Memorandum submitted by Professor Ian
Brownlie CBE, QC
1. This Memorandum has been prepared in
accordance with the request of the Foreign Affairs Committee (letter
dated 28 July 1999), which request referred to a written memorandum
"on the area of international law".
2. The writer is the author of a well-known
textbook, Principles of Public International Law, first
published in 1966 (now in its fifth edition), which has been published
in Japanese, Portuguese and Russian editions. In 1996 he was elected
to membership of the International Law Commission of the United
Nations on the nomination of the Governments of the United Kingdom
and India. The Commission is a body of independent experts engaged
in the codification and progressive development of international
law. In 1993 the writer was awarded the CBE in the Queen's Birthday
Honours "for services to international law".
3. In the course of his career as a member
of the English Bar, specialising in international dispute, he
has worked as legal adviser and/or advocate for at least 35 States.
In this context it is necessary to point to the fact that, as
a part of his professional involvements, he has acted as Counsel
and Advocate in the recent proceedings before the International
Court of Justice on behalf of Yugoslavia. It is also necessary
to stress that the Memorandum represents his own views and that
there has been no input from any Government or Government-related
4. Whilst the writer has asked to deal with
"the area of international law", it will be necessary
in certain contexts to refer to questions of fact. As far as possible,
the relevant issues of fact will be treated as hypotheses, on
the basis of which an appropriate examination of the legal issues
can be carried out.
(a) The Purpose
5. As a necessary preliminary the justifications
offered by the United Kingdom and other NATO members will be examined.
This survey will relate to four sources: statements in the House
of Commons and the House of Lords, statements in the United Nations,
other public statements, and, finally, statements in speeches
before the International Court of Justice. The first three sources
refer exclusively to the position of the United Kingdom. The fourth
source provides evidence of the position of the NATO Governments
6. As will be seen, the positions of the
NATO States were fairly consistent.
(b) Statements in the House of Commons
7. The primary characteristic of the statements
is the relative absence of reference to specific considerations
of public international law.
8. The statements by Ministers fall into
three general categories. The first was the assertion of a legal
right to take action "to prevent humanitarian catastrophè.
Thus, on 1 February 1999, the Foreign Secretary, in reply to a
question, made the following statement:
"My hon. Friend asked also about the legal
base for any action. We are clear that we have legal authority
for action to prevent humanitarian catastrophe and we are all
deeply worried that we shall be looking at just such a catastrophe
unless we are able to get a political settlement under way. I
stress to my hon. Friend and to the House that the proposal that
I have outlined this afternoon was welcomed unanimously by the
Security Council and that no permanent member disagreed with it".
(Hansard, 1 Feb. 1999, col 605).
9. Similar statements were made on other
23 March, 1999, the Prime Minister : cols
24 March, the Deputy Prime Minister : col
25 March, the Foreign Secretary : col
25 March, the Defence Secretary : cols
10. The second category of statements involves
the assertion that military action, or the threat thereof, would
be undertaken "in the event of Belgrade not complying with
the Contact Group's demands". This is a reference to the
peace talks at Rambouillet. The relevant statements are as follows:
25 Jan 1999, the Defence Secretary : col
16 Feb, the Foreign Secretary : col 721.
23 March, the Prime Minister : cols 161-
25 March, the Foreign Secretary : col
14 April, the Prime Minister : cols 19-21.
11. The third category of statements involves
reliance upon Security Council resolutions 1199 and 1203. The
relevant statements are as follows:
23 March, 1999, the Prime Minister : col
24 March, the Deputy Prime Minister : col
25 March, the Defence Secretary : cols
12. The extent to which international law
is being relied upon in these various statements (of all three
categories) is difficult to assess. The statement made on 1 February
by Mr Cook refers in clear terms to "the legal base for any
On the other hand, the Prime Minister's major
statement on 25 March (the day after the bombing commenced) makes
no single reference to legal considerations, and, also on 25 March,
Mr Lloyd, the Minister of State, referred only to a "moral
obligation" : col 543.
13. The position is complicated further
by a tendency to combine the humanitarian theme with the use of
force to implement "the Rambouillet Accords" : see the
Prime Minister's statements on 23 March and13 April. The relevance
of "the Rambouillet Accords" will be examined below,
(c) Statements in the House of Lords
14. Lord Kennet asked the following question
on 16 November 1998:
"Whether the concept of "overwhelming
humanitarian necessity" (as now used by the Government in
connection with the possible use of force by NATO in the context
of Kosovo) is recognised in international law; and, if so, in
what form; and
What is their own definition of "overwhelming
humanitarian necessity" ; and whether there is a consensus
within the United Nations Security Council:
(a) on the meaning and legal validity of the concept;
(b) on the authority it may confer on states or group
of states proposing to use military force in the absence of a
United Nations Security Council Resolution specifically requiring
or permitting the use of force; and
Whether "overwhelming humanitarian necessity"
overrides other principles of international law; and, if so, how
are the circumstances in which it may do so to be recognised by
the international community; and by whom should they be recognised
if military action is lawfully to follow; and [HL3698]
Whether unilateral declarations alleging "overwhelming
humanitarian necessity" may confer legality on threats or
uses of force of interference within sovereign states that would
otherwise be unlawful; and [HL3699]
Whether the concept of "overwhelming humanitarian
necessity" and related legal doctrines have been considered
by the International Court at The Hague."
(Lords, 16 November 1998, WA, col 139)
15. Baroness Symons replied:
"The prohibitions on the use of force contained
in the UN Charter do not preclude the use of force by a state
or group of states in self-defence in accordance with Article
51 or under the authorisation of the Security Council acting under
Chapter VII of the Charter. There is no general doctrine of humanitarian
necessity in international law. Cases have nevertheless arisen
(as in northern Iraq in 1991) when, in the light of all the circumstances,
a limited use of force was justifiable in support of purposes
laid down by the Security Council but without the council's express
authorisation when that was the only means to avert an immediate
and overwhelming humanitarian catastrophe. Such cases would in
the nature of things be exceptional and would depend on an objective
assessment of the factual circumstances at the time and on the
terms of relevant decisions of the Security Council bearing on
the situation in question."
16. Subsequently Baroness Symons clarified
the Government's position in a letter to the Earl of Lauderdale.
The key passage from this document was quoted in a speech by Lord
Lauderdale on 6 May 1999, as follows:
"What about some of the other things that
have been going on? I have to thank the noble Baroness the leader
of the House for a letter that she kindly wrote to me about the
legality of all this. She wrote to me on 16 April and placed a
copy of her letter in the Library, so I take it that I am free
to quote it here. I have askedas reported at col 644 of
the Official Report of 13 Aprilwhat was the legal
basis for military action against Yugoslavia. The noble Baroness
`I replied that, in exceptional circumstances,
the use of force was justifiable when that was the only means
to avert a humanitarian disaster. However, I mistakenly gave the
impression that this [new] basis was also set out in a United
Nations' resolution. It is not. But the force being used on the
grounds of humanitarian necessity is in support of purposes laid
down by the Security Council'.
That is very different from having a direct mandate
from the United Nations. I must thank the noble Baroness for her
letter to me. As I have said, I hope that as she said that she
would put a copy in the Library I have not breached any confidence
in reading it out."
(Lords, 6 May 1999, col 861).
17. In the debate on 6 May Baroness Symons
reaffirmed her written answer of 16 November (Lords, 6 May 1999,
(d) Statement by the UK Permanent Representative
in the Security Council
18. The official position of the United
Kingdom was set forth in a statement by the Permanent Representative
to the United Nations, Sir Jeremy Greenstock, on 24 March. The
key passages are as follows:
In defiance of the international community, President
Milosevic has refused to accept the interim political settlement
negotiated at Rambouillet; to observe the limits on security force
levels agreed on 25 October; and to end the excessive and disproportionate
use of force in Kosovo.
Because of his failure to meet these demands,
we face a humanitarian catastrophe. NATO has been forced to take
military action because all other means of preventing a humanitarian
catastrophe have been frustrated by Serb behaviour.
We have taken this action with regret, in order
to save lives. It will be directed towards disrupting the violent
attacks being perpetrated by the Serb security forces and weakening
their ability to create a humanitarian catastrophe. In the longer
term, the International Criminal Tribunal, whose mandate extends
to Kosovo, will hold those responsible for violations of international
humanitarian law accountable for their actions.
The action being taken is legal. It is justified
as an exceptional measure to prevent an overwhelming humanitarian
catastrophe. Under present circumstances in Kosovo there is convincing
evidence that such a catastrophe is imminent. Renewed acts of
repression by the authorities of the Federal Republic of Yugoslavia
would cause further loss of civilian life and would lead to displacement
of the civilian population on a large scale and in hostile conditions.
Every means short of force has been tried to
avert this situation. In these circumstances, and as an exceptional
measure on grounds of overwhelming humanitarian necessity, military
intervention is legally justifiable. The force now proposed is
directed exclusively to averting a humanitarian catastrophe, and
is the minimum judged necessary for that purpose."
19. This statement makes the clear assertion
that the action is legal but no specific international law source
is invoked and, in particular, no reference is made to the United
(e) Statements on Behalf of NATO Member States
in Proceedings before the International Court of Justice
20. In May of this year Yugoslavia sued
10 Member States of NATO before the International Court of Justice
in respect of the bombing campaign and its consequences, including
civilian deaths, injuries and privations, the effect on navigation
on the Danube, and damage to the environment. The first procedural
development involved a request by Yugoslavia for interim measures
of protection. The ramifications of these proceedings are examined
below, paras 108-11. For present purposes the proceedings constitute
a further source for official indications as to the legal justification
for the air strikes against Yugoslavia.
21. The Belgian delegation produced the
most elaborate essay in justification, presenting the justification
in the form of four elements (CR 99/15, pp 6-18).
First: reference is made to Security Council
resolutions 1160 (1998), 1199 (1998) and 1203 (1998).
Second: it is asserted that armed humanitarian
intervention is compatible with Article 2, paragraph 4, of the
United Nations Charter. This provision reads as follows:
"4. 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
In this context the Belgian argument is that
Article 2, paragraph 4, only applies to interventions directed
against the territorial integrity or political independence of
the state in question (CR 99/15, p 16).
Third: certain historical episodes are invoked
as precedents: the intervention of India in East Pakistan, the
intervention of Tanzania in Uganda, and the intervention of West
African States in Liberia and Sierra Leone.
Fourth: the state of necessity is invoked. (ibid,
pp 17-18). This issue will be examined below, paras 99-100.
22. Four delegations failed to offer any
clear legal justification. The references are as follows:
23. Five delegations used the formula relating
to the existence of a humanitarian catastrophe, though without
giving the formula any distinct legal underpinnings. The
references are as follows:
(i) Germany : CR 99/18, p 7.
(ii) Netherlands : CR 99/20, p 14.
(iii) Spain : CR 99/22, p 8.
(iv) United Kingdom : CR 99/23, p 13.
(v) United States : CR 99/24, p 10.
24. Two delegations placed emphasis upon
certain Security Council resolutions. The references are as follows:
(i) Belgium : CR 99/15, pp 7-9, 15-16.
(ii) United States : CR 99/24, p
(f) Other Public Statements by NATO Ministers
25. In August this year the Foreign Minister
of Italy made certain statements which constitute an admission
that the military operations against Yugoslavia did not satisfy
the criteria of legality. The report in the International Herald
Tribune reads as follows:
"RIMINI, ItalyUS intervention in
Kosovo compensated for Europe's lack of political and military
power, but NATO's action there raised questions about international
legality, the Italian foreign minister, Lamberto Dini, remarked
Speaking at an international relations forum
in this Adriatic city, Mr Dini stressed that while the war had
been fought for a just cause, the NATO action raised questions
about how to ensure international legality in future, questions
that Italy will put to the United Nations next month.
Mr Dini said that by intervening in the Balkans,
NATO had overridden the old diplomatic principle that sovereignty
came first, but a new code of practice and political discipline
had yet to be established.
`NATO's responsibility has been extended to wider
grounds,' he said `but how is this to be reconciled with the legitimacy
of the United Nations?'
`The Italian government will make proposals in
this regard to the United Nations General Assembly next month.'
(g) Press Statement by the Secretary-General
of NATO on Military Action
26. On 23 March 1999 Dr Javier Solana, the
Secretary-General of NATO, made the following press statement:
"Good evening, ladies and gentlemen,
I have just directed SACEUR, General Clark, to
initiate air operations in the Federal Republic of Yugoslavia.
I have taken this decision after extensive consultation in recent
days with the Allies, and after it became clear that the final
diplomatic effort of Ambassador Holbrooke in Belgrade has not
met with success. All efforts to achieve a negotiated, political
solution to the Kosovo crisis having failed, no alternative is
open but to take military action.
We are taking action following the Federal Republic
of Yugoslavia Government's refusal of the International Community's
Acceptance of the interim political settlement which
has been negotiated at Rambouillet;
Full observance of limits on the Serb Army and Special
Police Forces agreed on 25 October;
Ending of excessive and disproportionate use of force
As we warned on the 30 January, failure to meet
these demands would lead NATO to take whatever measures were necessary
to avert a humanitarian catastrophe.
NATO has fully supported all relevant UN Security
Council resolutions, the efforts of the OSCE, and those of the
Contact Group. We deeply regret that these efforts did not succeed,
due entirely to the intransigence of the FRY Government. This
military action is intended to support the political aims of the
international community. It will be directed towards disrupting
the violent attacks being committed by the Serb Army and Special
Police Forces and weakening their ability to cause further humanitarian
We wish thereby to support international efforts
to secure Yugoslav agreement to an interim political settlement.
As we have stated, a viable political settlement must be guaranteed
by an international military presence. It remains open to the
Yugoslav Government to show at any time that it is ready to meet
the demands of the international community. I hope it will have
the wisdom to do so.
At the same time, we are appealing to the Kosovar
Albanians to remain firmly committed to the road to peace which
they have chosen in Paris. We urge in particular Kosovar armed
elements to refrain from provocative military action.
Let me be clear: NATO is not waging war against
We have no quarrel with the people of Yugoslavia
who for too long have been isolated in Europe because of the policies
of their government. Our objective is to prevent more human suffering
and more repression and violence against the civil population
of Kosovo. We must also act to prevent instability spreading in
the region. NATO is united behind this course of action. We must
halt the violence and bring an end to the humanitarian catastrophe
now unfolding in Kosovo. We know the risks of action but we have
all agreed that inaction brings even greater dangers. We will
do what is necessary to bring stability to the region. We must
stop an authoritarian regime from repressing its people in Europe
at the end of the 20th Century. We have a moral duty to do so.
The responsibility is on our shoulders and we
will fulfil it."
27. This statement places at least as much
emphasis upon enforcing the acceptance of a political settlement
as it does upon averting a humanitarian catastrophe. Moreover,
the plans for phased air strikes had been laid the previous August.
It can be seen that the Secretary-General makes no reference to
legal considerations of any kind.
28. The Governments of the NATO States have
been generally consistent in their assertions that the action
taken against Yugoslavia was legal. However, the various statements
avoid giving any particulars relating to the legal framework.
A further source of difficulty is the emphasis in some of the
key Ministerial statements in the House of Commons and in the
NATO statement of 23 March on the purpose of forcing the Yugoslav
Government to accept the political "demands" of the
Contact Group. It is not easy to reconcile the enforcement of
the Rambouillet "Proposals" with the humanitarian motivation
stressed in other statements.
29. The phrase "humanitarian catastrophè
is anomalous: Why was the more normal phraseology"humanitarian
intervention"generally avoided? The probable antecedent
appears to be the reference to "extreme humanitarian need"
and "risk of a serious humanitarian emergency" in statements
by Mr Hurd, the Foreign Secretary, in 1992, concerning the air
exclusion zone established by the Allies in southern Iraq with
the stated purpose of protecting the Shiite population from aerial
attacks. The references can be found in the British Year Book
of International Law, Vol 63 (1992), pp 824-5.
30. A significant discussion took place
in the House of Commons Foreign Affairs Committee on 2 December
1992. In the course of this the following exchanges took place
with Mr Aust, Legal Counsellor, FCO:
"109. Would you go through the Chapter VII
route on each and every occasion where you wanted to put UN military
personnel on the ground?
(Mr Hogg) I am not sure I would be quite
so dogmatic about that because we did not use the Chapter VII
route, I think, in North Iraq.
(Mr Aust) Resolution 688, which applies
not only to northern Iraq but to the whole of Iraq, was not made
under Chapter VII. Resolution 688 recognised that there was a
severe human rights and humanitarian situation in Iraq and, in
particular, northern Iraq; but the intervention in northern Iraq
`Provide Comfort' was in fact, not specifically mandated by the
United Nations, but the states taking action in northern Iraq
did so in exercise of the customary international law principle
of humanitarian intervention.
Later, the following questions were asked and
142. Mr Aust referred earlier to a right under
international law of humanitarian intervention as distinct from
Chapter VII of the United Nations Charter. I wonder if you could
elaborate on that. Is there a generally agreed definition of this
right under international law?
(Mr Aust) There is no agreement in the
sense of rules which have been laid down by any international
body, but the practice of states does show over a long period
that it is generally accepted that in extreme circumstances a
state can intervene in another state for humanitarian reasons.
I think before doing so though a state would have to ask itself
several questions. First of all, whether there was a compelling
and an urgent situation of extreme humanitarian distress which
demanded immediate relief. It would have to ask itself whether
the other state was itself able or willing to meet that distress
and deal with it. Also whether there was any other practical alternative
to intervening in order to relieve the stress, and also whether
the action could be limited in time and scope. These are the sort
of questions which you would have to ask yourself before taking
what is a very serious step and needs, therefore, to be fully
143. Are there any other precedents, apart from
(Mr Aust) As I said, Resolution 688 did
not actually authorise it but it did recognize there was a very
serious situation in Iraq, particularly in North Iraq. Most of
the precedents before that relate perhaps more to intervention
in order to protect one's own nationals who are being mistreated
or neglected by the territorial state. But international law in
this field develops to meet new situations and that is what we
are seeing now in the case of Iraq."
(Parliamentary Papers, 1992-93, HC,
Paper 235iii, pp 85, 92).
31. It will be noted that the Government
is here espousing a "customary international law principle
of humanitarian intervention" (see the first reply by Mr
Aust). It is very difficult indeed to envisage what practice of
States Mr Aust had in mind or which authorities supported his
assessment. It may be recalled that Baroness Symons stated (on
16 November 1998) that "There is no general doctrine of humanitarian
necessity in international law" (above, paragraph 15).
32. There is evidence that the actual
views, as opposed to the publicly expressed views, of the NATO
legal advisers were unfavourable to the action proposed. On 18
October 1998 the Financial Times published an interview
with Richard Holbrooke, who was then engaged in threatening Yugoslavia
with bombing if the Contact Group's demands were not met. The
key passages in the interview are as follows:
"Brinkmanship is certainly a Holbrooke speciality.
`It was a rollercoaster ridea choice whether to bomb or
not bomb,' he said this week.
He believes his record in Bosnia helped. `After
the 1995 bombing, Mr Milosevic knows that when I talk of Nato
bombs, it is serious,' he said.
But to get to this point, it took Nato and the
US seven months after the violent eruption of the Kosovo crisis.
Mr Holbrooke spreads the blame for delay widelyon the
`lawyers in the Nato alliance' who said a specific Security Council
resolution was necessary to give intervention a legal basis;
on the Russians who made clear they `would delay, defer or veto'
such a resolution; and even on the Pentagon which was `reluctant'
Eventually, Nato got its act together, Javier
Solana, its secretary general, argued the alliance could act on
its own authority in humanitarian crises such as that afflicting
Kosovo's refugees. Britain played its part in prodding other Europeans
into taking a robust line, and Germany and Italy did not waver
despite changes in their governments.
In the end, Nato did just as Mr Holbrooke wanted,
putting its warplanes on stand-by for attack last Tuesday as he
as returning to Belgrade for a final showdown with Mr Milosevic."
(Financial Times, 8 Oct 1998, p13
III. LEGAL JUSTIFICATIONS
INTERNATIONAL LAW(a) Introductory
33. A preliminary issue concerns the relation
between the justifications as offered by the States conducting
military operations against Yugoslavia and the more general
question of the legality of the use of force in question. The
character of the justifications offered by Members of NATO has
been examined in the previous section, and certain eccentricities
emerge from that examination. In the first place, the key official
statements tend to avoid giving specific underpinnings to the
assertions of legality and, secondly, the novel phrase "humanitarian
catastrophè is employed rather than the more familiar term
34. In the present section the general question
will be addressed, that is to say, whether the use of force against
a state for humanitarian reasons is compatible with the principles
of international law.
35. For the purposes of this enquiry issues
of fact are left aside.
(b) The Existing Legal Regime of the United
36. The key provisions of the United Nations
Charter are as follows:
"The Organization and its Members, in pursuit
of the Purposes stated in Article 1, shall act in accordance with
the following Principles:
3. All members shall settle their international
disputes by peaceful means in such a manner that international
peace and security, and justice, are not endangered.
4. 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."
ACTION WITH RESPECT TO THREATS TO THE PEACE,
BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
The Security Council shall determine the existence
of any threat to the peace, breach of the peace, or act of aggression
and shall make recommendations, or decide what measures shall
be taken in accordance with Articles 41 and 42, to maintain or
restore international peace and security."
Nothing in the present Charter shall impair the
inherent right of individual or collective self-defence if an
armed attack occurs against a Member of the United Nations, until
the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in
the exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect
the authority and responsibility of the Security Council under
the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace
37. The scheme of the Charter consists of
giving a monopoly of the use of force to the Security Council,
but providing for specific exceptions in the case of the right
of individual or collective self-defence, in accordance with the
provisions of Article 51.
38. Article 2 of the Charter prescribes
the principles which bind both the Organization and its Members.
It is sometimes argued that the phrase "against the territorial
integrity or political independencè of any State in paragraph
4 of Article 2 can be given a restrictive meaning, which would
permit forcible intervention provided this did not involve an
annexation of territory.
39. The negotiating history is as follows.
In Chapter II of the Dumbarton Oaks Proposals the fourth principle
provided simply: "All members of the Organization shall refrain
in their international relations from the threat or use of force
in any manner inconsistent with the purposes of the Organization".
At San Francisco an Australian amendment introduced phraseology
substantially identical with the final text of paragraph 4. A
Brazilian amendment would have provided:
All members of the Organization shall
refrain in their international relations from any intervention
in the foreign or domestic affairs of any other member of the
Organization, and from resorting to threats or use of force, if
they are not in accord with the methods and decisions of the Organization.
In the prohibition against intervention there shall be understood
to be included any interference that threatens the national security
of another member of the Organization, directly or indirectly
threatens its territorial integrity, or involves the exercise
of any excessively foreign influences on its destinies.
Ecuador wished to apply a paragraph to Chapter
II in these terms:
The declaration that an attempt by
a State against the territorial integrity or inviolability, against
the sovereignty or political independence of another State, shall
be considered as an act of aggression against all the States which
constitute the International Community.
40. In the first Committee of Commission
I and several delegates referred to the necessity of incorporating
in Chapter II an express undertaking that the world Organization
should insure the territorial integrity and political independence
of member states. The Committee rejected the Brazilian amendment
but adopted the Australian amendment which had been accepted by
the drafting subcommittee. In the discussion the Norwegian Delegate
express an opinion that "it should be made clear in the Report
to the Commission that this paragraph 4 did not contemplate any
use of force, outside of action by the Organization, going beyond
individual or collective self-defense. He was himself in favour
of omitting the specific phrase relating to "territorial
integrity and political independencè since this was, on
the one hand, a permanent obligation under international law and,
on the other hand, could be said to be covered by the phrase "sovereign
equality" as suggested in the commentary by the Rapporteur."
There is no indication in the records that the phrase was intended
to have a restrictive effect.
41. In the Commission Belaunde of Peru pointed
out that paragraph one of Chapter II lacked any reference to the
idea of the personality of the State but that the elements of
personality had been incidentally inserted in paragraph 4 and
that this did not establish absolute respect for sovereignty and
territorial integrity. The Rapporteur of Committee I explained
that paragraphs 1 and 4 protected the personality of the state
as well as its territorial integrity and political independence.
The Commission adopted paragraph 4 in the form proposed by Committee
42. The conclusion warranted by the travaux
préparatoires is that the phrase under discussion was
not intended to be restrictive but, on the contrary, to give more
specific guarantees to small states and that it cannot be interpreted
as having a qualifying effect. If it is asserted that the phrase
may have a qualifying effect then writers making this assertion
face the difficulty that it involves an admission that there is
an ambiguity, and in such a case recourse may be had to travaux
préparatoires, which reveal a meaning contrary to that
43. In the Seventh Edition of Oppenheim's
International Law, Volume II, published in 1952, the distinguished
editor, Sir Hersch Lauterpacht, explains the position thus:
"Neither is the obligation not to resort
to force or threats of force limited by the words `against the
territorial integrity or political independence of any State.'
Territorial integrity, especially where coupled with `political
independence' is synonymous with territorial inviolability. Thus
a State would be acting in breach of its obligations under the
Charter if it were to invade or commit an act of force within
the territory of another State, in anticipation of an alleged
impending attack or in order to obtain redress, without the intention
of interfering permanently with the territorial integrity of that
State. The prohibition of paragraph 4 is absolute except with
regard to the use of force in fulfilment of the obligations to
give effect to the Charter or in pursuance of action in self-defence
consistently with the provision of Article 51 of the Charter discussed
in the following section." (p 154)
44. The position was confirmed, 25 years
later, in 1970, in the Declaration on Principles of International
Law Concerning Friendly Relations and Co-operation. The Declaration
provides evidence of the consensus among States on the meaning
of the principles of the Charter. In particular, the Declaration
"The principle concerning the duty not
to intervene in matters within the domestic jurisdiction of any
State, in accordance with the Charter
No State or group of States has the right to
intervene, directly or indirectly, for any reason whatsoever,
in the internal or external affairs of any other State. Consequently,
armed intervention and all other forms of interference or attempted
threats against the personality of the State or against its political,
economic and cultural elements, are in violation of international
No state may use or encourage the use of economic,
political or any other type of measures to coerce another State
in order to obtain from it the subordination of the exercise of
its sovereignty rights and to secure from it advantages of any
kind. Also, no State shall organize, assist, forment, finance,
incite or tolerate subversive, terrorist or armed activities directed
towards the violent overthrow of the regime of another State,
or interfere in civil strife in another State.
The use of force to deprive people of their national
identity constitutes a violation of their inalienable rights and
of the principle of non-intervention.
Every State has an inalienable right to choose
its political, economic, social and cultural systems, without
interference in any form by another State.
Nothing in the foregoing paragraphs shall be
construed as affecting the relevant provisions of the Charter
relating to the maintenance of international peace and security."
45. The general legal regime of the Charter
was affirmed by Professor Schwebel, a distinguished American expert,
currently President of the International Court, in his Hague Academy
lectures delivered in 1972 on "Aggression, Intervention and
Self-defence in Modern International Law": Recueil des
Cours, Vol II (1972), pp 413-97.
46. The basic principles of the legal regime
relating to the use of force were also reaffirmed in the Definition
of Aggression adopted by the General Assembly on 14 December 1974
(Res 3314 (XXIX)). Article 5 of the definition provides that:
"No consideration of whatever nature, whether
political, economic, military or otherwise, may serve as a justification
(c) The Legal Status of Humanitarian Intervention
47. There is no sufficient evidence of the
existence of a legal right of States, whether acting individually
or jointly, to use force for humanitarian purposes. The alleged
right is not compatible with the United Nations Charter (see above).
Thus it is not surprising that the sources of international law
covering a period of 40 years fail to provide any substantial
support for the legality of humanitarian intervention.
48. The relevant authorities will be reviewed
in chronological order. Whilst the survey of opinion is not exhaustive,
it is nonetheless fairly extensive and clearly represents the
49. Brownlie, International Law and the
Use of Force by States, Oxford, 1963, pp 338-42. The writer's
conclusion is as follows:
It must be admitted that humanitarian intervention
has not been expressly condemned by either the League Covenant,
the Kellogg-Briand Pact, or the United Nations Charter. Indeed,
such intervention would not constitute resort to force as an instrument
of national policy. It is necessary nevertheless to have regard
to the general effect and the underlying assumptions of the juridical
developments of the period since 1920. In particular it is extremely
doubtful if this form of intervention has survived the express
condemnations of intervention which have occurred in recent times
or the general prohibition of resort to force to be found in the
United Nations Charter.
50. Professor Schwebel, Hague Academy
In his substantial review of the subjects of
aggression and intervention Professor Schwebel does not make a
single reference to humanitarian intervention.
51. Brownlie, in Lillich (ed), Humanitarian
Intervention and the United Nations, Charlottesville, 1973,
The writer reaffirms the position first adopted
in the monograph published in 1963.
52. Brownlie, in John Norton Moore (ed),
Law and Civil War in the Modern World, Baltimore and London,
1974, pp 217-28.
The writer maintains his earlier analysis.
53. Verdross and Simma, Universelles
Volkerrecht : Theorie and Praxis, Berlin, 1976, pp
This is a standard work in German.
54. Jimenez de Arechaga, Recueil des
Cours, Hague Academy, Vol I (1978), pp 86-116.
This detailed survey of the legal regime relating
to the use of force by States clearly excludes the legality of
humanitarian intervention. Professor Jimenez de Arechaga is a
distinguished representative of Latin-American expertise and was
President of the International Court of Justice, 1976-9, having
served on the Court since 1970.
55. Akehurst, in Bull (ed), Intervention
in World Politics, Oxford, 1984, pp 95-118.
Professor Akehurst considers that the evidence
indicates clearly that humanitarian intervention is incompatible
with international law.
56. Professor Schachter, Michigan Law
Review, Vol 82 (1984), pp 1620-46 at p 1629.
In 1984 Professor Oscar Schachter expressed
the following opinion:
"Nonetheless, governments by and large (and
most jurists) would not assert a right to forcible intervention
to protect the nationals of another country from the atrocities
carried out in that country. An exception was the intervention
of Indian troops to protect Bengalis in East Pakistan during the
1971 civil war in Pakistan. India's ethnic links and the refugee
influx into its own territory, as well as hostility toward Pakistan,
were factors influencing its military intervention. It is interesting
that despite considerable sympathy for the oppressed Bengalis,
a large number of the UN General Assembly called on India to withdraw
The reluctance of governments to legitimize foreign
invasion in the interest of humanitarianism is understandable
in the light of past abuses by powerful states. States strong
enough to intervene and sufficiently interested in doing so tend
to have political motives. They have a strong temptation to impose
a political solution in their own national interest. Most governments
are acutely sensitive to this danger and show no disposition to
open article 2(4) up to a broad exception for humanitarian intervention
by means of armed force."
57. Podesta Costa and Jose Maria Ruda, Derecho
Internacional Publico, Vol 2, Buenos Aires, 1985, pp 475-80.
This leading Latin-American work makes no reference
to a right of humanitarian intervention.
58. British Foreign Office (Foreign Policy
Document No 148): British Year Book of Int.Law, Vol 57
The key passage reads thus:
"11.22. In fact, the best case that can
be made in support of humanitarian intervention is that it cannot
be said to be unambiguously illegal. To make that case, it is
necessary to demonstrate, in particular by reference to Article
1(3) of the UN Charter, which includes the promotion and encouragement
of respect for human rights as one of the Purposes of the United
Nations, that paragraphs 7 and 4 of Article 2 do not apply in
cases of flagrant violations of human rights. But the overwhelming
majority of contemporary legal opinion comes down against the
existence of a right of humanitarian intervention, for three main
reasons: first, the UN Charter and the corpus of modern international
law do not seem specifically to incorporate such a right; secondly,
state practice in the past two centuries, and especially since
1945, at best provides only a handful of genuine cases of humanitarian
intervention, and, on most assessments, none at all; and finally,
on prudential grounds, that the scope of abusing such a right
argues strongly against its creation. As Akehurst argues, `claims
by some states that they are entitled to use force to prevent
violations of human rights may make other states reluctant to
accept legal obligations concerning human rights'. In essence,
therefore, the case against making humanitarian intervention an
exception to the principle of non-intervention is that its doubtful
benefits would be heavily outweighed by its costs in terms of
respect for international law." (footnote omitted) (p
614 at p 619)
59. Brownlie, in Cassese (ed), The Current
Legal Regulation of the Use of Force, Dordrecht, 1986, pp
491-504, at p 500.
The writer evaluated the concept of humanitarian
intervention in these passages:
"Beyond the various controversies related
to the concept of self-defence lies the issue of humanitarian
intervention, which attracted some attention in the literature
in the early 1970s. There is little or no reason to believe that
humanitarian intervention is lawful within the régime of
the Charter. The concept is distinct from that of protection of
nationals, although in functional terms there is clearly an overlap.
There is virtually no modern State practice to support the thesis
that such a right exists. The Stanleyville operation of 1964 is
invoked as a precedent by advocates of the right, but in fact
the Congolese Government had consented to the operation and thus
it was based on the title of consent given by the territorial
sovereign. In the case of the intervention in the Dominican Republic
in 1965, also cited in this context, no reference was made to
humanitarian action as a legal justification.
The policy behind the concept of humanitarian
intervention calls for careful examination. The very idea of the
use of force within the territory of another State for humanitarian
purposes involves an obvious paradox. In most conditions what
will be involved is a major military operation in inhabited areas
with concomitant risks to the civilian population. No warning
will be given and there will be little chance of the evacuation
of civilians from the combat zone.
Unlike the case of self-defence, there is no
consensus on the conditions in which humanitarian intervention
would be justified. Moreover, the political reality is to be faced.
The use of force by way of humanitarian intervention would undoubtedly
follow the pattern of non-forcible sanctions by States on the
basis of a policy of protecting human rights standards. The indications
provided by the pattern of such non-forcible sanctions are not
encouraging. Double standards are rampant. On the index of human
rights policies followed by those powers able to impose `sanctions',
humanitarian intervention would be highly selective and nearly
always dictated by political and strategic interest. The major
powers will not intervene in their political allies, except when
a threatened or actual change of regime endangers their political
interests. Humanitarian intervention will be in practice be oldfashioned
hegemonial intervention." (at p 500; footnotes omitted)
The writer believes that this assessment remains
60. Pastor Ridruejo, Curso de Derecho
Internacional Publico, 2nd ed, Madrid, 1987 pp 577-84 (para
The writer was formerly legal adviser to the
Spanish Foreign Ministry. In his opinion humanitarian intervention
is incompatible with the existing legal regime (at pp 579-80).
61. Professor Yoram Dinstein, War, Aggression
and Self-Defence, Cambridge, 1988, p 89
Writing in 1988 Professor Dinstein concluded
"Nothing in the Charter substantiates the
right of one State to use force against another under the guise
of ensuring the implementation of human rights." (ibid, p
62. Professor Randelzhofer, in Simma (ed),
The Charter of the United Nations, A Commentary, Oxford,
1994, pp 123-4.
Professor Randelzhofer considers that there
is no room for the concept of humanitarian intervention either
in the Charter or in customary law. The footnotes contain extensive
references to the literature.
63. Shearer, Starke's International Law,
Eleventh edition, London, 1994, p 94-8.
In a full discussion of the permissible forms
of intervention, no reference is made to humanitarian intervention.
64. Diez de Velasco, Las Organizaciones
internacionales, 9th ed, Madrid, 1995, pp 152-55, 159-60.
This distinguished Spanish expert insists on
the significance of Article 2, paragraph 4, and regards humanitarian
intervention as illegal except when it is authorised by the Security
Council (at p 160).
65. Conforti, The Law and Practice of
the United Nations, The Hague, 1996, pp 176-7.
This distinguished Italian authority expresses
himself as follows:
"Article 51 restricts, without possibility
of misunderstanding, the use of force in self-defence to the very
specific case of the reaction to an armed attack, that is, of
an attack that has already been launched by one State (with regular
forces, or, under the above-cited 1974 Declaration on the definition
of aggression, with irregulars or mercenaries of equivalence strength)
against another State. Only in this case could an act of self-defence
not be considered as a threat to the peace or breach of the peace
for purposes of the application of enforcement measures.
The views that self-defence would justify preventive
attacks, or attacks aimed at saving human lives (attacks with
humanitarian purposes) or at counteracting States encouraging
terrorism (for example, the bombing of Libya by the United States
in 1986) or illegal drug traffic (the invasion of Panama by the
United States in 1989 and the resulting removal of General Noriega),
have no basis in the Charter. The prohibition of the use of force,
in fact, is expressed by Article 2, para 4, in a way such as not
to tolerate exceptions beyond the ones in Article 51. Moreover,
at San Francisco, the absolute character of the prohibition of
the use of force was clearly confirmed, apart from the exceptions
provided by other rules of the Charter (see UNCIO, Vol 6, p 334,
and 400) . . ."
66. Malanczuk, Akehurst's Modern Introduction
to International Law, Seventh revised ed, London, 1997, p
The learned editor expresses the following view:
"Be that as it may, it is another matter
to discuss the legality of the use of armed force or other compelling
coercion by third states as a response to severe human rights
violations in another state. This so-called right of humanitarian
intervention (which must be distinguished from the protection
of a state's own nationals who are in danger abroad) has been
abused in the past by strong states to pursue other political,
economic or military objectives. The issue is controversial, but
the better view is that a unilateral right to use force to intervene
for humanitarian reasons in another state is illegal in view of
the prohibition on the use of force in the UN Charter. In Nicaragua
v USA, the International Court of Justice said that `the use
of force could not be the appropriate method to . . . ensure .
. . respect' for human rights. Such intervention requires the
authorization by the UN Security Council as, for example, in the
case of Somalia in 1992." (p 221; footnotes omitted).
Professor Malanczuk is the author of a monograph
entitled Humanitarian Intervention and the Legitimacy of the
Use of Force, 1993.
67. Antonopoulos, The Unilateral Use
of Force by States in International Law, Athens, 1997, pp
Dr Antonopoulos presents a considerable quantity
of evidence for the view that humanitarian intervention is not
compatible with contemporary international law.
68. Brownlie, The Rule of Law in International
Affairs, The Hague, 1998, pp 206-9.
This rehearses the writer's views with particular
reference to the US intervention in Panama.
69. Judge Caminos, Hague Academy, Recueil
des cours, Vol 273 (1998), p 113 at p 235.
In the conclusion to his lectures on the role
of OAS in the promotion of democratic governance, the distinguished
Argentinian lawyer states that humanitarian intervention is prohibited
under existing international law.
70. Professor Bruno Simma, writing in the
European Journal of International Law, Vol 10 (1999), pp
1-22, regards the use of force for humanitarian purposes as incompatible
with the UN Charter in the absence of the authorisation of the
Security Council. Professor Simma reaches the following conclusions:
"This article has attempted to demonstrate
that, while the threat of armed force employed by NATO against
the FRY in the Kosovo crisis since the fall of 1998 is illegal
due to the lack of a Security Council authorization, the Alliance
made every effort to get as close to legality as possible by,
first, following the thrust of, and linking its efforts to, the
Council resolutions which did exist and second, characterizing
its action as an urgent measure to avert even greater humanitarian
catastrophes in Kosovo, taken in a state of humanitarian necessity.
The lesson which can be drawn from this is that
unfortunately there do occur `hard cases' in which terrible dilemmas
must be faced and imperative political and moral considerations
may appear to leave no choice but to act outside the law. The
more isolated these instances remain, the smaller will be their
potential to erode the precepts of international law, in our case
the UN Charter. As mentioned earlier, a potential boomerang effect
of such breaches can never be excluded, but this danger can at
least be reduced by indicating the concrete circumstances that
led to a decision ad hoc being destined to remain singular.
In this regard, NATO has done a rather convincing job.
In the present author's view, only a thin red
line separates NATO's action on Kosovo from international legality.
But should the Alliance now set out to include breaches of the
UN Charter as a regular part of its strategic programme for the
future, this would have an immeasurably more destructive impact
on the universal system of collective security embodied in the
Charter. To resort to illegality as an explicit ultima ratio
for reasons as convincing as those put forward in the Kosovo case
is one thing. To turn such an exception into a general policy
is quite another. If we agree that the NATO Treaty does have a
hard legal core which even the most dynamic and innovative (re-interpretation
cannot erode, it is NATO's subordination to the principles of
the United Nations Charter." (at p.22)
(d) Conclusion on the Sources of International
71. The legal position is based upon the
provisions of the United Nations Charter, together with relevant
subsequent practice. The careful wording of Article 2, paragraph
4, was precisely intended to allay the concerns of small States,
in light of the experience in the pre-war period both in Europe
and in Latin America. And in Europe especially, Hitler had adopted
the practice of using the treatment of minorities as an excuse
for military intervention and subversion.
72. The works quoted above represent the
considered opinion on the issue of 18 authorities. Only those
writers with recognised professional standing have been included.
They represent 12 nationalities. Three authors (Schwebel, Jimenez
de Arechaga and Ruda) have been President of the International
Court of Justice.
73. Only a minority among international
lawyers have adopted the view that humanitarian intervention is
lawful. The leading authorities may be cited as the more senior
members of this minority. Professor Thomas Franck has expressed
the following carefully conditional opinion on the subject:
"Again, pragmatic escape from the conundrum
posed in a `hard case' requires application of a rule of reasonableness.
The strict application of Article 51 is reasonable, in almost
all cases. An exception may be made, however, where effective
government has ceased to exist in the place where the danger to
lives has arisen. In that event, however, other normative practice
also becomes relevant. A modern customary law of humanitarian
intervention is beginning to take form which may condone action
to protect lives, providing it is short and results in fewer casualties
than would have resulted from non-intervention. This practice
does not distinguish between rescuing persons who are citizens
of the intervening State, other aliens, or citizens of the State
in which the intervention occurs. A State which purports to intervene
to prevent danger to its own citizens but ignores the needs of
others would be in violation of the new customary norm which it
seeks to invoke. Moreover, as with `anticipatory self-defence',
the State which acts in violation of the general prohibition on
intervention has the onus of demonstrating the existence of a
genuine, immediate and dire emergency which could not be redressed
by means less violative of the law. The emerging normative practice
also requires an exhaustion of the multilateral remedies established
by the Charter system." (Hague Academy, Recueil des
cours, Vol 240 (1993-III), pp 256-7).
74. Judge Rosalyn Higgins has produced an
extended examination of the issues, which deserves to be quoted
"Under contemporary international law, may
a State militarily intervene in another territory to rescue citizens
under threat? Under customary international law, such activity
was widely tolerated. But is it still allowed under the Charter?
Let us examine the legal and policy issues.
Even minor military incursions are unlawful uses
of force. It is quite clear, from the practice under the Charter
and otherwise, that the Charter law does not simply prohibit major
clashes between entire armies, while allowing smaller scale military
interventions. Attacks by single planes, for example, are as much
a violation of Article 2(4) as would be an attack by a squadron.
And it is not really feasible to engage in a rescue operation
of threatened nationals without engaging in some use of force,
which is prohibited by the terms of Article 2(4).
But does that dispose of the matter? There are
several reasons for thinking that it does not. First, what Article
2(4) prohibits is the use of force against the territorial integrity
or political independence of a State, or in any other manner inconsistent
with the purposes of the United Nations. It can easily be seen
that even a single plan attacking a country is a use of force
against its territorial integrity. But is the answer so clear
when the military intervention is not an attack on the State as
such, but an operation simply designed to be able to rescue and
remove one's threatened citizens? Is that really a use of violation
of sovereigntyin the same way as a civilian aircraft which
enters airspace without permission will surely be violating sovereigntybut
still not attacking the State or its territorial integrity? It
would seem that hostile intent, coupled with military activity
against the State (and beyond the minimum needed for the rescue),
is what would distinguish a violation of sovereignty from an attack
upon a State's territorial integrity.
If we can satisfy ourselves that humanitarian
intervention does not violate the prohibition against the use
of force against a State's territorial integrity, then we can
feel fairly confident that no other prohibition in Article 2(4)
is being violated. A military action to end a hijacking, for example,
would not be force against a State's political independence (unless
it was intended to overthrow the Government), and nor would it
seem to be contrary to the purposes of the Charter, being directed
towards the preservation of human life.
There is a different way of looking at the whole
questioninstead of looking to see whether a humanitarian
intervention violates Article 2(4), looking instead at the permitted
use of force under Article 51. That approach focuses rather on
self-defence, and brings us back to the question of harm to one's
nationals and self-defence. It is very similar to, but not quite
the same as, the question we asked ourselves before. Instead of
saying: `Is an attack on a foreign citizen an attack on the State,
which therefore entitles self-defence?' the question is the simpler
one of whether a State can claim that military action to rescue
one's citizens is an exercise of self-defence. Again, cautious
support has sometimes been offered for this view. Professor Sir
Humphrey Waldock (later Judge Waldock), giving this General Course
in 1952 said that a State could use force to rescue nationals
`as an aspect of self-defence', if the threat of injury was imminent,
if there was a failure or inability on the part of the territorial
sovereign to protect them, and if the measures of protection were
strictly confined to the object of protecting them. These criteria
would all seem to have been met in the Entebbe situation. There
an Israeli civilian airliner was hijacked to Entebbe; the then
President, Adi Amin, far from endeavouring to negotiate the safe
release of the passengers, provided further arms for the hijackers
and ominously separated the Jewish from the non-Jewish passengers.
The dangers seemed extremely imminent and the rescue operation
was directed only to procuring the safety of the passengers.
The following may be noted: a claim of humanitarian
intervention based on self-defence could only be advanced in respect
of nationals, because it is predicated on the argument that the
State is being harmed through injury to its nationals, and can
therefore respond in self-defence. But a claim of humanitarian
intervention based on the argument that no violation of Article
2(4) is entailed, would not logically be limited to the protection
of one's own nationals. Either Article 2(4) is or is not violated
by such activitybut nothing turns upon whether those being
rescued are nationals or not.
The general question has yet to be be judicially
determined, though it did arise in an incidental way in the Tehran
Hostages case before the International Court of Justice, 1980.
The Court was seised of an application by the United States to
deal with the merits of that issuenamely, whether the State
of Iran was in violation of the Vienna Convention on Diplomatic
Relations 1961 or international law more generally, by any attributability
to it of the acts of those who had taken United States diplomats
in Tehran hostage. The matter had already been, for several months,
the subject of attempts at resolution elsewherethere had
been Security Council resolutions, a United Nations fact-finding
commission set up, and an Order of the Court calling for the release
of the hostages. No progress had been made. While the merits of
the case were before the Court, the United States engaged upon
an ill-fated military attempt at rescuing the hostages. If one
takes the Waldock tests, one question immediately presented itself;
whether the hostages were in immediate danger of injury or harm
(over and above the harm already occasioned by their very detention).
The Court carefully did not pronounce upon the lawfulness or not
of the United States action, but in some carefully chosen phrases
indicated that it thought it inappropriate for the action to have
been mounted while the matter was before the Court.
Many writers do argue against the lawfulness
of humanitarian intervention today. They make much of the fact
that in the past the right has been abused. It undoubtedly has.
But then so have there been countless abusive claims of the right
to self-defence. That does not lead us to say that there should
be no right of self-defence today. We must face reality that we
live in a decentralized international legal order, where claims
may be made either in good faith or abusively. We delude ourselves
if we think that the role of norms is to remove the possibility
of abusive claims ever being made. The role of norms is the achievement
of values for the common good. Whether a claim invoking any given
norm is made in good faith or abusively will always require contextual
analysis by appropriate decision makersby the Security
Council, by the International Court, by various international
bodies. We can think of recent invocations of the right of humanitarian
interventionranging from the Belgian and French interventions
in Stanleyville in 1963, to the United States intervention in
Grenada in 1987, to the Israeli intervention in Entebbe in 1976.
We are all capable of deciding, on the facts at our disposal,
in which of these foreigners were really at imminent risk, which
interventions were bona fide for reasons of humanitarian necessity,
and which were not. Nor am I persuaded by another, related argument
sometimes advancesthat humanitarian intervention should
be regarded as impermissible, because, in the international legal
system, there is no compulsory reference to impartial decision-makers,
and States finish up judges in their own cause. There are a variety
of important decision-makers, other than courts, who can pronounce
on the validity of claims advanced; and claims which may in very
restricted exceptional circumstances be regarded as lawful should
not a priori be disallowed because on occasion they may
be unjustly invoked".Hague Academy, Recueil des
cours, Vol 230 (1991-V), pp 313-16). (Footnotes omitted).
75. These two prognoses invite a number
of comments. First of all, they do not reflect the clear text
of the UN Charter and, more significantly, do not reflect the
views of the majority of States. Secondly, they are contradicted
by the majority of authoritative experts. Thirdly, the assessment
by Franck (in 1993) is tentative: "A modern customary law
of humanitarian intervention is beginning to take form . . ."
and he refers to "an emerging normative practicè.
76. Most importantly, the paradigm cases
envisaged by both Franck and Higgins are totally unrelated to
the circumstances of the military operations against Yugoslavia,
which involved intense bombing of populated areas throughout Yugoslavia
for 78 days.
77. It should be pointed out that there
are other proponents of humanitarian intervention, including the
Reuter. Droit international public, 6th
ed, Paris 1983, p 517.
Lillich, in John Norton Moore (ed,), Law and
Civil War in the Modern World, 1974, pp. 229-51.
Reisman and McDougal, in Lillich (ed), Humanitarian
Interventions and the United Nations, 1973, pp 167-95.
Reisman, American Journal of IL, Vol 84
(1990), pp 866-76.
Carillo Salcedo, Curso de derecho internacional
publico, Madrid, 1991, p 324.
78. The proponents of humanitarian intervention
are distinctly in a minority. More significant, however, is the
position in customary international law, which depends upon the
practice of States based upon opinio juris, that is to
say, a belief that the action is in accordance with international
law. There can be no doubt that the United Nations Charter can
be modified by the congruent practice of the Member States crystallising
as a new principle of customary law. But there is a burden of
proof upon proponents of a change in the customary law. The central
point is the absence of evidence of a change of view by a majority
of States. The assertions of legality made by the British and
other Governments in relation to the military operations against
Yugoslavia were unaccompanied by any particulars of supporting
79. The experts who support the legality
of humanitarian intervention do not provide even incipiently convincing
evidence of State practice in support. Professor Franck refers
to the customary law "beginning to take form" (in 1993).
Judge Higgins refers to three episodes. The first is the Belgian
and French interventions in Stanleyville in 1963. The difficulty
with this episode is that the Government in Zaire gave its consent.
The second episode invoked is the United States intervention in
Grenada in 1983. This is an odd precedent. Various States, including
Canada, had nationals on the island but they were not consulted.
The reasons publicly advanced by the United Kingdom Government
in relation to Grenada did not include a reference to humanitarian
intervention: British Year Book of IL, Vol 54 (1983), pp
376-7, 405-6, 528-9. The Entebbe rescue operation of 1976 is rarely
invoked as a precedent. Professor Dinstein places it within the
category of self-defence (op cit, pp 213-15).The attitude of States
generally, as revealed in the Security Council debate at the time,
either took the form of criticism on legal grounds or, in some
cases, a waiver of illegality.
80. In conclusion, there is very little
evidence to support assertions that a new principle of customary
law legitimating humanitarian intervention has crystallised.
IV. THE ROLE
81. It is generally accepted among international
lawyers that action can be taken against a State for humanitarian
purposes with the authorisation of the Security Council by virtue
of Chapter VII of the Charter. This is the recognised means of
conferring legitimacy and community approval upon action for humanitarian
82. In the present context it is a matter
of public knowledge that the principal actors within NATO avoided
seeking the authority of the Council precisely because it was
expected that two Permanent Members would produce negative votes.
83. It is clear that the action which was
launched on 24 March 1999 was not authorised expressly by any
SC Resolution. Nevertheless, some delegations (Belgium and the
United States) invoked certain SC Resolutions on the basis that
they provided some implicit or indirect authority for the action.
84. Those assertions are not very plausible.
Four Resolutions are involved. Resolution 1160 (1998),
emphasises the need for a "peaceful resolution" of the
crisis in Kosovo (paragraphs 7 and 19). There is no language justifying
the use of force. Resolution 1199 (1998) similarly contains
no language referring to the use of force. Resolution 1203
(1998) repeats the substance of Resolutions 1160 and 1199.
Resolution 1207 (1998) also contains no language justifying
the use of force.
85. There was a further and highly significant
involvement of the Security Council in the Kosovo crisis. After
a period of intensive diplomacy and the cessation of the bombing,
the resulting political settlement was embodied in Security Council
Resolution 1244/1999 on 10 June 1999. The substance of the resolution
is not generally in issue for present purposes. The question the
lawyer would raise is whether the resolution has given legitimacy
to the use of force against Yugoslavia.
86. The text of the resolution does not
provide any indications that the air operations against Yugoslavia
were lawful and it may be assumed that Russian support for the
resolution would not have been forthcoming if there had been such
indications. The Security Council was acting by virtue of Chapter
VII of the Charter. The political bases of the resolution are
provided by the two sets of principles accepted by the Yugoslav
Government: see Annexes 1 and 2 of the Resolution. The text of
the Resolution makes no reference either to the recent armed conflict
or to the termination of the air operations in Yugoslavia. There
are, however, certain references (in the Annexes) to the "withdrawal
from Kosovo of military, police and paramilitary forces".
87. The action begun on 24 March 1999 was
not authorised by any Security Council resolution: see above,
paragraph 82. The post-war resolution adopted on 10 June did not
provide any retroactive legitimacy. Consequently, the bombing
of Yugoslavia did not fall within any of the generally recognised
exceptions to the principle prohibiting the threat or use of force
stipulated in Article 2, paragraph 4, of the United Nations Charter.
V. THE LEGAL
88. It is not the writers brief to examine
the political history of the crisis, but an efficient examination
of the legal issues must involve some reference to the documents
often described as the Rambouillet Accords. The "Rambouillet
Accords" form part of the picture because, especially in
the statements of British Ministers, a major justification for
the threat of force (in the first instance) and the aerial bombardment
(subsequently, to fulfil the threats of force) was to induce Yugoslavia
to accept the "demands" of the Contact Group: see above,
89. The reference by the Government to the
"Rambouillet Accords" is in a significant sense anomalous.
Two facts stand out from what was a complex picture. First the
NATO bombing apparatus was placed in a state of readiness, announced
as such, on 12 October 1998. Thus there was a direct link between
the threat of air strikes and the demands made upon Yugoslavia.
Mr Cook's statements on 19 October made this clear. In his words:
"By late July, the Yugoslav army and the
Ministry of Interior police had commenced a widespread campaign
of repression throughout Kosovo. During that campaign, they made
no distinction between armed guerillas and unarmed civilians.
Whole villages were shelled, crops were burnt in the field and
farm animals were incinerated in their barns. A quarter of a million
peoplea tenth of the entire population-have become refugees.
In September, Britain and France presented to
the Security Council resolution 1199, which demanded that President
Milosevic cease fire; withdraw his security forces; allow refugees
to return to their villages, and make a rapid start in real negotiations
on self-government for Kosovo.
Two weeks ago, Britain chaired a meeting of the
contact group at Heathrow. That meeting sent Dick Holbrooke back
to Belgrade with a mandate from all members of the contact group,
including Russia, to secure an agreement that complied with the
demands of the Security Council resolution.
Last Monday, NATO unanimously took the decision
to authorise air strikes on Serbian military targets. The next
day, President Milosevic gave his agreement to Dick Holbrooke
on a settlement that commits Yugoslavia to full compliance with
There can be no Member of the House who imagines
that President Milosevic would have made such a commitment if
the diplomatic efforts backed by the contact group had not also
been backed by the credible threat of military action by NATO.
His draconian steps to close the independent press to prevent
it from reporting the agreements in full underlines his dislike
of being forced into them".(Commons 19 October, col
90. It was in these conditions that President
Milosevic is alleged to have made a "commitment" on
13 October 1998. And so the second fact which stands out is that
any agreement within that factual frame would have been made under
91. Article 52 of the Vienna Convention
of the Law of Treaties provides as follows:
"Coercion of a State by the threat or use
A treaty is void if its conclusion has been procured
by the threat of use of force in violation of the principles of
international law embodied in the Charter of the United Nations".
92. What eventually emerged, after further
"negotiations" and continuing threats of force, was
the draft Interim Agreement for Peace and Self-government in Kosovo,
which was drawn up without the participation of Yugoslavia. The
draft surfaced in February when Yugoslavia was summoned to talks.
It was made clear during the discussions that the Yugoslav side
would not be permitted to make amendments to the Draft Agreement.
In the event the Federal Republic of Yugoslavia refused to sign.
Thus no Agreement was concluded and the "Rambouillet Accord"
constituted a set of proposals and nothing more.
93. It must be pointed out that, even if
Yugoslavia had at this juncture accepted the Interim Agreement,
such acceptance would have been voidable as a result of the element
94. It is worth noting one aspect of the
Rambouillet Draft which in itself would have deterred acceptance
by a responsible Government. Paragraph 8 of Appendix B of the
Rambouillet Draft of 23 February 1999 reads as follows:
"NATO personnel shall enjoy, together with
their vehicles, vessels, aircraft and equipment, free and unrestricted
passage and unimpeded access throughout the Federal Republic of
Yugoslavia (not only Kosovo) including associated airspace and
territorial waters. This shall include, but not be limited to,
the right of bivouac, maneuver, billet and utilisation of any
areas or facilities as required for support, training, and operations".
95. In conclusion, five related points may
be made about the "Rambouillet Accords".
First: the process of "negotiation"
was not in conformity with the normal standards of genuine negotiations
leading to real agreement.
Second: in any event Yugoslavia did not accept
the Draft proposed, apparently, on a "take it or leave it"
Third: the "negotiations" took place
a short time after the NATO Council decision on 30 January 1999
to authorise air strikes against targets in Yugoslavia: House
of Commons, 4 February 1999, col 742 (Mr Robertson).
Fourth: the enforcement of the Rambouillet proposals
by means of threats of aerial bombardment is clearly illegal under
contemporary international law.
Fifth: the British Government has pleaded the
enforced acceptance of the Rambouillet proposal in parallel with
the invocation of humanitarian action but it is difficult to reconcile
the two purposes.
VI. THE CHRONOLOGY
96. The onset of the air strikes on the
territory of Yugoslavia on 24 March 1999 is to be understood in
the framework of the sequence of NATO threats of bombing which
began in October 1998 with the visit of Mr Holbrooke to Belgrade.
97. The sequence of connected events was
28 August 1998. Internal NATO decision to use
air strikes if necessary.
23 September 1998. SC resolution imposes a ceasefire
12 October 1998. NATO authorises air strikes
on military targets in Yugoslavia.
19 October 1998. The order authorising air strikes
30 January 1999. The NATO Council agreed that
the Secretary-General could authorise air strikes.
February 1999. Talks take place at Rambouillet.
98. The threats of bombing were no more
legal than the eventual air strikes. It is clear that the threats
made in October, and which were then extended at various junctures,
had the major purpose of imposing a political settlement on the
Yugoslav Government. Moreover, the nature of the targeting indicated
other general political aims. The point which emerges is that,
when the bombing started on 24 March, the long announced political
purposes were operating in parallel with the humanitarian motives
(which, for the sake of the argument, are assumed to be genuine).
VII. DID THE
NATO ACTION CONSTITUTE
FACTS?(a) The General Character
of the Military Operations
99. It has been pointed out already that
the legal analysis cannot be divorced from the facts. Thus, in
order to round out the analysis, the question to be approached
is: on the assumption that humanitarian intervention is lawful,
did the military operations commenced on 24 March this year constitute
100. In the submission of the writer there
is a series of major considerations which, taken together, disqualify
the action as having a humanitarian character. These considerations
are as follows:
101. The bombing campaign which began on
24 March occurred against the background of a five month period
of negotiations under persistent (and illegal) threats of the
massive use of force against Yugoslavia, the content of which
related to the constitutional status of a part of Yugoslavia.
When the negotiations failed, the bombing campaign was primarily
concerned with a coercive and punitive purpose related to the
original political demands, and the repeated threats of violence.
102. The modalities selected disqualify
the mission as a humanitarian one. Bombing the populated areas
of Yugoslavia, using high performance ordnance and anti-personnel
weapons, has nothing in common with humanitarian intervention.
Moreover, bombing from a height of 15,000 feet endangers civilians
and this operational mode is intended to prevent risks to combat
personnel. The population of Yugoslavia was subjected to inhumane
treatment and punishment for political reasons. Some groups of
civilians, including television personnel were deliberately targeted.
The selection of a bombing campaign is disproportionate to the
declared aims of the action. The pattern of targets and the geographical
extent of the bombing indicates broad political purposes unrelated
to humanitarian issues. During the conflict NATO statements indicated
the general purpose of forcing the population to overthrow the
Government. A blitz with high explosives, which was intended in
part to put pressure on the population and which lasted 78 days,
has nothing in common with humanitarian intervention.
(b) The Model Proposed by Exponents of Humanitarian
103. And there is a further aspect. If the
views of the exponents of humanitarian intervention are studied,
it becomes clear that they did not envisage anything like the
NATO bombing of the populated areas of Yugoslavia, the destruction
of the civilian infrastructure and the use of prohibited weapons.
Thus, Professor Verwey, writing in 1986, proposed the following
model. In his words:
"Thus, it could be established, by means
of a GA Resolution, that every State or group of States claiming
to get or be involved in an act of humanitarian intervention shall
be prepared and able to submit convincing evidence to the UN,
if possible prior but if necessary subsequent to the intervention,
that the following conditions of legality are met:
(1) it has a `relative disinterest' in the
situation, in the sense that its overriding motive is the protection
of human rights, without important motives of a political or other
selfish nature being involved;
(2) there is an emergency situation, in which
fundamental human rights of a non-political nature, in particular
the right to life, are (about to be) violated on a massive scale;
(3) only a last-resort armed intervention
can save the (potential) victims, after all peaceful efforts have
(4) action by the UN has proved to be ineffectual,
oras the case may becannot be awaited;
(5) the impact upon the authority structure
of the target State is confined to a minimum, ie only to the extent
necessary for the purposes of the rescue operation;
(6) the magnitude of military involvement
is proportionate to the requirements of the rescue operation.
And even so, in a nuclear era and in a world
in which virtually all conflicts are politicised, its is necessary
to demand in addition that resort to humanitarian intervention
should be taken only with the greatest reserve, in particular
by the Great Powers or in situations which Great Power rivalry
may be expected. Therefore, and most important, the intervenor
should also be required to make it plausible that
(7) the intervention does not constitute
a threat to the peace of such a nature that it might trigger more
human loss and tragedy than it intends to prevent or eliminatè.(Verwey,
in Casses (ed), The Current Legal Regulations of the Use of
Force, Dordrecht, 1986, pp 57-75 at pp 74-5).
VIII. THE RELATED
AGAINST NATO STATES).
104. The International Court of Justice
was established by the United Nations Charter in 1945 and sits
in permanent session at The Hague. The function of the Court,
composed of fifteen judges drawn from the principal legal systems
of the world, is to adjudicate in disputes between states in accordance
with international law, broadly international customary law, the
United Nations Charter and other international treaties. Only
states can be parties to disputes before the Court, (whereas other
tribunals such as the European Court of Human Rights allow complaints
by individuals against their own or other governments) and states
must consent to the jurisdiction of the Court. Some 62 states,
including a substantial number of European and Commonwealth states,
have made formal declarations accepting the compulsory jurisdiction
of the court. Since 1946 the International Court has heard over
seventy cases, and compliance with its judgments, with very few
exceptions has been complete.
105. The United Kingdom, as a permanent
member of the Security Council has the automatic right to nominate
a British national for election to the court. The present UK judge
is HE Judge Rosalyn Higgins.
106. Of the permanent members, the UK has
an unparalleled record of support for the court; three out of
five UK judges have served as President, UK nationals as court
officials and members of the English bar regularly appear as advocates
on behalf of their own, and other, states. The UK has made a declaration
(subject to certain conditions) accepting the compulsory jurisdiction
of the court, and this remains in force. The cases in which the
UK has been a party include the Corfu Channel case (1947-9)
(UK claim for compensation against Albania), Fisheries
(1948-51), (UK v Norway), Fisheries Jurisdiction (1972-74)
(UK v Iceland) and Interpretation of the 1971 Montreal Convention
(Libya v UK) (1992- ).
107. On 29 April 1999 the Federal Republic
of Yugoslavia began proceedings in the court against the UK and
nine other NATO states, requesting interim measures of protection
(a halt to the bombing) a declaration on the illegality of the
use of force, and compensation. All the Respondent NATO states
were represented in the oral proceedings (relating exclusively
to interim measures) in The Hague, the UK delegation being led
by the then Attorney-General. The Court, for technical reasons
deriving from the Yugoslav declaration of acceptance of the Court's
jurisdiction declined the relief sought, but remains seised of
the substantive issues. At this date, Yugoslavia has until January
2000 to present written pleadings, followed by the Respondent
IX. THE LEGALITY
NATO ACTION IN
108. It is difficult to reconcile the purposes
and actions of the NATO Members in respect of Yugoslavia with
the following provisions of the North Atlantic Treaty:
The Parties undertake, as set forth in the Charter
of the United Nations, to settle any international disputes in
which they may be involved by peaceful means in such a manner
that international peace and security, and justice, are not endangered,
and to refrain in their international relations from the threat
or use of force in any manner inconsistent with the purposes of
the United Nations".
This Treaty does not affect, and shall not be
interpreted as affecting, in any way the rights and obligations
under the Charter of the Parties which are members of the United
Nations, or the primary responsibility of the Security Council
for the maintenance of international peace and security".
109. It is true that, if the Organisation
were a "regional arrangement" for the purposes of the
UN Charter, it would have broader powers, not confined to action
in collective self-defence in response to an armed attack against
one or more Members (Article 5). However, the Organisation and
its Members have always insisted that it does not qualify as a
regional arrangement, no doubt because the Security Council has
a degree of control over any enforcement action taken under regional
arrangements (Article 53 of the UN Charter).
110. These observations are to an extent
academic. The legality of the operations as against Yugoslavia
is not conditional upon the provisions of the North Atlantic Treaty.
The NATO Council and Military Command Structure played the role
of agents for the group of States which planned the operations.
NATO's relevance was essentially political and operational.
X. THE LEGAL
NATO MILITARY COMMAND
111. The military operations against Yugoslavia
were to be carried out by means of the NATO Military Command Structure.
This was announced in the Commons on 24 February 1999 by Mr Cook.
The legal complexities will not be elaborated upon at length.
However, one point stands out. The operation was a joint enterprise,
politically and legally. As a matter of legal principle, it would
follow that each Member State would be responsible, jointly and
severally, for the actions of the other States.
112. In this framework, participation in
the joint planning and authorisation by way of the NATO Council
would generate responsibility of all participating States, irrespective
of the number of missions actually flown. Such joint responsibility
would be relevant in the context of the duty to compensate Yugoslavia
for the losses of life, injuries, and damage inflicted. It would
also be relevant to the responsibility of individuals for the
commission of war crimes and crimes against humanity.
XI. THE ARMED
113. In the case of an armed conflict between
States, the position of neutral third States inevitably has to
be considered. In the case of an enforcement action authorised
by the Security Council by virtue of Chapter VII of the Charter,
the Council may call on Members to apply various measures not
involving the use of armed force to give effect to its decisions
(Article 41 of the UN Charter).
114. The air operations against Yugoslavia
were not authorised by the Security Council and third States had
no duties to assist. Indeed, for a number of reasons, third States
had substantial grounds for regarding the action as an unjustified
attack on a sovereign State. Of equal, if not greater significance,
is the fact that it was not accepted by the NATO States that a
state of war existed. The legal status of the action remains obscure.
115. In these circumstances, it was impossible
to expect Russia or other third States to respect a naval blockade
of the Yugoslav port of Bar. In the event the NATO Governments
appear to have applied a regime of visit and search, but without
the use of force to stop merchant vessels: International Herald
Tribune, 27 April 1999; The Times (London), 27 April
XII. THE HUMANITARIAN
116. It is not possible to deal with the
issues of what used to be called "the law of war". The
writer is not in possession of the data necessary for an adequate
treatment of the law and facts. The International Committee of
the Red Cross has produced a number of statements (not seen by
the writer) relating to targeting policies adopted during the
aerial bombardment of Yugoslav cities. Controversial aspects of
targeting policies (to say the least) included the use of cluster
bombs in non-combat situations, a clear attempt to murder the
Head of State, and the deliberate targeting of television studios.
117. The writer will offer some provisional
assessments relating to the outstanding features of the hostilities.
The application of the humanitarian law of armed conflict to the
operations against Yugoslavia is very difficult because the situation
was anomalous in several major respects. First, there was no armed
conflict between two sides; rather there was a one-sided aerial
bombardment with bombs and missiles. Secondly, the measures had
the specialised purpose of carrying out threats of air strikes,
threats which had started six months before, and which being unsuccessful,
were eventually implemented. Few wars are fought on such a basis.
Thirdly, given the eccentric purposes of the air strikes, it is
very difficult to apply the normal concepts of military objectives
and the tolerable risk of collateral damage to civilians and civilian
118. The difficulties can be indicated by
listing the purposes of the attack on Yugoslavia which emerged
from statements of Ministers, NATO briefings, and the statements
to the press of General Wesley Clark. The purposes referred to
on various occasions both before and during the bombardment of
the whole of Yugoslavia were the following:
(a) By implication from the threats issued
prior to the action, the purpose of the action was to punish the
Yugoslav Government for refusing to be intimidated.
(b) A second purpose, obviously closely related
to the first, was to coerce Yugoslavia into acceptance of the
"demands" of the Contact Group, which reflected the
(c) A third purpose, formulated in the course
of the campaign, was, by inflicting trauma and the expected deprivation
resulting from damage to the infra-structure caused by the heavy
air raids, to induce the population to change the elected Government
(d) With other forms of political warfare,
to induce the secession of Montenegro.
(e) To inflict extensive damage upon the
Yugoslav economy as a whole for reasons connected with a long-term
geopolitical agenda for the Balkans.
(f) To seek to murder the Head of State.
119. The official NATO position was, of
course, that the purpose of the bombing was to prevent a humanitarian
catastrophe. It is impossible to reconcile this assertion with
the other war aims as defined in official statements. The threats
of air strikes were planned alongside the long-term NATO programme
to change the status of Kosovo and Metohija without the consent
of the Government of Yugoslavia.
120. Against this background, how can one
apply the concept of military objective. There was no conflict
on the ground. Is it lawful to destroy even military objectives
simply with the purpose of coercing the State into accepting a
set of proposals? The bombing of oil refineries could not involve
military objectives because nowhere in Yugoslavia were NATO troops
on the ground and in a position to benefit from the destruction
of fuel sources. NATO official statements were very frank in indicating
that the purpose of the targeting policy was to cause hardship
to the civilian population.
121. The crisis in Kosovo originated in
the deliberate formenting of civil strife in Kosovo and the subsequent
intervention by NATO States in the civil war. In such conditions
those States responsible for the civil strife and the intervention
are estopped from pleading humanitarian purposes.
122. In this context it is relevant to recall
that the International Law Commission draft of 1980 on State Responsibility
provides in Article 33 (in material part) that:
(2) In any case, a state of necessity may
not be invoked by a State as ground for precluding wrongfulness:
(c) if the State in question has contributed
to the occurrence of the state of necessity.
(Yearbook, ILC, 1980, Vol 11 (part Two), pp 34-52).
123. The threats of massive use of force
commenced in October 1998 and were intended to produce not a genuine
peaceful settlement but a dictated result. The massive air campaign
was originally planned in August 1998 for the purposes of general
coercion and in order to force Yugoslavia to accept NATO demands.
NATO first threatened air strikes in October of last year. This
is a matter of public knowledge. It is only subsequently that
the use of bombs and missiles over the whole of Yugoslavia was
repackaged as a humanitarian mission.
124. These elements in the situation disclose
a modus operandi which stands in appalling contrast to
normal standards of diplomacy.
125. The threat of massive force was the
prominent weapon. "Diplomacy" was seen as the successful
result of bullying in its most extreme form. It is hardly surprising
that, in its Orders issued in response to the Yugoslav Request
for Interim Measures of Protection, the International Court addressed
several injunctions to all the Parties. In the words of the Court:
"16. Whereas the Court is deeply concerned
with the human tragedy, the loss of life, and the enormous suffering
in Kosovo which form the background of the present dispute, and
with the continuing loss of life and human suffering in all parts
17. Whereas the Court is profoundly concerned
with the use of force in Yugoslavia; whereas under the present
circumstances such use raises very serious issues of international
18. Whereas the Court is mindful of the purposes
and principles of the United Nations Charter and of its own responsibilities
in the maintenance of peace and security under the Charter and
the Statue of the Court;
19. Whereas the Court deems it necessary
to emphasize that all parties appearing before it must act in
conformity with their obligations under the United Nations Charter
and other rules of international law, including humanitarian law;
. . .
(Order dated 2 June 1999 [Yugoslavia v Belgium],
126. NATO policies revealed other serious
elements of confusion. Whilst reiterating the principle of maintaining
the territorial integrity of Yugoslavia, the actual conduct of
the principal NATO States has been to encourage separatism by
every means available, including direct military assistance to
127. The policy of encouraging secession
in the case of Kosovo and Metojiha would appear to be pursued
independently of any legal or political principle. Separatist
movements in Russia, Turkey, Indonesia, and other States do not
receive the assistance of the US air force.
128. There is no point in presenting a summary
of what has gone before. The intention is to highlight points
of particular significance.
129. The conclusions are as follows.
(a) The primary justification for the bombing
of Yugoslavia was always the imposition of the NATO plans for
the future of Kosovo. It was in this context that the bombing
campaign was planned in August 1998.
(b) The threats of massive air strikes were
made in the same context and were first made public in October
1998. Neither the purpose of the planned air strikes nor their
implementation related to events on the ground in Kosovo in March
(c) The cause of the air strikes was quite
simple: given that Yugoslavia had not given in to threats, the
threats had to be carried out.
(d) The legal basis of the action, as presented
by the United Kingdom and other NATO States, was at no stage adequately
(e) Humanitarian intervention, the justification
belatedly advanced by the NATO States, has no place either in
the United Nations Charter or in customary international law.
(f) Whilst in theory customary law could
develop in such a way as to legitimise action by way of humanitarian
intervention, the proponents of a change in the customary law
have a burden of proof of a new consensus among States which could
not be discharged on the evidence available.
(g) If the view had been held that the Permanent
Members of the Security Council would recognise the need for humanitarian
action, then no doubt a resolution would have been sought.
(h) The argument that a resolution would
have been "blocked" by Russia and/or China is unattractive,
in part because the matter could then have been taken to the UN
General Assembly (in a Special Emergency Session) on the basis
of the Uniting for Peace Resolution of 1950. Presumably the NATO
States had no hope of obtaining a two-thirds majority in the General
(i) The intentions of the United States and
the United Kingdom included the removal of the Government of Yugoslavia.
It is impossible to reconcile such purposes with humanitarian
(j) The claim to be acting on humanitarian
grounds appears difficult to reconcile with the disproportionate
amount of violence involved in the use of heavy ordnance and missiles.
The weapons had extensive blast effects and the missiles had an
incendiary element. A high proportion of targets were in towns
and cities. Many of the victims were women and children. After
seven weeks of the bombing at least 1,200 civilians had been killed
and 4,500 injured.
(k) In spite of the references to the need
for a peaceful solution to be found in Security Council Resolutions,
the public statements of Mrs Albright, Mr Cook, Mr Holbrooke,
and others, and the reiterated threats of massive air strikes,
make it very clear that no ordinary diplomacy was envisaged.
XV. A SYNOPSIS
130. The writer has contacts with a great
number of diplomats and lawyers of different nationalities. The
reaction to the NATO bombing campaign outside Europe and North
America has been generally hostile. Most States have problems
of separatism and could, on a selective basis, be the objects
of Western "crisis management". The selection of crises
for the "Kosovo" treatment will depend upon the geopolitical
and collateral agenda. It is on this basis, and not a humanitarian
agenda, that Yugoslavia is marked out for fragmentation on a racial
basis, whilst Russia and Indonesia are not.
131. The opinions reported in the previous
paragraph are not merely "political" reactions but reflect
the historical experience of the regions concerned. The drafting
of Article 2, paragraph 4, of the UN Charter precisely reflects
the concerns of small States both in Europe and in Latin America
in the period before the Second World War. Forcible intervention
to serve humanitarian objectives is a claim which is only open
to powerful States to make against the less powerful. The fate
of Yugoslavia will have caused considerable damage to the cause
of non-proliferation of weapons of mass destruction.
1. North Atlantic Treaty, 1949
2. SC Resol 1160 (1998)
3. SC Resol 1199 (1998)
4. SC Resol 1203 (1998)
5. SC Resol 1207 (1998)
6. SC Resol 1244 (1999)