemma of humanitarian intervention:
the tension between short term and long term consequences. The
doctrine does not give adequate guidance on this question.
It has been argued, for example by Professor
Cassese, that the Geneva Conventions and Protocols constitute
customary international law. It would be possible to go through
a number of articles of the Geneva Conventions to determine the
conformity of the NATO action with them, but that would be beyond
the scope of this survey of the law. However one of the over-riding
principles of international humanitarian law is the distinction
between combatants and non-combatants. While NATO stressed its
selection of military targets it is arguable that the form of
combat, high aerial bombing and the use of cluster bombs, were
contrary to this basic principle of humanitarian law.
Two other considerations are those of human
rights and environmental law. In its advisory opinion on The
Legality of Nuclear Weapons ICJ Reports, 1996, the International
Court of Justice considered the relevance of each.
The Court opined that the International Covenant
on Civil and Political Rights, 1966 does not cease to be applicable
in times of war (paragraph 25). All NATO members are parties to
the ICCPR. It includes the right not to be arbitrarily deprived
of life. The Court also considered that the determination of what
is arbitrary deprivation must be determined by the lex specialis,
international humanitarian law. It should be noted that the UN
High Commissioner for Human Rights has expressed concern about
NATO's compliance with human rights law. The General Assembly
and the UN Committee on Economic and Social Rights have both emphasised
continuing human rights obligations in the context of unilateral
economic measures. The General Assembly has urged states to refrain
from adopting or implementing "any unilateral measures .
. . impending the full realization of the rights set forth in
the Universal Declaration of Human Rights." (GA Res 53/141,
8 March 1999, Human Rights and unilateral coercive measures).
The human rights of the civilian population
include their right to an adequate standard of living under the
International Covenant on Economic, Social and Cultural Rights,
1966, article 11, to which the UK (and other NATO members, but
not the US) is a party. (The relationship between economic sanctions
and respect for economic, social and cultural rights, General
Comment 8 (E/C.12/1997/8, 5 December 1997).
The Legality of Nuclear Weapons advisory opinion
is also relevant with respect to the environmental consequences
of conflict. The Court considered that environmental considerations
must be taken into account when assessing what is necessary and
proportionate action in pursuit of military objectives. It referred
to GA Res 47/37, 25 November 1992, On the Protection of the Environment
in Times of Armed Conflict, where the General Assembly stated
that destruction of the environment not justified by military
necessity and carried out wantonly is clearly contrary to customary
international law. While NATO's action was not "wanton"
the assessment of environmental damage against military necessity
in a campaign of this sort is less clear.
I do not have access to objective data about
either the human rights situation of Yugoslav civilians or the
environmental conditions in the FRY. It is to be noted that the
European Union is urging the provision of fuel for heating in
areas where the opposition is in control in Yugoslavia indicating
the lack of such essentials. Environmental damage, notably to
the Danube, is disrupting communications and trade to third states.
Such facts must be taken into account in determining whether the
action was necessary and proportionate.
D. SUMMARY OF
CONCLUSIONS
1. The NATO bombing does not come within
the exceptions to the prohibition against the use of force provided
for by the UN Charter. It was neither individual nor collective
self-defence; it was not authorised by the Security Council in
accordance with either Chapter VII (articles 39 and 42) or Chapter
VIII (article 53).
2. The doctrine of unilateral humanitarian
intervention (without Security Council authorisation) remains
controversial in customary international law. Proponents of the
doctrine assert that it is supported by Security Council authorised
intervention in Somalia, former Yugoslavia and Rwanda, as well
as by unilateral action such as that by India (1971), Tanzania
(1979) and Vietnam (1979). Others argue that there is no clear
state practice and that it conflicts with the principles of sovereignty,
non-intervention and UN Charter, article 2 (7). The Security Council
has been inconsistent, although there has been a trend towards
the authorisation of intervention of humanitarian grounds and
unilateral instances of what might be termed "humanitarian
intervention" can be justified on other grounds, in particular
self-defence. There is no authoritative opinion on this disputed
area of international law, although it is clear that the doctrine
has greater support than, for example, a decade ago.
3. If it is accepted that there is a right
under international law to intervene with the use of force in
the territory of another state for the protection of human rights,
it remains as an exceptional exception to the prohibition on the
use of force and only permissible under certain conditions: there
must be a gross violation of human rights occurring in the targeted
state that the domestic state is unable or unwilling to alleviate;
the UN must be unwilling or unable to act; the action must be
limited to humanitarian purposes; there must be a necessity for
such action and the action must be proportionate to the humanitarian
objectives. There is a preference for collective action.
4. It is not clear that the NATO action
satisfied these stringent conditions.
5. Even if the use of force is found to
be legal the obligations of the laws of war and human rights remain.
The Geneva Conventions on the Laws of War, 1949 and the 1977 Protocols
distinguish between combatants and non-combatants. While it is
not suggested that military targets were not pursued, maintenance
of this legal distinction is difficult to reconcile with cluster
bombing from a considerable height.
6. The General Assembly and the UN Committee
on Economic and Social Rights have both emphasised continuing
human rights obligations in the context of unilateral economic
measures including the rights of the civilian population of the
FRY to an adequate standard of living under the International
Covenant on Economic, Social and Cultural Rights, 1966, article
11, to which the UK (and other NATO members, but not the US) is
a party.
7. Reprisals or forcible countermeasures
are not permissible under international law.
8. It must be remembered that NATO's action,
as state practice, will itself contribute to the affirmation of
international law and thought must therefore be given to the precedential
effect of the action.
9. While Operation Allied Command does not
fall directly under any of the doctrines of international law
permitting the use of force, the cumulative effect of the arguments
is persuasive. The Security Council was aware of the action and
did not condemn it; humanitarian considerations were certainly
extremely important and the subsequent Peace Plan has been endorsed
and made operational with Security Council authorisation. I can
see the force of the arguments that led Professor Simma, to conclude
that the NATO actions fall on the right side of the "thin
red linè that divides legality from illegality (B Simma,
"NATO, the UN and the Use of Force: Legal Aspects",
10 the European Journal of International Law 1 (1999). In
this view the actions have a legitimacy, if not strict legality
under international law. Nevertheless this position is not without
considerable doubt and we should be aware that leading international
law into new areas.
Christine Chinkin, Professor of International
Law, London School of Economics and Political Science, October
1999.
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