About the author
|I want to do three things in this presentation: firstly, I want to consider the main legal arguments that have been adduced in support of NATOs intervention in Kosovo, and consider how far these were reflected in the justifications proffered by NATO states. Secondly, I want to consider the opposing arguments, and thirdly, I want to briefly examine the international reaction in the Security Council to NATOs justifications. This will lead me into my conclusion where I will consider what the case of Kosovo has to tell us about the relationship between law and ethics in international society.|
1. The Legal Arguments in Defence of Operation Allied Force
It is argued that humanitarian intervention is not a breach of Article 2 (4) because it does not threaten the political independence and territorial integrity of member-states, and is in conformity with the purposes of the Charter.
This appeal to an express legal right of humanitarian intervention under the Charter was not part of the arguments raised by the leading NATO governments, and nor was it in voked in the Council debates on 24 and 26 March 1999. However, it was subsequently raised by Belgium in its pleadings before the ICJ when considering the FRYs charge that NATOs action violated international law. This legal argument was first made in the early 1970s by Myres McDougal and Michael Reisman, and more recently by Fernando Tesón. But this was the first time that a state had pressed this legal argument into service.
What is perhaps more surprising is that no NAT0 state invoked the post-1990 cases adduced by some commentators as supporting a new custom of humanitarian intervention. The best examples here are the Wests creation of the safe havens and no-fly zones in Iraq in 1991 and 1992, and the ECOWAS intervention in Liberia in 1990.
For the British international lawyer, Christopher Greenwood, these cases show that customary law does not exclude all possibility of military intervention on humanitarian grounds by states. Yet this claim was conspicuous by its absence in the Council debates on the legality of NATOs action.
This argument was implicit in a number of statements made by NATO governments, but it was most strongly advocated by the UK. The UK had taken the lead in late 1998 in arguing within the Alliance that there was indeed a legal basis for NATO to use force against the FRY even without explicit Security Council authorization. This reasoning was set out in a Foreign and Commonwealth Office paper circulated to NATO capitals in October 1998. The key sections are as follows:
A UNSCR [Security Council Resolution] would give a clear legal base for NATO action, as well as being politically desirable But force can also be justified on the grounds of overwhelming humanitarian necessity without a UNSCR. The following criteria would need to be applied:
This normative claim was given legal authority by Secretary of State for Defence, George (now Lord) Robertson, when defending the legality of Operation Allied Force before the House of Commons on 25 March 1999. He stated:
Having examined the legal bases of NATOs action, I want to turn briefly to the counter-arguments.
2. Objections to NATOs Legal Arguments
I support the view that the Charter is a dynamic instrument and not a static one, and that there must be room for normative development. However, to argue that bombing a states civilian infrastructure does not constitute a threat to its political independence and territorial integrity lacks plausibility as a credible legal argument. The quest ion about Article 2 (4) is whether a further explicit exception be carved into it to permit a legal right of humanitarian intervention.
In terms of the cases in the 1990s, it is argued that the ECOWAS was in the context of a collapsed state, and that the interventions in northern and southern Iraq have to be located in the context of the Gulf War.
Moreover, the response of wider international society to these actions was acquiescence and this should not be read as evidence of a new custom.
The problem with this criticism is that it overlooks the way in which the justification proffered by the UK seeks to control any legal precedent set by Kosovo for humanitarian intervention. As the British international lawyer Vaughn Lowe points out, the right to act claimed over Kosovo is not a unilateral right, under which each and every state may decide for itself that intervention is warranted.
Rather, the prior decision of the Security Council is asserted as a key element of the justification. The Security Council had determined under Chapter VII in Resolutions 1199 and 1203 that action was necessary to avert an impending humanitarian disaster. The UK position is that in the absence of such a determination, there would be no justification for the use of force.
It is not enough for individual states to point to the existence of an imminent humanitarian catastrophe; rather, the Council must have identified a human rights emergency as a threat to peace and security under Chapter VII. This is where the Arab League analogy breaks down be cause it would only apply if the Council had adopted a resolution under Chapter VII identifying the human rights emergency facing Palestinians as a threat to international peace and security.
However, as the FCO made clear in its note of October 1988, the use of force would still have to satisfy the requirements that it was both a necessary and proportionate response to the crisis. The problem with this argument is that it relies on the Council for the determinations of the magnitude of a humanitarian catastrophe, but then reserves the right for individual states to decide for themselves whether the requirements of necessity and proportionality have been met.
What was disputed in the Security Council over Kosovo was exactly this question as to whether the use of force was the appropriate means to end the gross violations of international humanitarian law by the FRY.
There are two further political problems with the legal argument advanced by the UK:
I am increasingly persuaded by the view that Kosovo was a case where there were genuine differences of opinion within the Council over whether force was the appropriate response to the crisis.
The fundamental problem, then, is how to resolve these differences. The difficulty with NATOs answer to this challenge is that it authorised itself to act, thereby taking the issue outside the UN framework. The task is to find a way of resolving these differences within the UN system.
3. International Reaction
However, there was no attempt to condemn the action in the GA, and a Russian draft resolution condemning the action was defeated by 12 votes to 3. This was effectively a 7-3 vote in which only Slovenia and Argentina of the non-permanent members expressed approval for NATOs action. In neither case, was the action defended in terms of the doctrine of unilateral humanitarian inter vention.
Of the Muslim states on the Council, Malaysia was surprisingly outspoken in acknowledging the political context in the Council that had forced NATO to act. The votes cast by Malaysia and the other Muslim states on the Council reflected the fact that NATOs action was saving Muslims, and it was this uneasy coalition between Muslim states and NATO that explains the defeat of the Russian draft resolution.
Certainly, the support of the Muslim states cannot be read as support for a doctrine of humanitarian intervention in international society. The conundrum was that whilst NATOs action was a breach of the law, the illegality of the action had to be weighed against the moral imperative to rescue the Kosovars.
The result was that many states operated the international equivalent of legal mitigation in domestic law systems: NATOs action was either tolerated or excused, but not legalized.
4. Conclusion: Law and Ethics over Kosovo
If we could be confident that NATOs action will remain a singular exception, then the idea of treating the case by applying the analogy of mitigation in domestic law might be reasonable.
However, this approach runs into three problems:
Given these three points, I would argue that what is required is a genuine debate at the UN, and in wider civil society, as to whether there are any conditions under which humanitarian intervention is tolerable, excusable or legitimate in the absence of express Council authorisation. Agreement on the procedural and substantive criteria for judging a legitimate humanitarian intervention is urgently needed to bring ethics and law into harmony.
Yet even if it proves possible to reach a substantial measure of agreemet among states on these issues, there is the question of how the law should respond if these new rules are not satisfied in a future emergency where armed intervention is justified on humanitarian grounds. Resolving this conundrum between unilateral action, moral ends and international law poses a fundamental challenge to the international community.
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