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The Legality of Allied Force
By Nicholas J. Wheeler
I want to do three things in this presentation: firstly, I want to consider the main legal arguments that have been adduced in support of NATO's intervention in Kosovo, and consider how far these were reflected in the justifications proffered by NATO states. Secondly, I want to consider the opposing arguments, and thirdly, I want to briefly examine the international reaction in the Security Council to NATO's justifications. This will lead me into my conclusion where I will consider what the case of Kosovo has to tell us about the relationship between law and ethics in international society.
1. The Legal Arguments in Defence of Operation Allied Force
Three broad legal claims have been adduced to defend NATO's action, and two of these echo long-standing positions in the literature on the legality of humanitarian intervention.
Charter Arguments
The first argument is that it is a misreading of the UN Charter to think that it outlaws state(s) engaging in humanitarian intervention. The argument here is that the commitment to human rights set out in the Preamble to the Charter, and in Articles 55 and 56 of the Charter, represent purposes equally as important as the maintenance of international peace and security. And it is argued by some lawyers that if the UN Organization is failing to uphold these human rights principles, then individual states have a legal right to enforce these principles, by force, if necessary.
It is argued that humanitarian intervention is not a breach of Article 2 (4) because it does not threaten the political independence and territorial integrity of member-states, and is in conformity with the purposes of the Charter.
This appeal to an express legal right of humanitarian intervention under the Charter was not part of the arguments raised by the leading NATO governments, and nor was it in voked in the Council debates on 24 and 26 March 1999. However, it was subsequently raised by Belgium in its pleadings before the ICJ when considering the FRY's charge that NATO's action violated international law. This legal argument was first made in the early 1970s by Myres McDougal and Michael Reisman, and more recently by Fernando Tesón. But this was the first time that a state had pressed this legal argument into service.
Customary Arguments
Belgium in its testimony before the ICJ invoked as supporting state practice the three 'best cases' since 1945 that are always invoked by jurists who support a doctrine of humanitarian intervention: These are India's 1971 intervention in East Pakistan; Vietnam's intervention in Cambodia in December 1978, and Tanzania's intervention in Uganda in early 1979. However, no other NATO government invoked these three cases as precedents supporting the legality of Operation All ied Force.
What is perhaps more surprising is that no NAT0 state invoked the post-1990 cases adduced by some commentators as supporting a new custom of humanitarian intervention. The best examples here are the West's creation of the safe havens and no-fly zones in Iraq in 1991 and 1992, and the ECOWAS intervention in Liberia in 1990.
For the British international lawyer, Christopher Greenwood, these cases show that customary law 'does not exclude all possibility of military intervention on humanitarian grounds by states'. Yet this claim was conspicuous by its absence in the Council debates on the legality of NATO's action.
Implied Authorisation
The reason why NATO states were reluctant to press the customary law argument to justify military intervention in Kosovo was because they did not want to be seen as undermining the primacy of the Security Council as the body responsible for the maintenance of international peace and security. Instead, they wanted to present their action as one that was being taken in support of Security Council's purposes, and that NATO was acting on behalf of the international community.
This argument was implicit in a number of statements made by NATO governments, but it was most strongly advocated by the UK. The UK had taken the lead in late 1998 in arguing within the Alliance that there was indeed a legal basis for NATO to use force against the FRY even without explicit Security Council authorization. This reasoning was set out in a Foreign and Commonwealth Office paper circulated to NATO capitals in October 1998. The key sections are as follows:
A UNSCR [Security Council Resolution] would give a clear legal base for NATO action, as well as being politically desirable... But force can also be justified on the grounds of overwhelming humanitarian necessity without a UNSCR. The following criteria would need to be applied:
that there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;
b) that it is objectively clear that there is no practicable alternative to the use of force if lives are to be saved;
c) that the proposed use of force is necessary and proportionate to the aim (the relief of humanitarian need) and is strictly limited in time and scope to this aim.
This normative claim was given legal authority by Secretary of State for Defence, George (now Lord) Robertson, when defending the legality of 'Operation Allied Force' before the House of Commons on 25 March 1999. He stated:
We are in no doubt that NATO is acting within international law. Our legal justification rests upon the accepted principle that force may be used in extreme circumstances to avert a humanitarian catastrophe. Those circumstances clearly exist in Kosovo. The use of force...can be justified as an exceptional m easure in support of purposes laid down by the UN Security Council, but without the Council's express authorization when that is the only means to avert an immediate and overwhelming humanitarian catastrophe.
Having examined the legal bases of NATO's action, I want to turn briefly to the counter-arguments.
2. Objections to NATO's Legal Arguments
Charter Rationales
Belgium's argument that NATO's action can be legally justified as being in conformity with Article 2 (4) would, if accepted, stretch the meaning of this rule to breaking point. There is no support in the drafting history of this article to suggest such an interpretation.
I support the view that the Charter is a dynamic instrument and not a static one, and that there must be room for normative development. However, to argue that bombing a state's civilian infrastructure does not constitute a threat to its 'political independence and territorial integrity' lacks plausibility as a credible legal argument. The quest ion about Article 2 (4) is whether a further explicit exception be carved into it to permit a legal right of humanitarian intervention.
Customary Arguments
In terms of the customary law argument, the vast majority of lawyers argue that there is no state practice supporting such a right. They cite in support of this claim Judgments by the ICJ, especially the Corfu Channel and Nicaragua cases; General Assembly resolutions on the inadmissibility of intervention; and the fact that in the three 'best cases' cited by Belgium, there was no attempt to invoke the doctrine of humanitarian intervention. Moreover, the international response in each of these cases provides no opinio juris to support a legal right of humanitarian intervention in international society.
In terms of the cases in the 1990s, it is argued that the ECOWAS was in the context of a collapsed state, and that the interventions in northern and southern Iraq have to be located in the context of the Gulf War.
Moreover, the response of wider international society to these actions was acquiescence and this should not be read as evidence of a new custom.
Implied Authorisation
What, then, of 'implicit authorisation'? Although NATO tried to argue it was not undermining the primacy of the Council for the maintenance of international peace and security, critics have argued that NATO's action issues a license for the unilateral use of force. The worry is that if states see others ignoring core Charter rules when these prove inconvenient, then this will lower the inhibitions to using force when values and interests are at stake in the future. How would NATO respond, critics ask, if the Arab League was to mobilize NATO's justifications over Kosovo and launch a war to defend human rights in the West Bank and Gaza strip?
The problem with this criticism is that it overlooks the way in which the justification proffered by the UK seeks to control any legal precedent set by Kosovo for humanitarian intervention. As the British international lawyer Vaughn Lowe points out, the 'right to act' claimed over Kosovo is not a unilateral right, under which each and every state may decide for itself that intervention is warranted.
Rather, the 'prior decision of the Security Council is asserted as a key element of the justification.' The Security Council had determined under Chapter VII in Resolutions 1199 and 1203 that action was necessary to avert an impending humanitarian disaster. The UK position is that in the absence of such a determination, there would be no justification for the use of force.
It is not enough for individual states to point to the existence of an imminent humanitarian catastrophe; rather, the Council must have identified a human rights emergency as a threat to peace and security under Chapter VII. This is where the Arab League analogy breaks down be cause it would only apply if the Council had adopted a resolution under Chapter VII identifying the human rights emergency facing Palestinians as a threat to international peace and security.
However, as the FCO made clear in its note of October 1988, the use of force would still have to satisfy the requirements that it was both a necessary and proportionate response to the crisis. The problem with this argument is that it relies on the Council for the determinations of the magnitude of a humanitarian catastrophe, but then reserves the right for individual states to decide for themselves whether the requirements of necessity and proportionality have been met.
What was disputed in the Security Council over Kosovo was exactly this question as to whether the use of force was the appropriate means to end the gross violations of international humanitarian law by the FRY.
There are two further political problems with the legal argument advanced by the UK:
Firstly, having witnessed NATO bypass the Council by invoking prior determinations under Chapter VII, Russia and China might be more cautious about making such determinations in future crises where there was a risk of Western intervention, the result being that the Council would be paralyzed from adopting any enforcement measures under Chapter VII that might end the human rights abuses.
Secondly, as Simon has pointed out in his new book there is a tendency in a lot of the writing on Kosovo to assume that Russia and China were capricious in their threat to veto a resolution authorizing the use of force.
I am increasingly persuaded by the view that Kosovo was a case where there were genuine differences of opinion within the Council over whether force was the appropriate response to the crisis.
The fundamental problem, then, is how to resolve these differences. The difficulty with NATO's answer to this challenge is that it authorised itself to act, thereby taking the issue outside the UN framework. The task is to find a way of resolving these differences within the UN system.
3. International Reaction
When thinking about the legal issues, the international reaction is particularly important because it was the first time that a group of states had expressly defended the use of force on humanitarian grounds. The international response to NATO's breach of the Charter rules governing the use of force was mixed but generally favorable. The action was condemned by the FRY, Namibia, Cuba, Russia, China, and India.
However, there was no attempt to condemn the action in the GA, and a Russian draft resolution condemning the action was defeated by 12 votes to 3. This was effectively a 7-3 vote in which only Slovenia and Argentina of the non-permanent members expressed approval for NATO's action. In neither case, was the action defended in terms of the doctrine of unilateral humanitarian inter vention.
Of the Muslim states on the Council, Malaysia was surprisingly outspoken in acknowledging the political context in the Council that had forced NATO to act. The votes cast by Malaysia and the other Muslim states on the Council reflected the fact that NATO's action was saving Muslims, and it was this uneasy coalition between Muslim states and NATO that explains the defeat of the Russian draft resolution.
Certainly, the support of the Muslim states cannot be read as support for a doctrine of humanitarian intervention in international society. The conundrum was that whilst NATO's action was a breach of the law, the illegality of the action had to be weighed against the moral imperative to rescue the Kosovars.
The result was that many states operated the international equivalent of legal mitigation in domestic law systems: NATO's action was either tolerated or excused, but not legalized.
4. Conclusion: Law and Ethics over Kosovo
If we could be confident that NATO's action will remain a singular exception, then the idea of treating the case by applying the analogy of mitigation in domestic law might be reasonable.
However, this approach runs into three problems:
Firstly, treating the case as unique gives up any hope of controlling the precedent set by Kosovo. This risks opening the floodgates to interventions that are claimed to be humanitarian but which drive huge holes in the fabric of inter-state order.
Secondly, the claim that an action is illegal but moral risks driving a coach and horses through the rule of law in international relations. Law-abiding states should not be placed in the position of having to defend illegality on moral grounds. This brings the legal process into disrepute.
Thirdly, what happens if the Council is blocked by the veto in a future case like Rwanda where there the conscience of humanity cries out for action, and where the use of force is almost universally agreed to be the lesser evil.
Given these three points, I would argue that what is required is a genuine debate at the UN, and in wider civil society, as to whether there are any conditions under which humanitarian intervention is tolerable, excusable or legitimate in the absence of express Council authorisation. Agreement on the procedural and substantive criteria for judging a legitimate humanitarian intervention is urgently needed to bring ethics and law into harmony.
Yet even if it proves possible to reach a substantial measure of agreemet among states on these issues, there is the question of how the law should respond if these new rules are not satisfied in a future emergency where armed intervention is justified on humanitarian grounds. Resolving this conundrum between unilateral action, moral ends and international law poses a fundamental challenge to the international community.