Introduction

NATO’s unsanctioned intervention in Kosovo was plainly a breach of Article 2.4 of the UN Charter.[1] The question of whether the threat and use of force in this case can be defended legally will provide further considerable substance upon which the long-running debate on whether there is a right of humanitarian intervention will continue. However, for the many who hold that gross violations of human rights make ethical demands upon us which cannot be overridden by prohibitive law, such situations are presented to us as a form of ‘Justice cannot wait; law cannot bend.’ When serious and widespread suffering resulting from government action or omission within sovereign borders is characterised in this way, we are given to understand that there is a moral, and arguably, even a legal imperative driving (and justifying) action in direct contravention of international law. The particular circumstances of some humanitarian crises appear to bring moral reasoning and the strictures of law into direct opposition, as expressed in the following:

The absence of effective international machinery to protect human rights, coupled with a supposed absolute doctrine of non-intervention in the affairs of states, has produced the impression that in many parts of the world today individuals may have less protection than ever before. Surely to require a state to sit back and watch the slaughter of innocent people in order to avoid violating blanket prohibitions against the use of force is to stress blackletter at the expense of far more fundamental values.[2]

Much of the justification of the Kosovo intervention – and the idea of a right to humanitarian intervention more generally – is grounded on a belief that ‘The history of international relations exhibits many instances in which intervention was prompted by humanitarian considerations that one can condemn only by a too vigorous waving of the banners of sovereignty.’[3] The ensuing post-intervention debate then turns around a number of neatly delineated dichotomies: within law, between legal formalism and ‘permissive pragmatism’,[4] or between codified international law and the possibility of an evolving general rule of international law[5]; and within academic circles, between sovereignty and human rights,[6] or between international order and human security.[7]

Pitting sovereignty against human rights in this way – and perhaps more worryingly, justice versus law – combines with the now-widespread acceptance that sovereignty is not a transcendent or immutable feature of inter-state relations,[8] to bring us a rash of pronouncements that, post-Kosovo, we have a new ‘doctrine of the international community’[9]; ‘a new regime’[10]; or a ‘post-Charter paradigm’.[11]

The argument of this article is threefold. The first point is that in the furtherance of human security, the main lines of tension are not between sovereignty and human rights but between law-based and force-based order. Second, that an instrumental approach to Article 2.4 of the UN Charter undermines not only the fundamental basis of international order, but also the rule of law more generally. Third, that the wider lego-political context of the Kosovo intervention is one in which there has been a gradual erosion not only of the prohibitive force of Article 2.4, but also a growing resistance to codification, enactment and compliance with international law, a pernicious trend to which the NATO intervention is likely to have contributed.

The article will first consider the case that the NATO intervention in Kosovo has ushered in a new interventionism or a ‘new doctrine’ by which states will not feel constrained by Article 2.4 of the UN Charter when faced with what has been termed ‘overwhelming humanitarian necessity’. The second section deals briefly with the background and consequences of the Kosovo war pertinent to this argument. The final section lists a number of general considerations which argue the case that the logic of a right of states to humanitarian intervention is deficient, legally and politically, and that it invites the danger of a movement away from law-based international order to one based on force – the very conditions under which gross abuses of human rights are committed.

A post-Kosovo ‘new doctrine’?

The alacrity with which the recent NATO intervention is being taken as a new basis for a revised or conditional applicability of Article 2.4 of the UN Charter to states bent on addressing a humanitarian emergency should be a source of serious concern. This is not merely because ‘hard cases make bad law’; indeed, one of the most striking features of the post-Kosovo international climate is the extent to which legal debate appears to have been supplanted by political assertion – not least by NATO itself. US Deputy Secretary of State Strobe Talbot stressed

‘…that as we maintain our ability to defend the territorial integrity of all NATO members, we also need forces, doctrines and communication assets that will allow us, when necessary, to address the challenges of ethnic strife and regional conflict that directly affect our security but lie beyond NATO territory – as we have done, and are doing, in the Balkans.’[12]

The same address contains the following passage, notable for the absence of any sense that international law might inform and/or constrain a NATO which had come to an internal consensus:

‘Let me be clear. I am not saying there are no limiting factors on what NATO can and should do. Of course there are. NATO is a consensus organization, and it defines its common interests accordingly – by consensus of its members. We would not go anywhere as an Alliance unless all our members want us to go there. No ally can force others to agree to a NATO action. Under Article IV of the Treaty of Washington, NATO members will consult when their security is threatened, and together they will determine the appropriate response.’

More remarkably, it appears that the limits on future NATO initiatives will essentially be logistical:

‘There are also limits implicit in the military capabilities of the Allies themselves. No one is suggesting that we deploy NATO forces, say, to the Spratley Islands.’

Conformity with the law, it seems, will be at NATO’s convenience:

‘Nor are we suggesting that NATO act in splendid isolation from – or high-handed defiance of – the United Nations or the OSCE….We believe NATO’s missions and tasks must always be consistent with the purposes and principles of the UN and OSCE. We expect NATO and its members will continue to be guided by their obligations under the UN Charter and the Helsinki Final Act.’

‘Purposes and principles’ is a well-crafted piece of ambiguity, as is the ‘expectation’ of continued conformity with the law – as the next passage in the address makes clear:

‘At the same time, we must be careful not to subordinate NATO to any other international body or compromise the integrity of its command structure. We will try to act in concert with other organizations, and with respect for their principles and purposes. But the Alliance must reserve the right and the freedom to act when its members, by consensus, deem it necessary.’

Talbot’s address is entirely consistent with other, authoritative pronouncements, such as that from the US Ambassador to the United Nations, Richard Holbrooke, in a speech entitled, ‘A New Realism for a New Era: The US and the UN in the 21st Century’, in which the impetus for further unsanctioned interventions makes no mention of humanitarian obligation:

‘We must not overlook a basic fact: the US will not always act through the UN. We have other vital instruments of national power at our disposal, as was demonstrated in both Bosnia and Kosovo, where NATO acted without UN authority. I would advocate similar actions again if they were in the national interest.[13]

If one school of post-Kosovo thought leans toward the sidelining of international law, or at best, adherence when it is compatible with national interests, another would have it that the breach of Article 2.4 was the long-awaited challenge to the blanket prohibition against state intervention which also blocks unsanctioned humanitarian initiative; in other words, that although there is not yet a legal framework for ‘the new interventionism’, a modus operandi, based on the Kosovo intervention, is now in place and legal reform will crystalize around it. ‘If power is used to do justice,’ asserts a Professor of Law at the University of California, ‘law will follow.’[14] His reasoning is as follows:

‘Having analyzed the many problems in the current regime and NATO’s willingness to circumvent it, discussion often grinds to a halt. This is understandable, since those who cherish the rule of law are loath to counsel law-breaking in any form, no matter how dysfunctional the status quo has become. It is far easier to paper over problems in the current system than to admit that it no longer works. But challenging a law is not synonymous with challenging the rule of law. Quite the contrary: challenging an unjust law (as NATO has done with the Charter) can actually reinforce the legal regime. Openly breaking the law is much less dangerous than only pretending to comply with it, since disingenuous, disguised violations undermine the open debate upon which legal reform and the law’s legitimacy depend.’[15]

But to a considerable degree, legal debate has already been bypassed. Many states regarded NATO’s unsanctioned intervention not as a principled legal challenge but as a straightforward act of law-breaking. Their worst suspicions in that regard will have been confirmed by NATO’s ‘new strategic doctrine’, which relies not on a reformulation of Article 2.4, or the development of a law-based right of states to humanitarian intervention, but on a case-by-case assessment of the suitability of international law to the needs of its member states. If, as the Professor asserts, there is already a ‘new regime’, then the presumption of ‘open debate’ is itself disingenuous.

The legitimacy of law depends not only on the extent to which laws are enacted and enforced, but also on the manner in which claims on justice are accommodated. The rich legal literature on state intervention,[16] on Article 2.4 itself,[17] and whether a nascent right of humanitarian intervention can be discerned in recent state practice,[18] together with the rulings of the International Court of Justice and the debates of the UN General Assembly, are the principal sources of debate, for states as well as scholars. The disturbing possibility post-Kosovo is of a bifurcation of legal debate and state practice. Consider the UK’s defence of its participation in the NATO intervention in the case brought against in by Yugoslavia, challenging the legality of the bombing campaign. Throughout the war, spokespersons for the UK asserted the essential legality of the action – an important point, which strongly suggests a determination that the NATO action should not be seen to challenge the rule of law.[19] Yet the UK did not meet the substance of any of the legal challenges brought by Yugoslavia in the International Court of Justice, instead relying on a jurisdictional technicality. It is worth noting that

‘The ICJ has not finally discharged the UK from the proceedings. In the case of certain other defendants who have submitted to the jurisdiction, the Court will presumably give a substantive decision in due course.’ [20]

However, would a judgement in favour of Yugoslavia now be sufficient to alter the political impetus behind the ‘new interventionism’? Would a vibrant legal debate forestall practical preparations for future unsanctioned instances of ‘power doing justice’ – albeit outside the law?

In any event, whether an important instance of law-breaking is a challenge to the law in question, or a challenge to the rule of law more broadly, is as much a matter of perception as intent. It is of note that in the three best-known cases of intervention driven in varying degrees by humanitarian concerns (India/Bangladesh, 1971; Vietnam/Cambodia, 1978; Tanzania/Uganda, 1979), the intervening states defended their actions as self defence under Article 51 of the UN Charter.[21] There was sufficient flexibility in the international system – and within international law – to accommodate what many regarded as legal fictions, but ones which served broadly humanitarian purposes, while not disturbing the integrity of Article 2.4, upon which law-based order between states depends.

The law does bend, but it is not endlessly elastic. Moreover, the assertion of the inapplicability of Article 2.4 in cases of extreme humanitarian need, in Kosovo and as a general principle, must be seen against a background of persistent violations of the same Article for more directly self-interested purposes. Within a single year (1998), for example, the US and UK twice threatened to use military force against Iraq in respect of compliance with Security Council resolution 687 (but without Security Council authorisation); the US and the UK launched ‘Operation Desert Fox’ against Iraq, employing cruise missiles as well as air strikes – again, without Security Council consent; and the US also launched retaliatory strikes against Sudan and Afgahnistan, without recourse to Security Council debate.[22] Abstracting violations of the law for proclaimed humanitarian reasons from a more extensive pattern of violations of the same law for the furtherance of national interest is credible only for certain purposes of legal scholarship. Yet this is the foundation on which the supposed ‘new regime’ will be built – and, presumably, find acceptance in the wider international community:

‘As before, the new regime allows that domestic order is the primary and initial responsibility of the state; the difference now is that intervention has been deemed appropriate where the humanitarian costs of failing to intervene are too high (as in cases of genocide). Intervention on a pretext – toppling a government in the name of international law just because its political or economic philosophy is objectionable to some other state – is still prohibited. How this will be policed remains unclear (as do many of the details of the new system), but as a safety measure, the new regime favours multilateral over unilateral action. The hope is that building a multinational coalition will filter out the worst forms of national self-interest and keep them from playing a leading role in international intervention.’[23]

The hope of ‘filtering out the worst forms of national self-interest’ within alliances of states founded on mutual benefit – and a typical range of power asymmetries – would be difficult to sustain in the present circumstances were it not also politically naïve. Most important is the question of how Article 2.4 could be maintained against a regime which could free itself of the prohibition on a declaration of humanitarian intent – effectively on its own say so. To the extent that the international legal mechanisms are not sufficient to the twin demands of maintaining international order and redressing gross violations of human rights, recourse to extra-legal action has the effect of postponing efforts to better them. For if states can freely violate the prohibition on the use of force on the scale we have witnessed in Yugoslavia, what interest do any of the world’s more powerful states have in reforming law which can be employed instrumentally (against others) and freely ignored in cases where human rights abroad and national interests neatly coincide?

Throughout the NATO bombing campaign, much was made of ‘shared values’. The UK Prime Minister asserted that it was ‘…a just war, based not on territorial ambitions but on values’. Since the law forbidding genocide and the forced displacement of peoples are as universal an expression of shared values as any we have, opposition to the tactics that were employed to coerce Yugoslavia can then easily be depicted either as a stance founded on legal formalism [adherence to Article 2.4] at the expense of human suffering, or a failure to appreciate the required military means for the desired political outcome. It can therefore be argued that large-scale suffering caused by a repressive and unresponsive government met with a principled and forceful, if illegal response. But the reality, both before and after the bombing is rather more complex.

The Kosovo intervention: background and outcomes

While the authoritative OSCE Report on the period leading up to the bombing campaign (Kosovo/Kosova: As Seen, As Heard) does not discount the extent of Kosovo Albanian military activity, nor abuses committed against Kosovo Serbian communities, it is clear that ‘Suffering in Kosovo in the period monitored by the OSCE was overwhelmingly Kosovo Albanian suffering, at the hands of the Yugoslav and Serbian state military and security apparatus.’[24] From a strictly humanitarian perspective, the favoured option of any third party would be to negotiate a settlement which entailed a quick reduction in the Yugoslav/Serbian military presence and a gradual means for some measure of self-government for the Albanian majority, satisfactory to both sides. Although rarely a swift way to proceed, it is plain that the enactment of an agreement freely arrived at would address some of the matters at issue (and not only the immediate human suffering); would be less costly, more straight-forward to police and more sustainable than an enforcement, since Kosovo is a province of Yugoslavia.

Could the Interim Agreement for Peace and Self-Government in Kosovo – the Rambouillet Accord[25] – have brought about this state of affairs? Was Yugoslav intransigence to blame for its failure?

In light of the fact that the draft proposal of a political settlement was presented to both parties from the start of the Rambouillet talks, the apparent willingness of Yugoslavia to accept its main tenets, as expressed through their chief negotiator some two weeks later, must have been very encouraging: ‘The federal republic of Yugoslavia is ready to consider the scope and character of an international presence in Kosovo with a view to implementing the agreement to be adopted at Rambouillet.’ By 15 March, Articles I (‘Principles’) and II (‘Confidence-Building Measures’) of the Accords had been agreed.

As an agreement drew close, however, NATO presented a set of military provisions – nominally ‘proposals’, but presented as non-negotiable[26] – indeed, it was made plain that failure to agree would initiate the bombing campaign. A number of these provisions are worth quoting in full, since they are a remarkable inclusion in a third party diplomatic initiative aimed at securing a political settlement – to say nothing of their non-negotiable status. Taken together, they provide for the occupation not only of Kosovo, but also for unlimited access to the whole of Yugoslavia, with complete legal immunity. (Numbers in parentheses refer to numbered articles under Chapter 7, Annex B.)

NATO personnel shall enjoy, together with their vehicles, vessels, aircraft, and equipment, free and unrestricted passage and unimpeded access throughout the FRY including associated airspace and territorial waters. This shall include, but not be limited to, the right of bivouac, manoeuvre, billet, and utilization of any areas or facilities as required for support, training and operations. (8)

NATO personnel, under all circumstances and at all times, shall be immune from the Parties’ jurisdiction in respect of any civil, administrative, criminal or disciplinary offences which may be committed by them in the FRY. The Parties shall assist States participating in the operation in the exercise of their jurisdiction over their own nationals. (6b)

NATO personnel shall be immune from any form of arrest, investigation,, or detention by the authorities in the FRY. NATO personnel erroneously arrested or detained shall immediately be turned over to NATO authorities. (7)

The provisions of this Appendix shall remain in force until completion of the Operation or as the parties and NATO otherwise agree. (25)

If the main priority of NATO negotiators was a remission of the plight of the Kosovo Albanians, how could these demands been other than counterproductive? It is difficult to imagine any sovereign state not facing wholesale defeat in war or some form of collapse agreeing to what amounts to surrender of the control of its territory. Why, when Yugoslavia had already accepted the Principles of Rambouillet (which included ‘…the right to democratic self-government…’), was it necessary to present the Yugoslav government with two unacceptable – and, from the standpoint of humanitarian ends, pointless – alternatives: military occupation or bombardment? In the face of progress in negotiation and no suggestion of bad faith on any side, why would a third party negotiator abandon diplomacy and resort to a demand which was as crude as it was coercive? The threat of force by one or more states against another is also a breach of Article 2.4 of the UN Charter.

The absence of the UN – particularly in the form of a UN-mandated and controlled monitoring force – is also a striking omission from a negotiating team with humanitarian ends in mind. If, as appears to have been the case, the Yugoslav government was prepared to settle on the main points of the Rambouillet Accord, what objection could there have been to a UN-mandated and directed force? After ten weeks of intensive bombing, this is a concession that NATO made, together with the inclusion of Russian troops and the agreement that the international force would be confined to Kosovo alone.

In a war in which the urgency of the plight of the Kosovo Albanians was the legal justification for the commencement of the bombing, worse was to come, all of it predictable – and predicted. As the OSCE report summarises, ‘By March 1999, the Yugoslav military/security forces were coping with two tasks: defeating the UCK [Kosovo Liberation Army] and preparing for an attack by NATO.’ Whether the increased pace of forced displacement was retaliatory, or engendered by a plausible fear of a NATO ground incursion, it was plain throughout the West that the perilous situation of the Kosovo Albanians would be made all the more dangerous by the start of the air campaign.[27] An OSCE report, ‘Human Rights in Kosovo’, states that ‘Summary and arbitrary killing became a generalised phenomenon throughout Kosovo with the beginning of the NATO air campaign against the federal republic of Yugoslavia on the night of 24-5 March.’[28]

What possible humanitarian outcome preferable to a patient conclusion of the Rambouillet Accord negotiations could have been achieved by the bombardment of Yugoslavia? With expulsions and abuses of human rights violations of every kind continuing on the ground in Kosovo, ground troops were never a serious political possibility. As a senior NATO officer quoted in the New York Times remarked, ‘We said from the outset that we couldn’t prevent atrocities and crimes against humanity with just an air campaign. But knowing that we had to keep an alliance of 19 nations together, we knew that if we asked for ground troops, we would be asking the impossible.’[29] Instead, the list of targets in Yugoslavia was extended to non-military maufacturing, oil supplies, roads and communications distant from Kosovo and even civilian infrastructure, such as water pumping facilities. Is the quality of the values that animated the intervention to be judged on the nature of the action, or by the mere fact of it? ‘What kind of soldier,’ it was asked, ‘is prepared to kill, but not prepared to die?’

By almost any measure – financial cost,[30] displacement of people subsequent to the start of the campaign,[31] number of people killed,[32] the environmental impacts of the bombing[33] – the campaign caused untold harm. Most important is the matter of the human rights situation in Kosovo. Has the bombing ended forced expulsions, murders and the persecution of minorities? In other words, did NATO succeed in humanitarian terms?

The second part of OSCE ‘As Seen, As Heard’ report, covering the period June-October 1999 sums up the human rights situation from the end of the war:

‘One discernible leitmotif emerges from this report. Revenge. Throughout the regions, the desire for revenge has created a climate in which the vast majority of human rights violations have taken place…With this climate of vindictiveness a third category of victims emerged: those individuals or groups who were persecuted simply because they had not been seen to suffer before…not only have communities been driven from their homes, but also the climate is not conducive to returns. As a result, the spiral of violence has driven a wedge between Kosovo’s communities, making ever more elusive the international community’s envisioned goal of ethnic co-existence.’[34]

The Security Council resolution which ended the war specifies that Kosovo remain a part of Yugoslavia, but the political status of Kosovan Albanians remains unaddressed; indeed, a peaceful political settlement that would have ended the apartheid-like conditions under which they lived is now no longer possible. Meanwhile, 50,000 international peacekeepers are accused by the Serbian and Albanian populations alike – and the other, persecuted minorities – of not doing enough to halt continuing abuses of human rights. Bernard Kouchner, the head of the UN administration in Kosovo has requested an additional 6,000 policemen to patrol the province but to date has received only 1,800.

The case against a post-Kosovo legal or normative adjustment to the prohibition against unsanctioned intervention

After a review of the relevant international law and the particular circumstances leading up to the unsanctioned NATO intervention in Kosovo, the legal scholar Bruno Simma concludes that we should

‘…regard the Kosovo crisis as a singular case in which NATO decided to act without Security Council authorization out of overwhelming humanitarian necessity, but from which no general conclusion ought to be drawn. What is involved here is not legalistic hair-splitting versus the pursuit of humanitarian imperatives. Rather, the decisive point is that we should not change the rules simply to follow our humanitarian impulses; we should not set new standards only to do the right thing in a single case. The legal issues presented by the Kosovo crisis are particularly impressive proof that hard cases make bad law.’[35]

Simma’s case is still stronger if one questions ‘overwhelming humanitarian necessity’ in this case and whether NATO can be said to have done ‘the right thing.’ It is national interests which make political action to address a humanitarian emergency an overwhelming necessity. One of the functions of the Security Council hurdle for interventions is that matters of great import both to international politics and international law should be subject to international scrutiny. Otherwise, the national interests of intervening states could all too easily be subsumed under their declaration of humanitarian need and urgency. The extent of the military provisions affixed to the Rambouillet Accord were unprecedented – (the UN peacekeeping forces for East Timor are not entitled to range over the whole of Indonesia) – and NATO’s insistence on Yugoslavia’s acceptance was backed with the threat of force. A Russian and/or Chinese veto of NATO action would have been quite appropriate, given that NATO had already violated Article 2.4 by the unsanctioned threat of force. And at that time, a genuine continuance of the Rambouillet negotiations, with the United Nations not debarred from its primary responsibility for peace and security, might not only have ended the most immediate suffering but also might have provided a peaceful political settlement.

A determination to address large-scale human suffering is certainly ‘the right thing’, at least in moral terms, but we judge the rightness of actions by their fitness to the ends and by just measure and proportion. Did anyone suppose that bombing Belgrade and other Yugoslav cities – and the targeting of its civilian infrastructure – would bring relief to the Kosovo Albanians, immediately or in the long term; or that this constituted humane means to humanitarian ends? And in both legal and normative terms, there is considerable doubt about the legality of the conduct of bombing campaign itself. NATO generals told the Philadelphia Inquirer in May that ‘Just focusing on fielded forces is not enough…The people have to get to the point that their lights are turned off, their bridges are blocked so they can’t get to work.’[36] These and other statements – together with the nature and extent of the bombing – certainly appear to bring the NATO campaign within the compass of the 1977 Protocol to the Geneva Convention. Article 52.2 states:

‘Attacks shall be limited to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in circumstances ruling at the time, offers a definite military advantage.’

Finally, if the declaration of ‘overwhelming humanitarian necessity’ is sufficient for one or more states to be judge and jury and to act without authorisation, oversight or accountability in this or any other case, we can hardly be surprised if a more general disregard for the prohibition against the use of force ensues. It should be remembered that in sum, the provisions of the UN Charter do not invalidate all intervention, but condition, control and legitimise it – and this has an enabling function which is all too easy to overlook. The Iraqi invasion of Kuwait was a threat to the key interests of a great many states, but on its own, that might not have been sufficient for forging common cause and united action between a collection of states as disparate as the United States, Saudi Arabia and the Soviet Union. The enforcement of international law was crucial to the political sustainability of the Gulf War coalition. In order for this to have been the case, the integrity of international law had to be intact. Now, few things could be more damaging to the standing of international law than that the world’s most powerful alliance (which includes three of the five Permanent Members of the Security Council) should have disregarded it; and still worse, declared its intention to adopt an instrumental approach to legal conformity.

Chechnya, too, presents us with ‘overwhelming humanitarian necessity’, but also with a number of hard political realities against which we measure our national interests. Are we to say that we will not intervene on behalf of the Chechens because to do so would violate international law? In the absence of any legal obligation to address humanitarian emergencies, shall we face Chechnya – and a dozen other sites of large-scale human suffering – and demand a right of humanitarian intervention? Or should a ‘right’ of humanitarian intervention only be understood as permissive, with ‘overwhelming necessity’ to be determined as individual states or alliances concur? On the other hand, if NATO can violate international law with impunity and with an apparent willingness to do so again should it see fit, shall we say that this act ushers in a normative change and that by some means or another, only ‘the right thing’ will be undertaken in unsanctioned interventions and that Article 2.4 will still serve to block the ‘wrong’ ones? If we cannot credibly accuse Russia of breaking the law, we can, of course, castigate it for gross violations of human rights. However, what gives that accusation its force and meaning is that human rights are codified in international law. Are international human rights instruments more important than Article 2.4 of the UN Charter?

What we have in Chechnya is the imposition of force-based order. And for all of the important differences between Chechnya and Kosovo, in the latter we have replaced one form of force-based order for another. Having violated international law to get to this pass, we now have a situation where a law-based order conducive to the enactment of human rights is unimaginably distant. Non-interventionist diplomacy and the appropriate use of the United Nations might have averted this mess, yet we seem determined to equip ourselves, at least within NATO, to engage in further unsanctioned interventions should we see fit. In the absence of any effective prohibition, it is reasonable to suppose that others will follow suit. This is a threat not only to the integrity of international law, but also to law-based international order, which includes the human rights we would champion.

The Case Against Unsanctioned Humanitarian Intervention: General Considerations

1. ‘Unsanctioned’ is also unvalidated, uncontrolled and unaccountable. If intervening states are to determine for themselves what counts as legal or valid, or what comprises ‘humanitarian necessity’, then the way is open for a re-assertion of force-based international relations. It must be borne in mind that one of the achievements of the post-World War II international order has been the gradual extension of law into relations across the globe and at every level – a progress marked by the advance of human rights. If unaccountable sovereignty is a threat both to human rights within borders and to regional stability more generally, so too will be states – however good their standing – who are given, or who assert, licence to intervene in other states. Large-scale human suffering cannot effectively be addressed in the absence of regard for the legal foundations of international order.

2. Humanitarian ‘considerations’ are not difficult to find. There is no ‘pure’ humanitarianism. What makes a humanitarian crisis is never an objective assessment of the degree of human suffering on its own, but its conjunction with national interests. How else to account for the fact that while Rwanda degenerated into genocidal frenzy in 1994, the situation in Haiti was deemed by the Security Council to ‘pose a threat to international peace and security’ sufficient for the authorisation of a considerable military incursion? If the basis of states asserting either a legal or a moral right to intervene is their assertion of dire humanitarian need, the consequences of almost any violent conflict will serve. In other words, in the absence of a legal prohibition to intervention, there would be little standing in the way of states intervening in other states, as they see fit.

3. If we are to have a ‘right’ of states to humanitarian intervention by way of routine violation of Article 2.4 – whether or not this counts as the development of customary international law – then, anyone can play. Any loosening of the prohibition against the unsanctioned use of force in Article 2.4, whether it is through erosion of the prohibitive norm or characterised as nascent customary international law, is an invitation to all states to depart from law-based order. ‘The task before us is not to gauge or enlarge the sphere of activity open to states, but to construct an international order which – to the extent that some states cannot or will not internalise the most basic tenets of human rights – offers redress which is codified as legal, perceived as legitimate, unbiased and proportional in application, and effective. What is required is not a legal or quasi-legal empowerment of states to assert that their interventions are undertaken on behalf of the international community, but a range of measures (including intervention when appropriate) which are collectively determined, sanctioned and controlled. In other words, not expediency and pragmatism, but law enforcement.’[37]

4. The assertion of humanitarian motive for intervention distances protagonists from scrutiny under Just War criteria. When intervention becomes ‘humanitarian intervention’ it gains moral weight at the expense of legal precision. Because the phrase is morally loaded, it is distanced from the application of Just War criteria. More worrying is the apparent contempt that some in NATO had for the possibility that their actions might be subject to international legal scrutiny:

‘When questioned on May 16 about the possibility of NATO liability for war crimes before the ICTY, NATO spokesman Jamie Shea said that “NATO is a friend of the Tribunal…NATO countries are those that have provided the finances to set up the Tribunal, we are among the majority financiers.” He repeated the same message on May 17: NATO countries “have established these tribunals…fund these tribunals…and support on a daily basis their activities.” No, he did not anticipate indictments against NATO leaders or personnel.’[38]

These pronouncements are carelessly ambiguous, at best. They are also damaging to the perceived legitimacy of the ICTY and to the larger enterprise to provide a legal foundation for the redress of gross violations of human rights.

5. Perceived legitimacy is important. The rather inward-looking justifications which attended the NATO campaign against Yugoslavia and the assertions that NATO was in fact acting in conformity with international law[39] neglect the perceptions of much of the rest of the world. However expert legal opinion might finally pronounce on the war, the legal and political consequences are as likely to be shaped by perceptions of its legitimacy. In the weighing up the claims of justice against the strictures of law, we can expect that the sidelining of the United Nations, the ultimatum attached to the Rambouillet Accord and the conduct of the war itself will be taken into account as well as the breach of Article 2.4 for professed humanitarian purposes. There is also no shortage of official pronouncements to ponder, such as the following from UK Secretary of State Robin Cook, which appears to place the humanitarian concerns in a more familiar context:

‘I am well aware that one should not commit servicemen to take the risk of military action unless our national interest is engaged. I firmly believe that upholding international law is in our national interest. Our national security depends on NATO. NATO now has a common border with Serbia as a result of the expansion to embrace Hungary and other countries of central Europe. Our borders cannot remain stable while such violence is conducted on the other side of the fence. NATO was the guarantor of the October agreement. What credibility would NATO be left with if we allowed that agreement to be trampled on comprehensively by President Milosevic and did not stir to stop him?’[40]

It might be asked in response what credibility the United Nations is left with when nations take it upon themselves to determine a ‘threat to international peace and security’, which is the preserve of the UN. Moreover:

‘The decisions of the UN command authority because they are the outcome of an international political process of the assertion and reconcilliation of national interests. It is the political process that authenticates UN resolutions and converts them into authoritative prescriptions for the common good of humanity. The authority conferred by the claim to be acting in the interest of mankind can be legitimated only by a political process sanctified by the international community as a whole.’[41]

Whether an act of law-breaking is counted as a challenge to a law and not to the rule of law is not a matter of intent – and the risks to the general tenor of law are considerable.

6. What is the hallmark of the non-legal or extra-legal ‘shared values’ of the international community? If the difference between humanitarians and vigilantes is not law, but the particulars of their ‘shared values’, then all we have to choose between is varieties of vigilantism. The ‘shared values’ of international law are order and justice, collectively determined. If either or both of these become the province of a group of self-selecting states, then we have the law of the jungle. Mediating differences between nations, regions and cultures, with the variety of cross-cutting economic, social and political issues now extant is unlikely to become any easier in the coming decades, but outside of a legal framework, it will be impossible. Consider, for example, the debate about ‘Asian values’ in recent human rights debates.[42] Currently, this debate is conditioned by a rich and near-universal web of international law. However, if other value-driven claims on justice or declarations of core interest can be pursued outside of a legal framework, especially by states, we could see the painstaking work of decades unravel.

The proclaimed values of any country are not an easy thing to unpick from its political disposition and perceived national interests. How else to account for the fact that the only two nations not to have signed the Convention on the Rights of the Child are Somalia and the United States? Or that the US opposed the establishment of the International Criminal Court in the company of China, Libya, Iraq, Algeria, Sudan and Iran? When can a state fairly be dubbed ‘rogue’ if not by its general adherence to the shared values of the international community as expressed through adherence to and development of international law?

7. Law-based order is the foundation for the enactment of human rights as well as for their enforcement. The progress of human rights in the second half of the twentieth century has resulted more frequently – and more lastingly – as a result of pressure from below than enforcement from above. A fascinating literature has begun on the process by which oppressive states are ‘socialized’ – that is, how international norms come to be incorporated into domestic practices by a variety of means, domestic and international.[43] There is no single pattern in this process but human rights activists depend on the strength and coherence of the international norm to legitimize their claims and, when oppressive states are sensitive to varying degrees of exclusion, this has force because of the extent to which human rights conventions are so thoroughly worked into the commonplaces of international relations. Law-based constraints on behaviour are always likely to invalidate individual action to redress clear injustices – a situation greatly aggravated in the case of considerable and intense human suffering in which the law does not provide for any legally competent agent of redress. But we cannot have a functioning system of law and an opt-out for self-appointed sheriffs, nor a law-based order which can be responsive to every exceptional circumstance.

Those who contend that Article 2.4 of the UN Charter is now dysfunctional and must be either side-stepped or amended would do better to consider how the United Nations can be brought back to an authoritative standing which befits its legitimacy.

If adherence to international law becomes optional for some states, the UN will have been hollowed out and human rights everywhere will become precarious.

8. As sovereignty becomes more permeable, international law becomes all the more important for an equitable, stable and sustainable future. It is noteworthy that UK Prime Minister Tony Blair couched his defence of the NATO campaign in the context of globalisation:

‘We are witnessing the beginnings of a new doctrine of international community. By this I mean the explicit recognition that today more than ever before, we are mutually dependent, that national interest is to a significant extent governed by international collaboration and that we need a clear and coherent debate as to the direction this doctrine takes us in each field of international endeavour.’[44]

International collaboration matters, but its foundation in the world depicted by Mr Blair depends on international law. The extent to which sovereign control over many issues has already been loosened and the increasing permeability of states means that negotiating conflicting needs between peoples, states and organisations – and in particular, between states – will require a functioning legal order by which all states are bound and which all perceive to be legitimate. In the speech by the US Ambassador to the UN cited earlier, he asserts, ‘In addition to our use of military power, we have plenty of non-military instruments. We have enormous economic leverage to use through the WTO, IMF and World Bank, and other financial and trade organisations. We will not hesitate to seek out goals through them as well.’ This might be read as straight-forward realpolitik, but the powerful have the most to gain from the stabilisation and continuance of the prevailing order, which cannot be achieved by power alone, in Seattle no less than Belgrade.

9. Genuine humanitarian intervention will only ever address a small number of our failures – and in all probability, not the worst. The reluctance of Western states to intervene in the former Yugoslavia, often cited as ‘lack of political will’ was also in some measure a calculation of whether a satisfactory political end could be achieved by military means at an acceptable cost. The crisis in central Africa continues unabated on the same calculus. There has been no rush, either unilaterally or under the sanction of the United Nations, to address these and other crises of ‘overwhelming humanitarian necessity’. That being the case, the political interests of intervening states become more visible and their claims to legality under exceptional circumstances, or appeals to morality, more suspect. Would a right of humanitarian intervention – however it was codified – do anything more than sanction those who would not otherwise be constrained? Would a right of humanitarian intervention make a difference to the suffering populations of the African Great Lakes, or would it merely empower the already powerful?

10. How much can humanitarian intervention accomplish? Although it might be credible to imagine the imposition of human rights on a state – say, through a rights-based constitution – can they ever realistically be imposed on a people? How successful were we at imposing democracy – let alone human rights – on the people of Cambodia, in the absence of a viable democratic culture and, come to that, a culture of rights? Human rights are lived expectations or they are nothing.

There is also the matter of sustaining political interest in a ‘rescued’ population once the larger political dynamics have been addressed. Since the Kurdish safe haven operation at the end of the Gulf War, Turkey – a member of the NATO Alliance and, presumably, a party to the ‘shared values’ proclaimed over the Kosovo campaign – has mounted several formidable (and illegal) military incursions into Iraq, against the Kurds.

11. Challenges to the indivisibility of law are even more damaging than specific violations. Rosalyn Higgins opened her study of the nature and function of international law by stating that ‘International law is not rules. It is a normative system.’[45] The problem with a la carte conformity with the law prohibiting state interventions is the danger that it will unleash more general non-conformity in regard to a legally ordered international system; or that one or more states declaring their professed willingness to continue in this vein will delegitimize the law in the eyes of others, to the same effect.

There is a general failure to note the larger political and moral climate in which the actions of powerful states are regarded. However satisfying it might be for Western states to comfort themselves that their actions are legally justified and morally right, this is done at the risk of shrinking what can reasonably and consistently count as the ‘international community’. From a non-Western perspective, therefore, the US retaliatory bombing of targets in Sudan and Afghanistan, together with the unsanctioned cruise missile attacks against Iraq can credibly be seen as of a piece with the declared humanitarianism of the bombing of Yugoslavia, since it too was illegal. There is a sense in which our political and legal debate is dangerously abstracted from the perceptions of the largest part of the world. This gives our self-satisfaction about the legality and moral rightness of the bombing of Yugoslavia something of the flavour of Mark Twain’s comment that ‘The music of Wagner is a lot better than it sounds.’

And there is a larger pattern of state behaviour with which the breach of Article 2.4 is consistent – that is, a growing reticence of states to extend their notion of ‘shared values’ beyond the bounds of narrowly-conceived self-interest. The unwillingness of the United States to accede to the limits agreed at the Kyoto Convention, to support the establishment of an International Criminal Court or to ratify the Comprehensive Test Ban Treaty are notable recent examples from one state alone. At the very moment when the world’s most powerful states are in relative decline, the disposition that would best serve their long-term interests is the codification, enactment and reinforcement of international law. It is distressing to see a cornerstone of international order violated in the name of law as well as justice; and still worse, rather than moving to strengthen the UN, the one international body with the authority to sanction enforcement, NATO states are apparently prepared to treat Article 2.4 as though it were an inconvenience.

Conclusion

The argument here is not in support of an unbending legal formalism, nor in disregard of the suffering engendered by gross violations of human rights; indeed, because human rights themselves depend on a functioning system of international law, my concern is with violation of one of the foundations of the international legal system and a question as to whether it can continue to withstand such challenges. In other words, I regard the violation of Article 2.4 of the UN Charter not only as a specific act of law-breaking, but also as undermining the ethos of law – the perception that its values are universally shared, its prohibitions universally applicable and that its benefits arise from a rule-based international order which requires consistency rather than instrumentalism. The question posed by Thomas Franck nearly 30 years ago has even more purchase today: ‘[The] demise [of Article 2(4)] does raise a serious question for the nations: Having violated it, ignored it, run roughshod over it, and explained it away, can they now live without it?’[46]

Safeguarding a law-based international order against a free-for-all based on states’ moral or humanitarian declarations will not protect us from moral and practical dilemmas; but then, humanitarian crises do not override the political interests and calculations of states even now. Nor is the line between law-based international order and human security a simple matter of squaring off human rights versus sovereignty, since the principal actors in the bombing of Yugoslavia maintain a close interest in maintaining the ten-year sanctions regime against Iraq which, in terms of the scale of human suffering engenderd, dwarfs events in Kosovo.[47]

The declaration that NATO must not be subordinated to any other international body is a defiance of international law and an invitation to other states and organizations to regard themselves similarly and act accordingly. Does anyone suppose that a legal and ethical foundation for relations between states and peoples will be better served in a world so constituted?


[1] Article 2(4) of the UN Charter: ‘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.’

[2] Richard B. Lillich, ‘Forcible Self-help By States to Protect Human Rights,’ Iowa Law Review, Vol.53 (1967), p.344.

[3] Falk, The United States and the Doctrine of Nonintervention in the Internal Affairs of Independent States, cited in ibid.

[4] Edward Gordon, ‘Article 2(4) and Permissive Pragmatism,’ in ‘Law and Reciprocity,’ Proceedings of the American Society of International Law, 78th Annual Meeting, Washington, D.C., 12-14 April, 1984.

[5] Christopher Greenwood, ‘Is There a Right of Humanitarian Intervention?’ The World Today, Vol.49, No.2, (February, 1993).

[6] Richard Falk, Human Rights and State Sovereignty (New York: Holmes and Meier Publishers, 1981), esp. Chapter 6.

[7] Astri Suhrke, ‘Human Security and the Interests of States,’ Security Dialogue, Vol.30 (3) (1999), pp.265-76; Richard Falk, On Humane Governance (Cambridge: Polity Press, 1995).

[8] Jarat Chopra and Thomas Weiss, ‘Sovereignty is No Longer Sacrosanct: Codifying Humanitarian Intervention,’ Ethics & International Affairs Vol.6, (1992) pp.95-117.

[9] Speech by the Prime Minister, Tony Blair, to the Economic Club of Chicago, 22 April, 1999 (http://www.fco.gov.uk/news/speechtext.asp?2316).

[10] Michael J. Glennon, ‘The New Interventionism: The Search for a Just International Law,’ Foreign Affairs, (May/June, 1999), pp.2-7.

[11] Anthony Clark Arend and Robert J. Beck, International Law and the Use of Force (London: Routledge, 1993). I am unaware of the authors of this work having written about the NATO intervention, but the arguments in their book are consistent with the general tenor of ‘new doctrine’ advocates and it is likely that their book will be of renewed interest.

[12] Quoted in Bruno Simma, ‘NATO’s Future “Strategic Concept”: From “Out of Area” to “Out of Treaty”?’ (http://www.ejil.org/journal/Vol10/No1/abl-3.html).

[13] Ambassador Richard C. Holbrooke, ‘A New Realism for a New Era: The US and the UN in the 21st Century,’ Address to the National Press Club, 2 November, 1999 (http://www.un.int/usa/99_103.htm).

[14] Michael J. Glennon, op. cit., p.7.

[15] Ibid, p.4.

[16] Michael J. Levitin, ‘The Law of Force and the Force of Law: Greneda, the Falklands, and Humanitarian Intervention,’ Harvard International law Journal 2 (Spring, 1986), pp.621-57; Michael J. Bazyler, ‘Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia,’ Stanford Journal of International Law, (1987), pp.547-619.

[17] Albrecht Randelzhofer, ‘Aricle 2(4)’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 1994), pp.106-28; Thomas M. Franck, ‘Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States,’ American Journal of International Law 64 (1970), pp.809-37.

[18] Thomas M. Franck and Nigel S. Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force,’ American Journal of International Law 67 (1973), pp.275-305; Christopher Greenwood, op. cit.

[19] For example, the UK Attorney General: ‘I say very firmly that the UK has acted and will continue to act, in accordance with international law.’ ICJ Reports, 11 May, 1999.

[20] Mark Littman, Kosovo, Law and Diplomacy (Centre for Policy Studies paper, November, 1999), f.n.36.

[21] See Franck and Rodley, op. cit.; Adam Roberts, ‘Humanitarian War: Intervention and Human Rights,’ International Affairs (Vol.69, No.3), 429-449.

[22] Detailed in Bjørn Møller, ‘The Slippery Slope of Authority Eroded: A Rejoinder,’ Security Dialogue (30)1 (1999), pp.87-90.

[23] Michael J. Glennon, op. cit., p.5.

[24] The OSCE Report, ‘Kosovo/Kosova: As Seen, As Told,’ is published at http://www.osce.org/kosovo/reports/hr/

[25] Rambouillet Accord – Interim Agreement for Peace and Self-Government in Kosovo: http://jurist.law.pitt.edu/ramb.htm

[26] Appendices A and B to Chapter 7 of the Rambouillet Accord, ibid.

[27] For example, George Robertson, writing in October 1999: ‘We were conscious that military action might be seized upon by Milosevic as an excuse to accelerate the offensive already under way. But while we had anticipated that the offensive could involve operations against the KLA and violent repression of the civilian population, we could not have predicted the full horror and extent of the brutality.’ Cited in Mark Littman, op. cit., p.17

[28] Cited in Robert Skidelsky, ‘NATO’s Deadly Legacy from Kosovo,’ Financial Times, 15 December, 1999.

[29] Cited in The Observer, 4 April, 1999.

[30] A study by the BBC estimates the cost (including peacekeeping, reconstruction and and humanitarian aid) at £30 billion (with the cost of the bombing estimated at £2.63 billion). ‘Bill for Kosovo Bombing Goes Over £30 Billion,’ The Guardian, 15 October, 1999; see also Yugoslavia (Serbia-Montenegro) Country Report, Economist Intelligence Unit, 3rd Quarter, 1999.

[31] The OSCE estimates that 90 per cent of the Kosovo Albanian population was displaced in 1999; in addition, some 100,000 Serb IDPs are estimated to have left Kosovo. By comparison, the report notes that ‘The fighting between Serbian forces and the UCK in 1998 had resulted in the (largely internal) displacement of some 350,000 people in Kosovo by the end of that year.’ http://www.osce.org/kosovo/reports/hr/part1/ch14.htm

[32] The Economist Intelligence Unit, op. cit., estimates 1500 civilians killed and 8000 wounded.

[33] The extent of environmental damage, particularly long-term effects, is difficult to calculate accurately, but the following passage from the Economist Intelligence Unit Report (ibid), is indicative: ‘…Among the worst-hit towns was Pancevo, an industrial town north of belgrade in which refineries, a fertiliser plant and petro-chemoical works were repeatedly targeted. The damage released toxic chemicals into the air and the Danube, including an estimated 1,500 tonnes of vinyl chloride, at least 3,000 times higher than permitted levels. Huge quantities of other noxious chemicals burned or gushed out of storage facilities, including 15,000 tonnes of ammonia (which was used to make fertiliser), 800 tonees of hydrochloric acid, 250 tonnes of liquid chlorine, vast quantities of dioxin and 100 tonnes of mercury. The oil refinery at Pancevo was repeatedly bombed: 20,000 tonnes of crude oil were burnt up in one bombardment alone, and a cloud of black smoke hung in the air for ten days.’

[34] http://www.osce.org/kosovo/reports/hr/prt2/03-execsum.htm

[35] Bruno Simma, ‘NATO, the UN and the Use of Force: Legal Aspects (2: Kosovo: A Thin Red Line),’ http://www.ejil.org/journal/Vol10/No1/ab1-2.htm

[36] Robert Hayden, ‘Humanitarian Hypocrisy,’ http://www.jurist.law.pitt.edu/hayden.htm

[37] Jim Whitman, ‘A Cautionary Note on Humanitarian Intervention,’ reprinted in the Journal of Humanitarian Assistance, http://www.jha.ac/articles/a001.htm

[38] William Hayden, op. cit.; however, see Emma Daly, ‘Dossier of NATO “Crimes” Lands in Prosecutor’s Lap,’ The Observer, 26 December 1999

[39] For example, UK Secretary of State for Defence George Robertson: ‘We are in no doubt that NATO is acting within international law. Our legal justification rests upon the accepted principle that force may be used in extreme circumstances to avert a humanitarian disaster.’ Hansard, col.617, 25 March 1999.

[40]Kosovo and the Modern Europe,’ speech by the Foreign Secretary Robin Cook at the Lord Mayor’s Easter Banquet, 14 April 1999.

[41] Ramesh Thakur, ‘UN Authority and US Power,’ in Anthony McDermott and Kjell Skjelsbaek (Eds), The Multinational Force in Beirut, 1982-4 (Miami: Florida International University Press, 1991), p.111.

[42] Joanne R. Bauer and Daniel A. Bell (Eds), The East Asian Challenge to Human Rights (Cambridge: Cambridge University Press, 1999); Peter Van Ness (Ed.), Debating Human Rights: Critical Essays from the United States and Asia (London: Routledge, 1999).

[43] Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (Eds), The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press), 1999.

[44] Speech by the Prime Minister, Tony Blair, op. cit.

[45] Rosalyn Higgins, Problems and Process: International law and How We Use It (Oxford: Oxford University Press, 1993), p.1

[46] Thomas M. Franck, op. cit., pp.809-10,

[47] Geoff Simons, The Scourging of Iraq: Sanctions, Law and Natural Justice (London: Macmillan, 1998).

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