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
Based on this scenario,
this paper argues that an intervention on grounds of humanity in
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
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
|
Jus ad bellum (whether resort to force is justified) |
Jus in (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
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,
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
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
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
[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
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
V
Darfur, a region of
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,
The intervention in
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
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
·
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 (
·
Thirdly, the Security
Council has been unable to reach a consensus until recently when it deployed a
peacekeeping mission to
·
Fourthly, the use of
force is proportional to stopping the conflict.
·
Finally, the strongest
motive is humanitarian even though
VI
The use of force in
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
[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
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]
[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.
[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
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.
[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
[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
[70] Ibid. Merits, Judgment, ICJ Reports 1896 at para. 268.
[71] Case Concerning
the Legality of Use of Force (
[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
[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
[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
[113] Nadia A. Deans, Tragedy of Humanity: The Issue of
Intervention in the
[114] Ibid.
[115] Deans, ibid.
[116] Deans, ibid. at page 1666.
[117] Timeline:
[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
[122] President Bush imposes
sanctions on
(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
[126] President Bush imposes
sanctions on
(last
visited 10 Nov. 2007).
[127] World Service Newshour interview with Gordon Brown on
(last visited 10 Nov. 2007)
[128] Fisher,
(last visited 10 Nov. 2007).
[129] Ibid.
[130] World Service Newshour
interview with Gordon Brown on
(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
[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.