Kosovo, Darfur and the gap in Humanitarian Intervention

 

 

 

 

 

 

 

 

 

Sulekha R. Tummala

LL.M. International and Comparative Law (2008)

 

 

 

 

Seminar on Nationbuilding

Fall 2007

21 December 2007

It is now the 1st week of December 2007. NATO and the African Union led forces have completed a bombing campaign in Darfur region of Sudan. The violence is at an end and Khartoum and the rebels are at talks to share power and resources.

Based on this scenario, this paper argues that an intervention on grounds of humanity in Darfur is both legal and legitimate. Analyzing the intervention in Kosovo in 1999, this paper argues that when an intervention is prima facie illegal, it can carry with it a privilege of being legitimate in a certain set of circumstances to alleviate large scale oppression of humanity.

The paper is broken up as follows, in section I, the history of humanitarian interventions is traced via the ‘just’ war theory. In section II, the United Nations Charter is interpreted and the exceptions to the use of force are found. In section III, humanitarian interventions are defined for the purposes of this paper. In section IV, the Kosovo intervention is studied. It concludes that the intervention in Kosovo was illegal but legitimate. Section V formulates an already stated framework to test for legitimacy. And finally, in section VI, based on the above scenario, it is argued that an intervention in Darfur is legal and carries the requirements of legitimacy, thus making a case for an intervention in the region.

I

Humanitarian interventions as they are known today were first propounded by the ‘just’ war theorists in the middle Ages. ‘Just’ war theory was first propounded by Augustine of Hippo[1] who formalized the concept in his book City of God[2]. Since Augustine, there have been numerous just was theorists who have added to the concept depending on their own times and circumstances[3]. The major themes in just war theory are identified as follows[4]:

Jus ad bellum

(whether resort to force is justified)

Jus in bello

(whether a particular form of force is justified)

Just cause

Proportionality (in the sense of proximate good over evil)

Right authority

Discrimination or non-combatant protection

Right intent

 

Proportionality (in the sense of total good and evil anticipated)

 

The end of peace

 

Last resort

 

 

 

Since the object of this paper is humanitarian interventions, it only concerns itself with the jus ad bellum principles and the justification behind the use of force. The following jus ad bellum principles control the use of force in the international community:

1.      Just cause – this requirement is “possibly the most inclusive idea within the just war tradition.”[5] Since the development of the doctrine the idea of just cause has evolved to include changing circumstances in the international community. According to Augustine, it is the duty of a Christian to intervene on behalf of an innocent who is oppressed. Thomas Aquinas expanded on this to include punishment as a just cause[6]. This idea of punishment as a just cause was clarified by Grotius who said

It is proper also to observe that kings and those who are possessed of sovereign power have a right to exact punishment not only for injuries affecting immediately themselves or their own subjects, but for gross violations of the law of nature and of nations, done to other states and subjects. For the liberty of inflicting punishment for the peace and welfare of society, which belonged to individuals in the early ages of the world, was converted into the judicial authority of sovereign states and princes; a right devolving upon them not only as rulers of others, but as subject to the control of no earthly power. For that is a right, which can belong to no subject.[7]

In the contemporary world, the use of force for self-defense is the only exception to a general prohibition on the use of force, as highlighted in the next section.

2.      Right authority – right authority as a requirement for just war “traditionally served to legitimize the use of force by princes, and later by states.”[8] To Augustine, this meant that rulers “have their war making authority so that they can, acting in the stead of their people and on behalf of them, weigh the causes of war and decide whether they are just”.[9] The requirement that there is a proper authority requires an inquiry into whether there is an authority that can control “the employment of force so as to limit its effects, and behind that to inquire as to the breadth and depth of popular support this authority possess”.[10]

3.       Last resort – a just war is one of last resort that should occur only after all other means, such as diplomacy, of ending the war have been exhausted. This “criterion of last resort reminds us that the use of force may be a legitimate resort, when there are no other ways left to protect values that require to be preserved”.[11]

4.      Proportionality – proportionality as a jus ad bellum principle ensures that a cost-benefit analysis is undertaken before resorting to the use of force. For Grotius this meant that

… [A] man's own life and property, and a state's own existence and preservation are either to the individual, or the state, objects of greater value and prior consideration than the welfare and security of other individuals or states.[12]

 

The “aim of the idea of proportionality is to ensure that the overall damage to human values … will be balanced evenly by the degree to which some or other of the important values are preserved or protected”.[13] Interventions can only take place where they are not detrimental to the intervening state itself. This connects back to the previous principle that just war should be of last resort since often the use of force may prove detrimental to the intervening state.

5.      Right intent – Augustine claimed that “[w]e do not seek peace in order to be at war, but we go to war that we may have peace. Be peaceful, therefore, in warring, so that you may vanquish those whom you war against, and bring them to the prosperity of peace”.[14] According to him, to fight for the innocent is to give rise to our caritas, which should never be overcome by our selfish will. A fight should be the alleviation of oppression and not perusal of self-interest.[15] Grotius added to this by saying that

[i]n speaking of belligerent powers, it was shewn that the law of nature authorizes the assertion not only of our own rights, but of those also belonging to others. The causes therefore, which justify the principals engaged in war, will justify those also, who afford assistance to others.[16]

 

            Intent to support others is always a right intent and thus a just cause of waging a war. Fighting for the rights of others is not a selfish fight and thus a just cause of waging a war.

            Parallel to the development of the just war doctrine has been the development of the concept of state sovereignty. The legal doctrine of state sovereignty defines “the liberty of states as their independence from foreign control and coercion. In fact, of course, not every independent state is free, but the recognition of sovereignty is the only way we have of establishing an arena within which freedom can be fought for and (sometimes) won.”[17] But, “if the dominant forces within a state are engaged in massive violations of human rights, the appeal to self-determination… is not very attractive… Against the enslavement or massacre of political opponents, national minorities, and religious sects, there may well be no help unless some help comes from outside.”[18] The idea of intervening where human rights violations are being carried out by the states against its citizens is not one of contemporary origin. Grotius recognized this when he said

[t]hough it is a rule established by the laws of nature and of social order, and a rule confirmed by all the records of history, that every sovereign is supreme judge in his own kingdom and over his own subjects, in whose disputes no foreign power can justly interfere. Yet where a Busiris, a Phalaris or a Thracian Diomede provoke their people to despair and resistance by unheard of cruelties, having themselves abandoned all the laws of nature, they lose the rights of independent sovereigns, and can no longer claim the privilege of the law of nations.[19]

The concept of sovereignty complicates the principles of just war since it is a double edged sword. On the one hand, sovereignty of the attacked state is violated by the use of force. On the other hand, just war theory argues that this use of force is legitimate since it is the sovereign prerogative of the attacking state to wage a war for a just cause, which is to alleviate the suffering of those oppressed. This would mean that where violations are being committed by the very state whose duty is to protect the rights of its people, then intervening and rescuing those people is just irrespective of the breach of sovereignty. One of the best examples of this idea in the contemporary world is provided by the Indian invasion of East Pakistan (now Bangladesh) in 1971 “not because of the singularity or purity of the government’s motives, but because its various motives converged on a single course of action called for by the Bengalis”.[20] This convergence explained why the Indians were in and out of East Pakistan quickly (2 weeks), defeating the Pakistani army but not replacing it and imposing no controls on the emerging Bangladeshi political process. The “intervention qualifies as humanitarian because it was a rescue, strictly and narrowly defined.”[21]

Historically then, interventions in the domestic matters of sovereign states for the purpose of rescuing humanity from oppression was considered a just cause. The justness of this cause aided the legitimacy of such action, especially due to the lack of any particular body of international law that governed the use of force in the international community. In the contemporary world, however, just war theory still supports the legitimacy of humanitarian interventions. But, there is another level of control on the use of force in the form of legality that is imposed by the Charter of the United Nations and its provisions, which forms the cornerstone of international law.                                                                   

II

The use of force in the international community, as mentioned above, is governed by the United Nations Charter. In particular, Chapter I (Purposes and Principles) and Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression)[22] define the parameters constraining the legal use of force. Interpretation of the Charter can be found in Article 5 of the Vienna Convention on the Law of Treaties (VCLT)[23], since it applies to the “[t]reaties constituting international organizations.” [24] Even though, Article 4 of the VCLT states that the treaty shall not have retroactivity[25], Articles 31 to 33 of the Treaty are applied to the interpretation of the United Nations Charter by analogy.[26] While the VCLT has not been ratified by all the Members of the United Nations, it has become a part of customary international law and is rules of interpretation are used as part of this customary law[27]. Article 31 of the VCLT lays down the rule of interpretation which states that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”[28]

The interpretation of ‘human rights’ and its scope with the United Nations system has been clarified by the 1948 Universal Declaration of Human Rights[29], the 1966 International Covenant on Civil and Political Rights[30] and the 1966 Convention on Economic, Social and Cultural Rights.[31] While there are no effective enforcement procedures of these rights[32], they are considered a universal standard and accepted as a part and parcel of international law. These resolutions are proof that the United Nations Charter is not a fixed set of principles or rules rather that it is an evolving body that is not oblivious to its time and circumstances. The interaction between human rights and the Charter is made clear in the above General Assembly resolutions which recognize the obligation of member states under the United Charter and their duty to cooperate with the United Nations to promote peace and security. General Assembly resolutions amend customary international law, but they do not implicitly amend the Charter itself.

There is no consensus among legal scholars regarding the legality of humanitarian interventions under Article 2(4) of the Charter. Many scholars argue that under certain circumstances, humanitarian interventions are legal[33], however, this view, though widely held is not universally accepted[34]. A strict interpretation of the Charter per Article 31 of the VCLT would mean that member states cannot use force against the “territorial integrity or political independence of any state”.[35] The argument has been that humanitarian interventions do not violate either territorial integrity or political independence; they merely alleviate the oppression of those being abused[36]. This interpretation would create an absurdity, since the next part of the article states that force or the threat of force should not be used in any manner inconsistent with the Charter obligations of member nations. The Charter does not “contain the slightest hint of the validity of Art. 2(4) being in any way conditioned by the effectiveness of collective mechanisms for the protection of human rights”. [37]The purpose of the provision was to divest states from using force or the threat of force as a tool of their international policies[38]. This would mean that humanitarian interventions are contrary to obligations under article 2(4). Additionally, there is no evidence of state practice or opinion juris that has led to an amendment of the Charter “by means of customary international law, in the sense of recognizing humanitarian interventions as an exception to the prohibition laid down in Art. 2(4)”.[39]

Article 51 of Chapter VII states

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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-defense 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 and security.[40]

 

Under this article, a State or a group of states may be justified in using force in order to defend itself from outside aggression by another State; but, this self-defense or collective self-defense privilege should be treated as privileging a last resort to force rather than a first step in State defense. Article 51 is to be read in conjunction with Article 2(4) since it is the exception to the rule against the use of force. Further, Article 2(4) restricts the right to self-defense and use of force must be read in light of this restriction.[41] This authority of self-defense is limited in two ways, namely that any state responding to an attack must “observe the principle of proportionality”[42] and the state must report the breach of peace to the Security Council. Since the words of article 51 mention “armed attack”[43], there has been some discussion about the level of armed attack. There are two methods of interpreting these words[44], the first approach follows a restrictive methodology and concludes that the armed attack must be of substantial scope and scale before force is permitted in self-defense. The second approach allows for a broader interpretation and allows for self-defense even in cases where the armed attack is not of considerable scope and scale, and this self-defense must be in proportion to the attack on the state’s borders. This means that where a border patrol shoots bullets into the boundary of the violated country, the response must simply be an exchange of gun fire across the border and not a full scale attack on the capital of the other state. Following either method of interpretation, humanitarian intervention cannot be justified as a form of self-defense. Even when human rights violations have spread over the border to a member state, this would not necessitate a forceful intervention due to the disproportionate nature of the response. A state may be unable to cope with refugees from a neighboring state where violations are occurring, but dropping a bomb on the neighboring state would still be a disproportionate use of force since it could lead not only to further repercussions on the oppressed, but the possibility force being used against the state in question as well.[45]

Article 2(4) prevents members from using force or the threat 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.”[46] Additionally, article 2(7)[47] specifically prevents the United Nations, as an institution, from intervening in domestic matters of any state. This recognizes the sovereign rights of nations to regulate their own people. But, this provision comes with a caveat, namely that it cannot be used to usurp the function of Chapter VII, which empowers the Security Council to take measures to “maintain international peace and security”.[48] The Security Council not only has the power to resolve incidents and determine whether each one poses a threat to international peace and security, but more importantly, it is authorized to legitimate action in response to that threat.

III

What then constitutes a humanitarian intervention? The definition has not been constant. It has changed over time to encompass new situations and evolving human needs. “Intervention on the grounds of humanity[49] was used in the 19th century to refer to the protection of one’s citizens in a foreign country and in situations of “particularly shocking acts”[50] performed by a state against its own citizens. Some have defined it as “the right of one State to exercise international control over the acts of another in regard to its internal sovereignty when contrary to the laws of humanity.”[51] Others, defined it as the

coercive action by States involving the use of armed force in another State without the consent of its government, with or without the authorization from the United Nations Security Council, for the purpose of preventing or putting  to halt gross and massive violations of human rights or international humanitarian law.”[52]

A third definition categorized them as “the use of force without the authorization of the Security Council to protect sections of a State’s population from gross and persistent human rights abuses.”[53] And finally, interventions have also been defined as “saving innocents from certain harm, or... those in need of rescue. Augustine might evoke the neighbor love here, that is, serving one’s neighbor in the name of a form of friendship and stewardship.”[54]

For the purposes of this paper, then, humanitarian interventions are defined as having the following components, namely, (i) intervention by a state in the internal affairs of another to prevent the gross and persistent violations of human rights of a section of the population; and (ii) the lack of authorization by the Security Council. In short, this paper defines humanitarian interventions as the collective action of states in the internal affairs of another state to prevent the gross and persistent abuses of human rights against a section of the population, without Security Council mandate.

The definition of humanitarian interventions formulated for the purposes of this paper is a perfect in defining the intervention in Kosovo since it fits the components. There were human rights violations against the Kosovar Albanians that needed to be stopped and the NATO action lacked authorization from the Security Council. The next section analyzes the intervention and its status under international law.

IV

The origins of the conflict[55] in Kosovo can be traced back to the fourteenth century and the Turkish Ottoman Empire. The year 1389 marked the beginning of 500 years of the Turkish Ottoman Rule in the region, which led to the migration of Christians Serbs from the area and tipping the population in favor of Muslims and Albanians.[56] In the 1912 Balkan Wars, the Serbians regained control of Kosovo from the Turks, which was recognized by the Treaty of London in 1913.[57] At the same time, Albania as we know it was formed and given recognition. During the Paris Peace Conference, the region of Yugoslavia was recognized by the diplomats with Croatia, Serbia, Slovenia, Macedonia, Bosnia, Montenegro, and Kosovo all glued together as the “Kingdom of Serbs, Slovenes and Croats.” During World War II, much of the region came to be under Italian control, but in 1947 the state was reconstituted under Marshall Tito and consisted of six republics, namely Serbia, Montenegro, Croatia, Slovenia, Bosnia and Herzegovina, and Macedonia. In 1974, Kosovo, a small “diamond shaped patch of land”[58] in Serbia was granted full autonomy. This autonomy was then removed by the Serbian President Slobodan Milosevic in 1989, triggering Serbian fears of ethnic domination in Kosovo. In 1993, the original Popular League for the Republic of Kosovo (LPRK) was restructured as the Kosovo Liberation Army (KLA) that began its tactics of guerrilla warfare though two means the first by “preventing penetration of the KLA” and the second by eliminating or intimidating individuals who were formally or informally part of the Serb secret police”.[59] The KLA gained popular support in 1995 after the Dayton Peace Accords left out Kosovo and concentrated on the conflict in Bosnia. In 1997 the Serbian government’s most aggressive attempt to crush the KLA backfired resulting in the deaths of women and children. Coupled with this, the collapse of the state of Albania allowed the KLA an easy route to weapons. The KLA then began military conflict, the Serbian response to which resulted in hundreds of thousands of refugees fleeing to Albania and Macedonia calling for urgent international action. The international community began diplomatic actions which were frustrated by Milosevic’s insistence on dealing with the KLA as internal terrorism under the guise of sovereignty and the international community’s reluctance of legitimizing the KLA by negotiating with it. A ceasefire was agreed to in October 1998 that was breached by the KLA in late December 1998. During this period, the United Nations Security Council passed resolutions[60] calling for the end of the conflict, which were ignored and flouted by Serbia. Diplomatic effort was made for a final time in Rambouillet, France which failed due to a lack of compromise on Milosevic’s part. Frustrated by the lack of agreement NATO began its campaign of aerial bombing in March 1999 that drove the Serbian forces out of Kosovo in June 1999.

The humanitarian intervention in Kosovo by the North Atlantic Treaty Organization has caused a “casuist’s dilemma”.[61] Scholars, lawyers and theorists were left to ponder the state of affairs in the international arena when a ‘just’ action to end the suffering of hundreds of thousands of people lacked authorization of the Security Council.[62]

The analysis of use of force begins and ends with the Charter. As mentioned above, the use of force is permissible only in two instances, namely, self-defense (individual or collective), and following the authorization of the Security Council. Article 2(4) of the Charter prevents the use of force and prevents Members from acting in any manner “inconsistent with the Purposes of the United Nations”[63], which is to maintain “peace and security”[64]. Historical interpretation and teleological interpretation[65] of the Charter show that “the prohibition ... was, and is, intended to be of a comprehensive nature”.[66] The wording of the article is not designed to allow “room for any exceptions... but rather to make the prohibition watertight”.[67] This ban on the use of force then cannot be reconciled with the actions of NATO. It is accepted that a mass evacuation of refugees causes instability in neighboring countries, but this does “not constitute an armed attack”.[68] The International Court of Justice reached a similar conclusion in Nicaragua v United States[69] where it held that “... [w]hile the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect”.[70] Further, in Yugoslavia v. Belgium[71], the ICJ expressed reservations on the use of force for humanitarian interventions when it said that “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 law … [and it emphasized] … that al1 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 .”[72]

As for authorization by the Security Council, it is hard to find wording in the Resolutions passed with regards to the situation in Kosovo that allow for the use of force. The Security Council began passing Resolutions since 1998 underlying the gravity of the situation in Kosovo. The first Resolution, 1160, was passed on 31 March 1998 in which the Security Council recognized the “commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia”[73], called for the ban on supply of weapons to Yugoslavia and dialogues for the peaceful resolution of the fighting. This “affirmation of sovereignty and territorial integrity, however, was balanced by a warning…”[74] which stressed that the Security Council would take “additional measures”[75] if no progress was made towards a peaceful resolution. The Resolution also stated that the Security Council acting under its Chapter VII powers deemed the situation in Kosovo to be a threat to peace and security of the region.[76] The United States argued that the recognition of situation as a threat to peace and security provided a legal basis for the intervention, but the wording of the resolution referred to action at a future date, which meant that the use of force was yet unauthorized.

A second Resolution, 1199 (1998) passed on 23 September 1998 stated that the Security Council was

gravely concerned at the recent intense fighting in Kosovo and in particular the excessive and indiscriminate use of force by Serbian security forces and the Yugoslav Army which have resulted in numerous civilian casualties and, according to the estimate of the Secretary-General, the displacement of over 230,000 persons from their homes.[77]

 

The Resolution called on Yugoslavia to take measures for the safety of the displaced and called on international help to monitor the conditions in Kosovo. The Resolution ends with the Security Council stating that should Yugoslavia fail to take the necessary actions under Resolutions 1160 and 1199, the Security Council would “consider further action and additional measures to maintain or restore peace and stability in the region.”[78]

In a third Resolution, 1203 (1998), showed alarm at the worsening situation in Kosovo and reiterated that the situation was a “threat to peace and security of the region”.[79] None of these three resolutions contains words that allowed the use of force by NATO. All of the resolutions classified Kosovo as a threat and warned of further actions that would be taken. But, none of the resolutions have wording in them that gave either implicit or explicit permission for NATO to take action.

Further resolutions were passed by the Council, Resolution 1239[80] (which was passed during the bombing campaign) and 1244[81] (which was passed after the end of the aerial campaign). Neither of these resolutions commented upon NATO’s actions in Yugoslavia. This lack of comment simply meant that the Security Council refused to comment on the legality of the issue. Cassese argues that “NATO have not put forward any legal justification based on the United Nations Charter: at most they have emphasized that the Security Council had already defined the situation in Kosovo as a ‘threat to peace’… [That] does not constitute per se a legal ground for initiating an armed attack against a sovereign state.”[82] Casesse further argues that

[i]n the current framework of the international community, three sets of values underpin the overarching system of inter-state relations: peace, human rights and self-determination. However, any time that conflict or tensions arise between two or more of these values, peace must always constitute the ultimate and prevailing factor. Under the UN Charter system, as complemented by the international standards which have emerged in the last 50 years, respect for human rights and self-determination of peoples, however important and crucial it may be, is never allowed to put peace in jeopardy. One may like or dislike this state of affairs, but so it is under lex lata.[83]

 

The restraints placed by the United Nations Charter on the legality of interventions and wars can be “viewed as consistent with, not antithetical to, Augustinian just war tradition.”[84] According to Thomas Lee, Security Council authorization is a filter that clarifies the actual motive of an intervention. He argues further, that when one powerful Nation is acting in its self interest and stands to gain excessively from the intervention, then the likelihood that other permanent members of the Security Council will veto the action is strong. As Lee puts it, “self-interest checks self-interest”.[85] For any intervention to be just there must be right intention. When the real intention motivated by self-interest is unspoken behind humanitarian interventions, any use of force, even that used to alleviate the suffering of the oppressed, is unjust. The reality, however, is stark, since it is rare to find a pure humanitarian motive behind most interventions. Self-interest and national politics will always be the deciding factor when nations decide to intervene in situations outside of their own borders.[86]

Elshtain argues that politics is that tool which allows us to confront the “otherness” of people. It is the mechanism by which humans deal with what Augustine called the constant features of humanity, namely “estrangement, conflict and tragedy.”[87] Nothing is assured in this world, least of all peace. The ultimate goal of just war, however, is peace that “achieves a greater measure of justice.”[88] Just war, according to Elshtain is a “cluster of injunctions”[89] which lay down the rules of what is permissible and impermissible in war. War, she says[90], must be a last resort, it must be openly and legally declared and it must be a response to an instant of unjust aggression. She then argues that there are other occasions when war can be justified, namely when, “the offence of aggression [is being] committed against a nation or people incapable of defending itself against a determined adversary.

The Report of the Independent International Commission on Kosovo[91] concluded that

 

[T]he NATO military intervention was illegal but legitimate. It was illegal because it did not receive prior approval from the United Nations Security Council. However, the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule.

 

This would mean that a prima facie illegal war carry with it legitimacy as a privilege when the intentions are right and the innocent are rescued from oppression.

The dilemma with the Charter is that it is an ongoing debate between human rights and their supremacy on one hand and the principle of state sovereignty and its importance in a world that lacks a central authority. What the law reflects is that where unilateral humanitarian intervention is involved, the “justification ... is often ambiguous, involving uncertainties of fact and motive, and difficult questions of degree and “balancing” of need and costs”[92], but as the then United Nations Secretary General said “[i]t is indeed tragic that diplomacy has failed, but there are times when the use of force may be legitimate in the pursuit of peace.”[93]

Legitimacy of the use of force in Kosovo is further supported by the actions of the Security Council during and after the aerial bombing. The first[94], action occurred during the bombing when the Security Council refused to deem NATO’s actions illegal.[95] A draft resolution was submitted by Belarus, India and the Russian Federation declaring the intervention as contrary to the provisions of the United Nations Charter. This draft resolution was defeated in the Council by a vote of twelve to three, an occurrence that seemed to suggest that most of members of the Council thought NATO’s actions were legitimate.[96] The second action that seemed to legitimize NATO’s intervention was the passing of Resolution 1244[97]. While the Resolution did not declare that NATO’s actions were legal it did endorse the consequences of the intervention and its role in facilitating peace in the region. For many writers, this resolution clearly connects legality and legitimacy[98], nonetheless, this paper contends that the resolution merely illuminates the Security Council’s changing attitude towards humanitarian interventions and acceptance of evolving circumstances in the international community, where legitimacy can exist independent of legality. Walzer sums it up when he said,

Humanitarian intervention is justified when it is a response (with reasonable expectations of success) to acts “that shock the moral conscience of mankind.” The old-fashioned language seems to me exactly right. It is not the conscience of political leaders that one refers to in such cases. They have other things to worry about and may well be required to repress their normal feelings of indignation and outrage. The reference is to the moral convictions of ordinary men and women, acquired in the course of their everyday activities. And given that one can make a persuasive argument in terms of those convictions, I don’t think that there is any moral reason to adopt the posture of passivity that might be called waiting for the UN…[99]

 

The relationship between legality and legitimacy is that “legality clarifies the core obligations relating to force, while legitimacy tries to identify and delimit a zone of exception that takes into account of supposedly special circumstances”.[100] This has been a “problematic and controversial means of achieving flexibility because the delimitation proposed lacks endorsement by the United Nations or acceptance by the governments of leading states”.[101] Invoking legitimacy via the just war doctrine to validate the international use of force serves two purposes. It acknowledges the “authority of law as serving normal needs of global society”[102] on one hand, and on the other, it acknowledges the “dysfunctionality [of law] when extended to govern selected exceptional situations”.[103] But, undermining the requirement for law and order by pleading exceptional circumstances leads to an erosion of established principles of order under the Charter system. Interpreting the Charter to allow certain special circumstances so as to gain legality also leads to the same erosion since it challenges the confidence in the law. Interpreting the Charter rigidly leads to a situation where the law is considered inadaptable and fails it purpose in a changed world. The solution to the gap between legality and legitimacy may be to acknowledge that

[i]t is possible that principled violations of the Charter norm on force would serve an equivalent purpose to that of complementing legality with legitimacy. Yet to engage in behaviour that is admittedly ‘illegal’ seems to diminish respect for law more than to contend that incompleteness or new circumstances produce reasonable exceptions to law that should be constrained by principled considerations and treated as temporary. In this usage of ‘legitimacy’ it might be better to think of the exception as quasi-legal...[104]

 

IV

A compelling moral argument supporting an intervention, while necessary, is never in itself enough to justify a humanitarian intervention as legitimate. When humanitarian interventions do occur, “it would certainly not suffice to claim to wage a ‘just’ war.”[105] Just wars waged in the Middle Ages had to be just in order to be legitimate. But, the UN Charter now controls the use of force and is the body of law that defines the legality of actions in the international community. In the wake of the Kosovar intervention, the vacuum that existed between morality and legality has been filled with formulae by various writers.[106] These differ from the detailed and complex to the “charmingly simple (and utterly unworkable) principle”[107] by Michael Levitin. Each writer brings his or her own unique perspective to evaluating the legitimacy of an intervention; however, common themes as recognized by Chesterman, are as follows:[108]

·        Firstly, there must exist human rights abuses on the part of the target state, which are both severe and immediate. Phrases such as ‘shocking the conscience of mankind’ are used, recalling the language of the General Assembly.[109]

·        Secondly, there must be no realistic peaceful alternative to the intervention. Diplomacy and negotiations must have been tried and failed, and no international body that could peacefully intervene.

·        Thirdly, collective action must have failed. The Security Council must be unable to act either due to a veto or a threat of veto, and must not have expressly prohibited the intervention.

·        Fourthly, the unilateral action must be limited to the amount required to prevent further violations. The use of force must be proportional and should carry with it some chance of success.

·        Finally, the motive should be clearly humanitarian. The intervening parties must be intervening only to alleviate the suffering of the oppressed and not use that motive as a cover for an imperialistic agenda.

 

Chesterman argues that history proves that interventions in the past have barely managed to fit even three of the above criteria and that most of them have failed on the last one since national interests of states will always determine whether or not they will act.[110] Irrespective of the truth of that argument, this paper contends that these criteria, however flawed, still provide some guidance in a world that lacks formal guidelines governing humanitarian interventions.

Whether or not Kosovo remains an exception or becomes a norm remains to be seen. Legitimacy should never trump legality or lack thereof. This means that legitimacy alone is not enough as a justification in situations when legality is required. Law in the international system exists for a reason – to maintain international peace and security – and so far it has been able to maintain that peace and security. State action has, via customary international law, failed to achieve a consistent practice that has narrowed the gap between legitimacy and legality.[111] Peace is and should remain of paramount importance. But, the reality of the international system is that self-interest is the guiding force of nations and the veto power does exist to cripple the effective functioning Security Council. Clearly the dilemma then becomes whether to act and rescue humanity or sit back and watch atrocities behind the cloak of legality.

One of the lessons to be learned from Kosovo is to use the above principles to judge whether or not an intervention should occur. So far, the formulae provided have been used post hoc, to legitimize interventions after the action had taken place. In the next section, this paper uses the above criteria to judge whether a unilateral (by a collective body or states) intervention in Darfur can be justified or not.

V

Darfur, a region of Western Sudan, has been embroiled in conflict since 2003. The lines of conflict are primarily tribal with the Sudanese military and Janjaweed (militia composed mostly of Arab camel-herding tribes from the North) on one side and a number of rebel groups (from the Fur, Zaghawa and Massaleit land tilling ethnic groups) on the other. Environmental reasons, namely the scarcity of water, have been one of the chief causes of the conflict. Approximately 400,000 people have died since the start of the conflict, with over two million people displaced and three million in need of humanitarian assistance.[112] The conflict in the area has roots as far back as the fighting during the 1980’s.[113] An Arab Alliance was formed in the region in 1987 based on ideologies rather than race, which was encouraged by the Sudanese government since it served in keeping the non-Arab groups in check. [114] In 2003 though, the Darfur Liberation Front (DLF) and the Justice Equality Movement (JEM) demanded economic equality and power sharing from the government of Sudan. Both these groups, comprised primarily of the land tilling ethnic groups blamed the government for the socio-economic and political marginalization of the people of Darfur.[115] The Sudanese government has disclaimed any support to the Janjaweed, but it has provided the militia with money and assistance. Even if the government does not support the militia, it is still responsible since it has failed it its legal obligation as a state to protect human rights.[116]

Diplomatic efforts to end the conflict were unsuccessful.[117] In December 2004 - January 2005 the government and rebels signed a peace deal agreeing to share wealth and power.[118] The United Nations expressed its concerns over the situation and came close to calling it genocide.[119] In May 2006 the Darfur Peace Agreement was signed by the main rebel faction and the Sudan Liberation Army, but the agreement was rejected by a majority of the rebels and fighting continued. In August of the same year, Sudan rejected Resolution 1706[120] authorizing a peace keeping force of 17,300 saying that it infringed on sovereignty. In November 2006 the area witnessed the worst fighting since the beginning of the conflict. Four planting seasons had been missed and Doctors without Borders declared that humanitarian assistance was “hanging by a thread”.[121] In May 2007 the International Criminal Court issued warrants for the arrest of a militia leader and a minister who are suspected of war crimes and U.S. President George W. Bush announced fresh sanctions against Sudan[122]. In July of this year, the Security Council passed a resolution that authorized 26,000 peace- keeping troops to the region and Sudan agreed to cooperate with the peace-keeping force UNAMID (the United Nations –African Union Mission in Darfur).[123]

The intervention in Darfur by the African Union and NATO is legal due to Resolution 1769, which authorized the use of force in section 15. Section 15 says that the Security Council acting

Acting under Chapter VII of the Charter of the United Nations:

(a) decides that UNAMID is authorized to take the necessary action, in the areas of deployment of its forces and as it deems within its capabilities in order to:

(i) protect its personnel, facilities, installations and equipment, and to ensure the security and freedom of movement of its own personnel and humanitarian workers,

(ii) support early and effective implementation of the Darfur Peace Agreement, prevent the disruption of its implementation and armed attacks, and protect civilians, without prejudice to the responsibility of the Government of Sudan.[124]


             The intervention also is legitimate because it satisfies the criteria in section IV. The criteria are satisfied as follows:

·        Firstly, there must be existence of human rights violations, which have established by the Parliament of the European Union, which voted 566 to 6 in 2004 to declare the events as “tantamount to genocide”.[125] Additionally, President Bush, condemned the events as genocide[126] and it is recognized that “[t]he tragedy in Darfur is one of the greatest humanitarian disasters of our time."[127]

·        Secondly, negotiations must have failed before forceful intervention. Past dealings in the peace process have been failures. At the start of the conflict in 2003, there were two rebel movements, the Sudan Liberation Army (SLA, which was the Darfur Liberation Front until 2003) and the Justice for Equality Movement (JEM); now there are twelve rebel movements.[128] Additionally, the Arabs of Sudan, a crucial group to the conflict are being marginalized from the peace process, almost to the point of exclusion.[129] World leaders are eager for a ceasefire and peace talks scheduled to be held in Libya[130], which are delayed. There are reservations about these talks among the people of Darfur since Libya is not viewed as a neutral party.[131] But “when what is going on is the “ethnic cleansing” of a province or a country or the systematic massacre of a religious or national community, it doesn’t seem possible to wait for local response.”[132]

·        Thirdly, the Security Council has been unable to reach a consensus until recently when it deployed a peacekeeping mission to Darfur. Walzer, however, argues that “peacekeeping is an honorable activity, but not if there is no peace. Sometimes, unhappily, it is better to make war.”[133] Since the Security Council has authorized the use of force in Resolution 1769, the gap between legality and legitimacy is bridged in this case.

·        Fourthly, the use of force is proportional to stopping the conflict.

·        Finally, the strongest motive is humanitarian even though China’s vote was gained only after a threat to boycott the Beijing Olympics. But as established earlier in this work, purely humanitarian motives are rare and self-interest compels state actions.

VI

The use of force in Darfur carries with it prima facie legality due to the wording of the Security Council resolution that requires the peacekeeping force to maintain peace and facilitate the peace agreement. The presence of the African Union in the intervention adds to both the legality and legitimacy of the intervention, since AU troops are part of the peacekeeping force, and the AU will rightly be interfering in a situation which threatens to disrupt peace in the region as per Article 4 of its Constitutive Act[134]. An intervention in Darfur is necessary and should be undertaken.

The Kosovar intervention raised a multitude of questions that remain unanswered. The case in the ICJ is still pending, so some of these questions remain unanswered eight years after the fact. Both Kosovo and Darfur had governments that should have taken action and lived up to their legal obligations. Would legality and legitimacy differ then in situations where the state has failed and requires intervening to prevent large scale spread of diseases?[135] Does a failed state remove obligations that require respecting of sovereignty? How then would legitimacy interact with legality in that situation? These questions require answers, the urgency of which is yet answerable. Maybe the approach taken by writers to narrow the gap between legality and legitimacy is the right method to answer these questions, or maybe, the simple conclusion at the end of the day is that there is a positive role that is played by legitimacy, which is “to impart a measure of flexibility with respect to the application of legal constraints on the use of international force in two, and only two, sets of circumstances: conditions of humanitarian necessity (Kosovo; Darfur, Sudan) and circumstances of defensive necessity (1967 War in the Middle East; Afghanistan War of 2002)”.[136]

 

 



[1] Augustine was born at Tagaste on 13 November, 354. He became the See of Hippo in 396 and remained in that position for 34 years. The City of God, his major work took 13 years to write. The most important ideas of Augustine are those which centre around his doctrine of two cities: civitas dei and civitas terrena. Augustine argues that a state may justly wage war where its own existence is threatened or the established order is placed in doubt. A war may then be just in relation to the rules that govern human society. But war is never morally attractive since it brings with it evils that can make the most just of causes unjust. War should never be fought for the love of violence or a lust for power, only from necessity. 

For more information on St. Augustine, see Eugène Portalié, Life of St. Augustine of Hippo, available at http://www.newadvent.org/cathen/02084a.htm (last visited 9 December 2007) and on theory see Howard Williams, International Relations in Political Theory (1992).

[2] Augustine, City of God (Philip Schaff  trans., 1890) (AD 426) available at http://www.ccel.org/ccel/schaff/npnf102.toc.html (last visited 20 November 2007).

[3] Few of the theorists include: Hugo Grotius, De Jure Belli ac Pacis (A. C. Campbell trans., 1814) (1625) available at http://www.constitution.org/gro/djbp.htm (last visited 19 November 2007); Thomas Aquinas, Summa Theologica (Fathers of the English Dominican Province trans., 1947) available at http://www.ccel.org/a/aquinas/summa/SS/SS040.html#SSQ40A1THEP1 (last visited 19 November 2007).; Michael Walzer, Arguing About War (2004); Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (1977); James Turner Johnson, Can Modern War Be Just (1984);

[4] Johnson, supra note 3 at page 18.

[5] Johnson, supra note 3 at page 19.

[6] Thomas Aquinas, supra note 3 at Question 40.

[7] Grotius, supra note 3 at Book II, Chap 21, XL.

[8] Johnson, supra note 3 at page 22.

[9] Johnson, supra note 3 at page 22

[10] Johnson, supra note 3 at page 24.

[11] Johnson, supra note 3 at page 24.

[12] Grotius, supra note 3 at Book II, Chap 25.

[13] Johnson, supra note 3 at page 25.

[14] See generally, Augustine, supra note 1, http://www.ccel.org/ccel/schaff/npnf102.iv.XIV.6.html (last visited 20 November 2007).

[15] For an overview, see - Thomas H. Lee, The Augustinian Just War Tradition and the Problem of Pretext in Humanitarian Intervention, 28 Fordham Int’l L. J. 756 – 762 (2004 – 05)

[16] Grotius, supra note 3 at II, 25, I.

[17] Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations  88 (1977).

[18] Walzer, supra note 17 at page 101.

[19]Grotius, supra note 3 at Book II, Chap 25, VIII.

[20] Walzer, supra note 17 at page 105.

[21] Walzer, supra note 17 at page 105.

[22] UN Charter, Chapters I and VII available at http:// www.un.org/aboutun/charter/ (last visited 20 November 2007).

[23] Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331

[24] Art. 5 - The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.

[25] Art. 4 - Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.

The VCLT was signed in 1969, and states no retroactivity, which means inapplicability to treaties signed before 1969.

[26]The Charter of the United Nations: A Commentary 30 ( Ed. Bruno Simmaet al. Eds., 1994).

[27] Simma, supra note 26 at page 30 – “As for the provisions laid down in the Vienna Convention, the ICJ has held that they may ‘in many respects be considered as the codification of existing customary international law’. This rationale, which led the ICJ to apply Art. 60 of the VCLT, should also result in the application of the Convention’s rules of interpretation”.

[28] A31, supra at note 23.

[29] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948)

[30]International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); 6 I.L.M. 368 (1967)

[31] International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; S. Exec. Doc. D, 95-2 (1978); 6 I.L.M. 368 (1967).

[32] Simma, supra note 26 at page 29.

[33]For an overview, see - Jean-Pierre L. Fonteyne, The Customary International Law Doctrine of Humanitarian Law: Its Current Validity under the U.N. Charter, 4 Calif. W Int’l J L. 203 (1974).

[34] Simma, supra note 26 at page 125.

[35] United Nations Charter, article 2, para. 4.

[36] Simma, supra note 26 at page 123.

[37] Simma, supra note 26 at page 123.

[38] Simma, supra note 26 at page 123.

[39] Simma, supra note 26 at page 124.

Humanitarian interventions have been classified in other terms due to the lack of acceptance from the international community. Bosnia and Kosovo were justified as humanitarian interventions, but there is no proof that they have become customary international law and an exception to the prohibition in Art. 2(4).

[40] United Nations Charter, art. 51

[41] Simma, supra note 26 at page 664.

[42] Simma, supra note 26 at page 664.

[43] United Nations Charter, art. 51

[44] Simma, supra note 26 at page 664.

[45] Simma, supra note 26 at page 663-4 – The UN Charter did not intend to exclude self-defence entirely, but restricted its scope considerably. A comparison of the different wording of the two provisions illustrates that, remaining uncertainties apart, ‘armed attack’ is a much narrower notion that ‘threat or use of force’. If Article 51 is thus read in connection with Art. 2(4), the stunning conclusion is to be reached that any state affected by another state’s unlawful use of force not reaching the threshold of ‘armed attack’ is bound, if not exactly to endure the violation, then at least to respond only by means falling short of the use or threat of force, which are thus often totally ineffective. This at first sight unacceptable result is undoubtedly intended by the Charter, since the unilateral use of force is meant to be excluded as far as possible.

[46] United National Charter, art. 2, para. 4

[47] UN Charter – Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

[48] United Nations Charter, chapter VII.

[49] Anne Ryniker, The ICRC’s position on “humanitarian intervention”, 83 IRRC 527 (528) (2001); italics added

[50] Ryniker, supra note 49 at 528.

[51] Ryniker, supra note 49 at 528, (quoting Francis Kofi Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention, Kluwer Law International, 1999 at p. 31)

[52]Ryniker, supra note 49 at page 528, (quoting Humanitarian Intervention, Legal and Political Aspects, Danish Institute of International Affairs, 1999 at p. 11).

[53] A. P. V. Rogers, Humanitarian Intervention and International Law, 27 Harv. L. J. & Pub. Pol’y. 725, 730 (2004).

[54] Elshtain The Thrid Annual Grotius Lecture: Just War and Humanitarian Intervention, 95 Am. Soc’y Int’l L. Proc. 1, 7 (2001).

[55] Henry H. Perritt, Jr., Kosovo Liberation Army: Inside Story of an Insurgency (in press 2008) at KLA/7.

[56] Timeline: Kosovo (A Chronology of Key Events), http://news.bbc.co.uk/2/hi/europe/country_profiles/3550401.stm (last visited 12 December 2007).

[57] Timeline: Kosovo, ibid.

[58] For a history of the conflict generally refer to Henry H. Perritt, Jr., supra note 55.  

[59] Perritt, supra note 55 at page KLA/12.

[60] Resolutions on Kosovo - S. C. Res. 1160, U.N. SCOR 53rdt Year Resolutions and Decisions of the Security Council 1998, U.N. Doc S/INF/54 (1998); S. C. Res. 1203, U.N. SCOR 53rdt Year Resolutions and Decisions of the Security Council 1998, U.N. Doc S/INF/54 (1998); S. C. Res. 1199, U.N. SCOR 53rdt Year Resolutions and Decisions of the Security Council 1998, U.N. Doc S/INF/54 (1998); S. C. Res. 1239, U.N. Doc. S/Res/1239 (14 May 1999); and, S. C. Res. 1244, U.N. SCOR 54th  Year Resolutions and Decisions of the Security Council 1999, U.N. Doc S/INF/55 (1999).

[61] Ruth Wedgwood, NATO’s Campaign in Yugoslavia, 93 Am. J. Int’l L. 824, (858) (1999).

The term refers to someone whose reasoning is subtle and often specious. Casuistry is an ancient art of case reasoning used to resolve moral dilemmas, whose “golden age” was the late Middle Ages. For more information, look to Article on “Casuistry.” Pp. 83–88 of the Encyclopedia of Rhetoric. Ed. Thomas O. Sloane. New York: Oxford University Press, 2001 available at  <http://www.she-philosopher.com/library.html> (last visited 12 December 2007).

[62] Generally refer to – John J. Merriam, Kosovo and the Law of Humanitarian Intervention, 33 Case W. Res. J. Int’l L. 111 (2001); Laura Geissler, The Law of Humanitarian Intervention and the Kosovo Crisis, 23 Hamline L. Rev. (2000); Bartram S. Brown, Humanitarian Intervention at a Crossroads, 41 Wm. & Mary L. Rev. 1683 (2000); David Vesel, The Lonely Pragmatist: Humanitarian Intervention in an Imperfect World, 18 BYU J. Pub. L. 1 (2000); Ralph Zacklin, Beyond Kosovo: The United Nations and Humanitarian Intervention, 41 Va. J. Int’l L. (2001); H. B. Mccullough, Intervention in Kosovo: Legal? Effective?, 7 ILSA J. Int’l & Comp. L. 299 (2001); Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EJIL, 1 (1999); Antonio Cassese, Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community, 10 EJIL 23 (1999); Peter Hilpold, Humanitarian Intervention: Is there a Need for Legal Reappraisal?, 12 EJIL 438 (2001); W. Michael Reisman, Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention, 11 EJIL 3 (2000); Alain Pellet, Brief Remarks on the Unilateral Use of Force, 11 EJIL 385 (2000); Editorial Comments: NATO’s Kosovo Intervention, 93 Am. J. Int’l L. 824 (1999).

[63] United Nations Charter, art. 2, para. 4

[64] United Nations Charter, preamble.

[65] The method of teleological interpretation searches for the purpose (greek telos) of a law.

For more on this interpretative method, see Dr. Karl Friedrich Lenz, Interpretation of Article 52 of the European Patent Convention in view of the question, to what extent software is patentable, available at <http://eupat.ffii.org/analysis/epc52/exeg/index.en.html#tele> (last visited 12 December 2007).

[66] Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EJIL 2, (2) (1999).

[67] Bruno Simma, ibid at page 3.

[68] Bruno Simma, ibid at page 5.

[69] Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), 1986 I.C.J.

[70] Ibid. Merits, Judgment, ICJ Reports 1896 at para. 268.

[71] Case Concerning the Legality of Use of Force (Yugoslavia v Belgium) 1999 I. C. J. (2 June)

[72] Ibid. ‘Request for the Indication of Provisional Measures’, I.C.J. Reports (2 June 1999) at para. 17. 

[73]S. C. Res. 1160, U.N. SCOR 53rdt Year Resolutions and Decisions of the Security Council 1998, U.N. Doc S/INF/54 (1998).

[74] Jeffrey S. Morton, The Legality of NATO’s Intervention in Yugoslavia in 1999: Implications for the Progressive Development of International Law, 9 ILSA J Int’l & Comp L. 75, (89 – 90) (2002).

[75] Resolution 1160, supra note 59 at 19.

[76]Ibid.

[77] S. C. Res. 1199, U.N. SCOR 53rdt Year Resolutions and Decisions of the Security Council 1998, U.N. Doc S/INF/54 (1998).

[78] Ibid.

[79] S. C. Res. 1203, U.N. SCOR 53rdt Year Resolutions and Decisions of the Security Council 1998, U.N. Doc S/INF/54 (1998).

[80] S. C. Res. 1239, U.N. Doc. S/Res/1239 (14 May 1999).

[81] S. C. Res. 1244, U.N. SCOR 54th  Year Resolutions and Decisions of the Security Council 1999, U.N. Doc S/INF/55 (1999).

[82] Antonio Cassese, Ex iniuria ius oritur: Are We Moving towards International Legitimating of Forcible Humanitarian Countermeasures in the World Community?, 10 EJIL. 23 (24) (1999).

[83] Antonio Cassese, supra note 82 at page 25.

[84] Thomas H. Lee, supra note 15 at page 762.

[85]Ibid at page 761.

[86] Even in Kosovo which is widely recognized as a humanitarian intervention, it was motivated by a desire to repent for failures of nerve in Bosnia, the commitment to maintain solidarity within NATO, public revulsion with Milosevic’s ethnic cleansing, and a determination not to see it repeated in Kosovo.

For more information, see Perritt, supra, note 55 at page KLA/71 – 83.

[87]Elshtain, supra note 54 at page 11.

[88] ibid, at page 4.

[89] Ibid, at page 2.

[90] Ibid, at page 3.

[91] Kosovo Commission - The report, by the Independent International Commission on Kosovo, was not the work of a commission appointed by any governmental or non-governmental organization. The Commission was the initiative of the Prime Minister of Sweden, Mr Göran Persson, who was concerned by the absence of independent analysis of the conflict in Kosovo and any real attempt to research the lessons to be learned from the conflict. The Secretary-General of the United Nations, Mr. Kofi Annan, with whom he informally discussed the idea, endorsed the project.

Prime Minister Persson announced the establishment of the Commission on August 6, 1999. Direct involvement by the Swedish government in the Commission extended only to the invitation to Justice Richard Goldstone of South Africa and to Mr. Carl Tham, Secretary-General of the Olof Palme International Center in Stockholm to act as chairman and co-chairman respectively. The composition of the Commission included eleven members appointed, who were Dr Hanan Ashwari from Palestine1, Professor Grace d’Almeida from Benin, Senator Akiko Domoto from Japan, Professor Richard Falk from the United States of America, Ambassador Oleg Grinevsky from the Russian Federation2, Mr Michael Ignatieff from Canada, Professor Mary Kaldor from the United Kingdom, Professor Martha Minow from the United States of America, Professor Jacques Rupnik from France, Theo Sommer from Germany, Mr Jan Urban from the Czech Republic.The final report was handed over to Mr. Kofi Annan. The report is available at http://www.reliefweb.int/library/documents/thekosovoreport.htm (last visited 15 December 2007).

[92] Louis Henkin, Kosovo and the Law of Humanitarian Intervention, 93 Am. J. Int’l L. 824, (825) (1999).

[93] M2 Presswire

[94] Ruth Wedgwood, supra note 61.

[95] Security Council Rejects Demand for Cessation of Use of Force against Federal Republic of Yugoslavia, UN Press Release SC/6659 (26 March 1999), <http://www.un.org/News/Press/docs/1999.htm? (last visited 18 November 2007).

[96] Some argue that this means legal as well.

[97] S. C. Res. 1244, U.N. SCOR 54th  Year Resolutions and Decisions of the Security Council 1999, U.N. Doc S/INF/55 (1999).

[98] Alain Pellet, Brief Remarks on the Unilateral Use of Force, 11 EJIL 385, (389) (2000).

[99] Walzer, supra note 17 at page 107.

[100] Richard Falk, Legality and Legitimacy: the Quest for Principled Flexibility and Restraint, in Force and Legitimacy in World Politics 33, 35 (David Armstrong et al. Ed., 2005).

[101] Falk, supra note 100 at page 35.

[102] Falk, ibid. at page 34.

[103] Falk, ibid at page 34.

[104] Falk, ibid. at page 34.

[105] Peter Hilpold, Humanitarian Intervention: Is There a Need for a Legal Reappraisal? 12 EJIL 437 (455) (2001).

[106] See generally, note 62.

[107] Simon Chesterman, Just War or Just Peace, 228 (2001).

Letivin’s principle is known as the ‘liberation of Paris principle’ which says that if the people throw flowers, the invasion is lawful; if they throw anything else, the invasion is unlawful.

[108] Chesterman, supra note 107 at page 228.

[109] GA Res 96(I) (1946) at http://www.un.org/documents/ga/res/1/ares1.htm

[110] Simon Chesterman, supra note 107 at page 229.

[111]Simon Chesterman contends that there is no set state practice on humanitarian interventions, note 197 at pages 63 – 86.

[112] Eric Reeves, Humanitarian Intervention in Darfur?, The Boston Globe 17 April 2007

[113] Nadia A. Deans, Tragedy of Humanity: The Issue of Intervention in the Darfur Crisis, 19 Emory Int’l L. Rev. 1653, (1657 – 1668) (2005), Background of Conflict.  

[114] Ibid.

[115] Deans, ibid.

[116] Deans, ibid. at page 1666.

[117] Timeline: Sudan (A Chronology of Key Events), available at http://news.bbc.co.uk/2/hi/middle_east/827425.stm. (last visited 12 December 2007).

[118] Deans, supra at note 113.

[119] Deans, supra at note 113.

[120] S.C. Res. 1706, U.N. Doc. S/Res/1706 (31 August 2006).

[121] Eric Reeves , Watching Genocide, Doing Nothing: The Final Betrayal of Darfur, Dissent Magazine, Fall 2006.

[122] President Bush imposes sanctions on Sudan, <http://www.foxnews.com/story/0,2933,275994,00.html>

(last visited 10 Nov. 2007).

[123] S.C. Res. 1769, U.N. Doc. S/Res/1769 (31 July 2007).

[124] S. C. Res 1769 at 15(italics added) also available at  <www.un.org/documents/> (last visited 20 November 2007).

[125] Eric Reeves, Genocide Without End? The Destruction of Darfur, Dissent Magazine, Summer 2007

[126] President Bush imposes sanctions on Sudan, <http://www.foxnews.com/story/0,2933,275994,00.html>

(last visited 10 Nov. 2007).

[127]  World Service Newshour interview with Gordon Brown on Darfur, <http://www.bbc.co.uk/pressoffice/pressreleases/stories/2007/09_september/16/darfur.shtml>

(last visited 10 Nov. 2007)

[128] Fisher, Jonah, Sudan’s Darfur Deal a Distant Dream, <http://news.bbc.co.uk/2/hi/africa/7063673.stm>

(last visited 10 Nov. 2007).

[129] Ibid.

[130] World Service Newshour interview with Gordon Brown on Darfur, <http://www.bbc.co.uk/pressoffice/pressreleases/stories/2007/09_september/16/darfur.shtml>

(last visited 10 Nov. 2007)

[131] Sudan Survivors Answer your Questions, <http://news.bbc.co.uk/2/hi/africa/7063331.stm>

(last visited 10 Nov. 2007)

[132] Michael Walzer, The Argument about Humanitarian Intervention, Dissent Magazine, Fall 2002.

[133] Ibid.

[134] Constitutive Act of the African Union, Art. 4(h) in Deans, supra note 113 at page 1670.

[135] Refer to - Lubna El-Gendi, Epidemics in Failed States: The Legality of Quarantine and International Intervention (Dec. 21, 2007) (unpublished J.D. seminar paper, Chicago-Kent College of Law) (on file with author).

[136] Falk, supra note 100 at page 50.