QUESTION 1

To what extent will the Kosovo campaign itself be a precedent for the development of customary international law?

ANSWER

Not at all.

For state practice to qualify as a source of customary law "what is sought for is a general recognition among states of a certain practice as obligatory" or, in the present context, as creating a right.

  What we are concerned with is a right to use force without the authority of the Security Council.

  The Kosovo campaign cannot qualify for this purpose as it was not generally recognised as lawful.

  Thus, in the emergency session of the Security Council on 24 March 1999, Russia, China, Belarus and India opposed the action as a violation of the Charter. These countries alone represent about 40 per cent of the population of the world as compared with about 10 per cent represented by NATO. It is believed that action was also opposed by the rest of the CIS States, the Group of Non-Aligned States and by several other States that spoke against it at the UN General Assembly in September 1999.

  Furthermore, of the States that supported the action at the Security Council on 24 March 1999, only two (UK and the Netherlands) argued that the action was a legitimate legal response to a humanitarian catastrophe. Germany, speaking on behalf of the Presidency of the EU, argued that the members of the EU were under a moral obligation but did not assert a legal obligation or even a legal right.

QUESTION 2

Could objective criteria be devised which would establish without doubt when humanitarian intervention was justifiable.?

ANSWER

No.

I agree with Professor Vaughan Lowe that "there is no reasonable prospect of consensus on the definition."

  I consider that the central difficulty, once the approval of the Security Council to the use of force is removed, is that of identifying the substitute body which would decide whether the defined conditions exist in fact in a particular case. The matter cannot be left to the uncontrolled decision of whatever state or group of states is minded to take advantage of the supposed right of intervention, for that would be a recipe for chaos.

  For example, I think everyone would agree that it would necessarily be a pre-condition of the exercise of a right of forceful intervention that all peaceful alternatives should have been exhausted. Who is to decide whether they have or have not?

  Another example is the condition of proportionality. This means that the degree of force contemplated must be no more than is appropriate to the abuse sought to be prevented. This also requires an objective assessment.

  It must also be a virtual certainty that the force contemplated will do more good than harm. This again requires an objective judgment.

  Thus, even if it were possible to agree a formula governing such interventions, there would still have to be a further agreement as to the body which could give the final authority for force to be used.

  The suggestion that it might be a regional authority which performs this function meets the difficulty that Article 53 of the Charter expressly provides otherwise. It seems highly improbable that this Article would be amended under Chapter XVIII. We are left, therefore, with the Security Council as the only credible body for this purpose.

QUESTION 3

How can a forcible intervention be limited to humanitarian objectives?

ANSWER

With great difficulty.

I refer to the Nicaragua decision of the International Court of Justice quoted on page four of my pamphlet where the Court said:

"the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of installations. . ."

  The difficulty increases as the scale of force increases. For example, the dropping of 24,000 bombs in the NATO campaign necessarily involved a high risk of "collateral damage".

QUESTION 4

In what circumstances could the bombing of the Chinese Embassy building have been lawful?

ANSWER

None.

In fact NATO accepted that the bombing was unlawful and indefensible. It was said to have been a mistake. I believe an apology was made and compensation given. So I assume the question is a hypothetical one.

  On this basis the answer is that there are no circumstances in which the bombing could have been lawful, except where the embassy has ceased to be used for diplomatic purposes. Article 45 of the Vienna Convention.

QUESTION 5

Even it the Belgrade authorities had accepted the Rambouillet agreement, would its acceptance not have been voidable as a result of the element of coercion?

ANSWER

Yes.

QUESTION 6

Do you believe it is either conceivable or desirable that the legality of NATO actions to be subject to the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia?

ANSWER

As to the present position I believe a distinction has to be drawn between the actions of NATO in initiating the bombing and those which took place during the bombing.

As to the former, I believe the position is that under the convention setting up this Tribunal "crimes against peace", such as were made against the defendants at Nuremberg in respect of the planning of aggressive war, are not within the jurisdiction of the Tribunal.

  I do not think it is politically conceivable that the jurisdiction of the Tribunal will now be extended to cover such a crime. I do think, however, that the International Court of Justice could and should determine the legality of the NATO action.

  Acts committed during the bombing are within the jurisdiction of the Tribunal and I see no reason why it should not exercise that jurisdiction. There has been a considerable amount of material put before the Tribunal to induce it to do so. I believe a refusal to give such material equal consideration with that accorded to complaints against the Serbs would greatly weaken the Tribunal by throwing doubts upon its impartiality and freedom from political influence.

QUESTION 7

If Montenegro were to declare its independence, what would be the legal status of the Federal Republic of Yugoslavia and, in turn, of Kosovo within the FRY?

ANSWER

At present the FRY is internationally recognized as a sovereign state of which Montenegro and Kosovo form part. The position of Kosovo as part of FRY was confirmed by Security Council Resolution 1244/99.

This position will remain unchanged unless and until either or both of the two provinces is granted de jure or de facto recognition as an independent sovereign state. In the case of the UK the recognition would have to be by the UK itself. A declaration of independence will itself not affect any change in legal status.

  If such recognition is accorded then Yugoslavia would continue as a sovereign state but only of such territories as were left to it.

Mark Littman

22 February 2000