By Penelope C. Simons

The following is an excerpt from a discussion paper prepared for the Ploughshares Roundtable on Humanitarian Intervention.

Introduction

The North Atlantic Treaty Organization's 'humanitarian war' in Kosovo last year has once again brought to the fore the longstanding legal, political, and moral debate surrounding the doctrine of humanitarian intervention¹ and in particular the right of states to intervene militarily in another state, without Security Council authorisation, in order to prevent gross violations of fundamental human rights and international humanitarian law.

The Charter regime on the prohibition against the use of force

Forcible intervention in another state is prohibited in international law under Article 2(4) of the United Nations Charter which states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

This general prohibition on the use of force has been confirmed by the International Court of Justice in the Corfu Channel Case (1949) and the Case Concerning Military and Paramilitary Activities in and Against Nicaragua² and is considered to be a rule of jus cogens S that is, a peremptory norm of international law from which no subject of international law may derrogate (O'Connell 2000). The two main exceptions³ to this general prohibition are: the right of a state to use force in self defence or collective self defence under Article 51 of the Charter; and the right of the Security Council under Article 42 to authorise the use of force "to maintain or restore international peace and security."

In legal terms, "international peace and security" has traditionally been narrowly defined as the maintenance of inter-state order. However, the practice of the Security Council can be seen to have modified this concept to include grave humanitarian crises and it is generally recognized among Western legal scholars that the Security Council now has an exclusive right to authorise the use of force for the purpose of preventing or stopping gross and widespread violations of fundamental rights.

Whether or not there is an obligation on the part of the Security Council to take such action is another question. According to Bruno Simma, acts of genocide as defined in the Genocide Convention may trigger an obligation to act to prevent or stop such actions (Simma 1999, p. 2). However, Murphy argues that "[t]o date ... the notion of a 'duty to intervene' by the United Nations, regional organizations, or states does not appear present in international law (Murphy 1996, p. 295). The Secretary-General of the United Nations has suggested that where crimes against humanity are being committed "and peaceful attempts to halt them have been exhausted, the Security Council has a moral [emphasis added] duty to act on behalf of the international community" (Annan 2000, para. 219).

Unilateral or unauthorised humanitarian intervention

Military action taken with the authorisation of the Security Council by a state or group of states against another state to prevent gross and widespread violations of fundamental rights is referred to as collective intervention. Unilateral intervention involving the threat or use of force refers to military action taken by a state without the authorisation of the Security Council. The term unilateral intervention can also refer to unauthorised military intervention by more than one state and, for the purposes of this paper, will be used interchangeably with the term "unauthorised intervention."

Broadly speaking there are two schools of thought on the legality of unilateral or unauthorised humanitarian intervention.⁴ Those who argue in favour of the right to unilateral humanitarian intervention maintain that the evolution of international human rights law and the Charter have had a revolutionary effect on the international legal system. From a "deontological" moral perspective,⁵ it is the individual, and not the state, that lies at the centre of international law. States receive their legitimacy from the will of the people. Hence, sovereignty is not an inherent right of states but, rather, derives from individual rights. Thus, when sovereignty comes into conflict with human rights, the latter must prevail. Fernando Tesón (1997, pp. 173-4), a leading proponent of the legal right to unilateral humanitarian intervention, argues as follows:

The human rights imperative underlies the concepts of state and government and the precepts that are designed to protect them, most prominently article 2(4). The rights of states recognized by international law are meaningful only on the assumption that those states minimally observe individual rights. The United Nations purpose of promoting and protecting human rights found in article 1(3), and by reference in article 2(4) as a qualifying clause to the prohibition of war, has a necessary primacy over the respect for state sovereignty. Force used in defense of fundamental human rights is therefore not a use of force inconsistent with the purposes of the United Nations.

The underlying assumption is that human rights constitute self-evident truth, and a natural law which has primacy over any notion of state sovereignty or positive international law.

On the other hand, those who argue against the right of unilateral humanitarian intervention do so from a positivist perspective. These writers maintain that, based on the accepted rules of treaty interpretation S textual analysis and an examination of the travaux préparatoires of the Charter S Article 2(4) was meant to be a watertight prohibition against the use of force (Simma 1999, pp. 2-3; Murphy 1996, pp. 71-5; Charney 1999, pp. 1234-5),⁶ and any customary right of unilateral intervention which may have existed was extinguished by the United Nations Charter.

These writers argue that certain fundamental human rights⁷ are obligations erga omnes, that is, obligations every state is bound to observe vis-à-vis all other states. However, although each state has the right to take action to ensure respect for these fundamental rights, this does not entail a right to use force (Cassese 1999, p. 26) without Security Council authorisation for such a purpose. Although the purposes of the Charter are to maintain international peace and security, to develop friendly relations among nations based on respect for equal rights and self-determination, and to promote and encourage respect for human rights, some of these writers suggest that "any time that conflict or tension arises between two or more of these values, peace must always constitute the ultimate and prevailing factor" (Cassese 1999, p. 24). Thus while respect for human rights is considered important to a just international legal order, it is argued that neither the Charter, current state practice, nor scholarly opinion conclusively supports the view that there is a right of unilateral, unauthorised intervention to stop or prevent gross and widespread violations of fundamental rights (Murphy 1996, p. 356ff.; Gordon 1996, p. 47; Charney 1999, p. 1247; Builder 1999, p. 161).

Kosovo and the question of the legality of NATO's unauthorised use of force

Following NATO's intervention in Kosovo, a survey of many of the legal scholars writing on the subject suggests that a majority of these writers adhere to the positivist argument which rejects the right of unilateral or unauthorised humanitarian intervention. Thus, while there is an obligation on the part of states to ensure respect for fundamental human rights, there is no legal right to threaten to use or to use force to compel such compliance. Yet, while these writers maintain that the NATO intervention was formally "illegal"  S because NATO did not obtain the required Security Council authorisation before or after the campaign (Simma 1999, p. 11; Cassese 1999, pp. 23-4; Charney 1999, p. 1247; Chinkin 1999, p. 842; Guicherd 1999, p. 19; O'Connell 2000, pp. 88-9) S most also suggest that a purely legal analysis is inadequate to assess the legitimacy of the NATO intervention (Simma 1999, p. 6; Cassese 1999, pp. 25-6; Chinkin 1999, pp. 842-3; Falk 1999, p. 853; Guicherd 1999, p. 19).

According to the Danish Institute Report, the question of legitimacy is determined primarily based on moral or political considerations but may also involve legal considerations which may have important political consequences. Determining whether or not a particular intervention is or was justifiable involves the application of criteria such as:

... the overall respectability and legitimacy of the countries involved in a given action, the procedures and the modalities of the action, whether the action enjoys the explicit or implicit support of a considerable number of countries and international organisations, whether the action is deemed necessary and proportionate etc. (Danish Institute of International Affairs 1999, p. 24).

On this view, in any assessment of a particular instance of humanitarian intervention the legal analysis is only one part. Thus, with respect to NATO's intervention in Kosovo, Richard Falk observes:

It is correct that normal textual readings are on their side, and that the Charter system cannot be legally bypassed in the manner attempted by NATO. Yet it is equally true that to regard textual barriers to humanitarian intervention as decisive in the face of genocidal behavior is politically and morally unacceptable, especially in view of the qualifications imposed on the unconditional claims of sovereignty by the expanded conception of international human rights (Falk 1999, p. 853).

The current recognition of international humanitarian and human rights law as international concerns then, while not providing a legal right to forcefully intervene without Security Council authorisation to prevent gross violations of human rights, may provide a moral right and perhaps even a moral obligation to do so.

In a similar vein, other writers have argued that the legality of an incidence of humanitarian intervention would have to be weighed against a state or group of states compliance with international law in all other aspects during its conduct of the particular humanitarian campaign. As Bruno Simma states:

'humanitarian interventions' involving the threat or use of armed force and undertaken without the mandate of the authorization of the Security Council will, as a matter of principle, remain in breach of international law. But such a general statement cannot be the last word. Rather, in any instance of humanitarian intervention a careful assessment will have to be made of how heavily such illegality weighs against all the circumstances of a particular concrete case, and of the efforts, if any, undertaken by the parties involved to get 'as close to the law' as possible. Such analyses will influence not only the moral but also the legal judgment in such cases (Simma 1999, p. 6).

With respect to NATO's intervention in Kosovo, Simma argued that at the time of writing (the initiation of the bombing campaign), the Alliance made every effort to remain "close to the law" by closely following and linking its efforts to the resolutions of the Security Council and by stating that the action taken was an urgent measure to prevent a larger humanitarian crisis (Simma 1999, p. 22).⁸

However, certain writers have suggested that the requirement of staying "as close to the law as possible" means more than tying actions to Security Council resolutions. First, international law requires that states settle their disputes by peaceful means and that recourse to the use of force be a last resort, once all avenues of peaceful resolution of a situation have been explored.⁹ Except in circumstances of self-defence, the threat or use of force is the domain of the Security Council. According to Falk, NATO did not pursue what he refers to as "flexible diplomacy" which he argues may have allowed the situation in Kosovo to be resolved without recourse to war.¹⁰ For Falk, the fact that NATO failed to exhaust the peaceful means to resolve the situation in Kosovo further undermines the legitimacy of its initiative. He writes:

... a recourse to force should be clearly presented as the consequence of an energetic, good faith attempt via flexible diplomacy to find a peaceful solution. The failure to make this attempt severely compromises the normative status of the NATO initiative, and does so regardless of the legal rationale selected to justify the action. NATO's way of proceeding also weakens the argument for bypassing the United Nations and the restrictive constraints of international law (Falk 1999, p. 855).

Second, where force is used for humanitarian reasons the legal requirements of necessity and proportionality with respect to that use of force are even more important (Falk 1999, p. 855; Chinkin 1999, p. 844). As Ruth Gordon states, "a humanitarian operation must be executed at a level commensurate to the evil it seeks to curtail" (Gordon 1996, p. 45). Thus, a use of force for humanitarian purposes whether it is authorised or unauthorised by the Security Council must comply with the principles of international law applicable in armed conflict and in particular the rules of international humanitarian law.

Under international humanitarian law, civilians and civilian objects may not be directly targeted and all feasible precautions must be taken to prevent civilian deaths.¹¹ Incidental injuries caused to civilians or civilian objects are required to be proportionate to the purpose of the attack (Green 1993, p. 120). Moreover, an attack is deemed indiscriminate which "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (Protocol I, Article 51[5][b]). In addition to strict compliance with the requirements of international humanitarian law, Christine Chinkin argues that human rights law imposes an obligation on the part of the intervenors:

Human rights give rise to responsibilities in states (acting individually and collectively) and in people. These must encompass a duty not to make conditions worse for a threatened population and the obligation to respect the civil, political, economic, social and cultural rights of all civilians (Chinkin 1999, p. 844).

Thus, the means of enforcement chosen must be effective to protect the vulnerable civilian population and must not endanger them or their way of life further.

In the context of Kosovo, NATO's actions were subject to strong criticism in the face of several widely publicized bombings of non-military targets, such as urban telecommunications towers, major and minor bridges, heating plants, electric power stations, water supplies, and, mistakenly, civilian convoys. Reports published by Amnesty International (2000a,b) and Human Rights Watch (2000), which investigated these bombings, note that according to Yugoslavian figures, some 400 to 600 civilians were killed. The reports suggest, respectively, that these killings of civilians could constitute violations of the laws of war or violations of humanitarian law. In addition, the Amnesty report suggests that NATO's "means and methods of attack" including its high altitude bombing policy caused unlawful civilian deaths and that its use of certain weapons such as cluster bombs and depleted uranium ordinance may also "have contributed to causing unlawful deaths" (Amnesty International 2000a, Section 4).

Thus, where a state or group of states acts without the authorisation of the Security Council, the legitimacy of its actions will likely be judged on how closely its conduct follows the principles of international law in every other aspect, as well as whether or not it has moral or political justifications for its actions (although such justifications will affect the determination of legitimacy). A NATO campaign which had adopted a method of warfare which would have protected the vulnerable population (i.e., using ground troops, setting up safe havens and safe corridors) and which, among other things, had not targeted civilian infrastructure may have been seen by its critics as more legitimate although technically illegal.

Is there an emerging legal right of unauthorised intervention?

As discussed above there appears to be agreement among the legal scholars surveyed that the Security Council has the legal right to authorise the use of force to prevent widespread deprivations of internationally recognised human rights. In addition, a majority of writers surveyed appear to agree that unilateral or unauthorised intervention by a state or group of states for such a purpose is currently illegal. However, it is not impossible that a customary rule permitting unauthorised intervention could develop in the future.

Customary laws derive from a general and consistent practice of states which is accompanied by a belief in, and sense of, legal obligation (opinio juris). The requirement of general and consistent practice is not absolute. There are examples of customary law emerging from a single action where there is widespread support for that action. However, as Mary Ellen O'Connell points out, such instances are rare (O'Connell 2000, p. 82, note 150). "Whatever the arguments, international legal rules are not easily changed. One act not in conformity with the rules does not eliminate a legal regime, unless one finds overwhelming support for the change" (O'Connell 2000, p. 82).

Antonio Cassese has argued that the NATO action in Kosovo could lead to the development of a customary rule allowing unilateral humanitarian intervention. Writing at the initiation of NATO's bombing campaign, Cassese states:

... this particular instance of breach of international law may gradually lead to the crystallization of a general rule of international law authorizing armed countermeasures for the exclusive purpose of putting an end to large-scale atrocities amounting to crimes against humanity and constituting a threat to the peace (Cassese 1999, p. 29).

However, writing at a later date, Cassese finds that while "it is premature to maintain that a customary rule has emerged" (Cassese 2000, p. 796), there was a strong and widespread sense among governments that NATO's unauthorised use of force was morally necessary. He argues that this sense of moral obligation or opinio necessitatis would constitute the required psychological element for the formation of a customary law except that it did not yet possess "the requisite elements of generality and non-opposition" (Cassese 2000, p. 798). It is not clear, however, on a positivist analysis whether a sense of moral obligation can be equated with a sense of legal obligation (opinio juris).

While there is a sense that NATO's unauthorised use of force in Kosovo has to varying extents undermined the Charter regime on the use of force with respect to intervention,¹² NATO's campaign in Kosovo has been described among other things as a "study in failed diplomacy" (O'Connell 2000, p. 80, note 136) and a "badly flawed precedent for evaluating future claims to undertake humanitarian intervention without proper UN authorization" (Falk 1999, p. 856). Many of the legal scholars surveyed argue that the NATO intervention should be treated as a single incident which constitutes an illegal intervention and does not lay the ground for an emerging legal right of unilateral intervention in international law (Simma 1999, pp. 14, 20; O'Connell 2000, p. 88; Charney 1999, p. 1247).¹³

With respect to state practice and opinio juris, it is significant that both Russia and China openly criticised the fact that NATO acted without authorisation of the Security Council.¹⁴ In addition, most of the NATO member states who participated in the intervention have maintained that the unauthorised use of force in Kosovo was a singular incident and should not be seen as modifying the use of force regime (O'Connell 2000, p. 83; Guicherd 1999, p. 20; Cassese 2000, p. 794; Builder 1999, p. 181). This is reflected in statements made by several NATO member states, including the US, France, Germany, and Belgium where they insisted

... that they had never stopped attaching crucial importance to the central role of the Security Council. The armed attack was initiated only as an exceptional measure justified by the failure of that body to act. However, as soon as the Security Council was in a position to take the issue into its own hands, they would discontinue any military action (Cassese 2000, p. 794).

The German government, in particular, was strongly opposed to the idea that NATO's use of force without Security Council authorisation would lead to the development of a right to unilateral intervention (Simma 1999, p. 20). In addition, it is significant that neither NATO nor its member states (with the exception of Belgium¹⁵) justified the use of force in Kosovo in legal terms (Charney 1999, pp. 1238-9; Cassese 2000, p. 792; NATO 1999).¹⁶

With respect to the question of a moral right of states to intervene in such situations where the Security Council is unable to act, both the legal literature and the statements of NATO governments reveal a high level of agreement that there was moral and political justification for taking military action (Falk 1999, p. 854; Cassese 1999, p. 25; Guicherd 1999, p. 19).¹⁷ As Cassese observes, "There is a widespread sense that [fundamental human rights] cannot and should not be trampled upon with impunity in any part of the world" (Cassese 1999, p. 6).

In addition, it is significant to note the language used by then Secretary-General of NATO Javier Solana in justifying the intervention. At the time the bombing began, Solana stated that "[t]his military action is intended to support the political aims of the international community.... We must halt the violence and bring an end to the humanitarian catastrophe now unfolding in Kosovo.... We have a moral duty to do so. The responsibility is on our shoulders and we will fulfil it" (Solana 1999, note 49).

However, as Chinkin rightly points out, the moral justifications for use of force in Kosovo are undermined by the fact that ethnic cleansing and other gross violations of fundamental human rights are occurring in many other countries such as Sudan, Afghanistan, and Ethiopia, to name a few. Thus,

... the commitment to human rights that humanitarian intervention supposedly entails does not mean equality of rights worldwide. The human rights of some people are more worth protecting than those of others (Chinkin 1999, p. 847).

The issue of the selectivity of the intervention, notwithstanding, the opinio necessitatis described by Cassese may be evidence of a moral right and perhaps even a moral obligation to act. However, it would appear that the NATO campaign in Kosovo does not reflect the emergence of a customary legal right of unilateral humanitarian intervention. This suggests that a state or group of states is still legally obliged to gain Security Council authorisation for any use of force that is not for the purpose of collective self-defense (O'Connell 2000, pp. 88-9; Cassese 1999, p. 25; Charney 1999, p. 1247; Guicherd 1999, p. 29).

Dr. Penelope Simons is a Director and Vice-President of both Lawyers for Social Responsibility and The Simons Foundation.

¹ The debate about humanitarian intervention can be traced as far back as the seventeenth century to the works of Alberico Gentili and Hugo Grotius. See for example Theodor Meron 1991, "Common Rights of Mankind in Gentili, Grotius and Suarez," AJIL 85, 110-116; see also Oliver Ramsbotham 1997, "Humanitarian Intervention 1990-1995: A Need to Reconceptualize?" Review of International Studies 23, 445-468, at 446.

² Military and Paramilitary Activities (Nic. V. U.S.), 1986 I.C.J. 14, (Merits). In this case, article 2(4) was regarded as a codification of customary international law.

³ See Murphy 1996 for a discussion of possible exceptions with respect to rescue of nationals and humanitarian aid drops.

⁴ Simon Duke (1994, p. 33) takes a slightly different approach by arguing that there are "three broad approaches to the issue of the legality of humanitarian intervention: the restrictionists, who argue that humanitarian intervention is a violation of territorial integrity and political independence of the state; those closer to the natural law tradition, who argue that such action is permissible under the UN Charter since the UN has made an explicit commitment to the protection of human rights and such use of force falls below any threat to the territorial integrity of the state; and finally, those who accept humanitarian intervention provided it is conducted in a collective manner that expresses the will of the international community."

⁵ On this view, the moral motives of the actor are relevant and acting on principle takes precedence over the consequences of the action. According to Thomas Donaldson (1993, p. 137), "it is common to define deontological theory as 'agent-centred,' i.e., as placing emphasis on an agent's moral motives, and as allowing principles and precepts to override the consideration of consequences."

⁶ Tesón (1997, p. 149ff) argues, on the other hand, that "conventional methods of treaty interpretation, when applied to article 2(4), are incapable of yielding a solution to the hard case of humanitarian intervention." Thus, neither a textual reading of Article 2(4) nor an examination of the travaux préparatoires of the Charter is determinative of whether or not there is a right to humanitarian intervention.

⁷ These would include but not be limited to the right to life, the prohibitions against torture, genocide, slavery, and the principle of non-discrimination.

⁸ See also the UK House of Commons Select Committee on Foreign Affairs Fourth Report (printed May 23, 2000),(hereafter, the AUK Fourth Report@) para. 134 http://www.publications.parliament.uk/pa/cm199900/cmselect/cmfaff/28/2813.htm#a34 . The Committee comes to the very dubious conclusion "that, faced with the threat of veto in the Security Council by Russia and China, the NATO allies did all they could to make the military intervention in Kosovo as compliant with the tenets of international law as possible."

⁹ See UN Charter, Articles 2(3) and 33, 36, 37, 39, and 42.

¹⁰ But see, for example, Cassese who argues that "peaceful means of settling disputes commensurate to the unfolding of the crisis had been tried and exhausted by the various countries concerned, through the negotiations promoted by states comprising the Contact Group for the Former Yugoslavia, and later Rambouillet and at Paris" (Cassese 1999, p. 28).

¹¹ See the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Articles 48, Article 51(2), and 57.

¹² See for example O'Connell 2000, p. 82.

¹³ See also Guicherd (1999, p. 29) who agrees that there is no legal right to unauthorised humanitarian intervention but argues that while "the political and moral consensus that intervention is sometimes necessary to prevent human rights violations on a major scale has not been formalised into a set of rule of international law[, i]t is now urgent that this consensus should be transformed into law."

¹⁴ Guicherd points out that both Russia's and China's voting statements on Resolution 1203 make it clear that "they opposed the use of force in Kosovo, whatever the scenario" (Guicherd 1999, p. 29).

¹⁵ "As regards the intervention, the Kingdom of Belgium takes the view that the Security Council's resolutions which I have just cited provide an unchallengeable basis for the armed intervention.... But we need to go further and develop the idea of armed humanitarian intervention. NATO, and the Kingdom of Belgium in particular, felt obliged to intervene to forestall an ongoing humanitarian catastrophe, acknowledged in Security Council resolutions. To safeguard what? To safeguard, Mr. President, essential values which also rank as jus cogens.... Thus, NATO intervened to protect fundamental values enshrined in the jus cogens and to prevent an impending catastrophe recognized as such by the Security Council." Legality of Use of Force (Yugo v. Belg.), Uncorrected Translation of Oral pleadings of Belgium (May 10, 1999) http://www.icj-cij.org/cijwww/cdocket/cyall/cyall_cr/cyall_cybe_ccr9915_19990510.html  cited in O'Connell 2000, p. 81, note 144. See also Charney 1999, p. 1239 at note 28.

¹⁶ Cassese also points out that a few states have subsequently discussed the Kosovo intervention in legal terms. "In particular, the Netherlands, has pointed out that 'the Charter is not the only source of international law', thus implying that general norms may exist, or be in a nascent state, outside the Charter. The same state has noted in particular that 'a gradual shift [is] occurring in international law', whereby 'respect for human rights [is] more mandatory [than in the Charter] and respect for sovereignty less absolute'. As a result there now exists a 'rule, now generally accepted in international law, that no sovereign state has the right to terrorise its citizens.'" Cassese notes that the statements of certain state delegates in the Security Council reveal this position may be shared by a few other states and in particular Canada (Cassese 2000, p. 795). However, Abraham Sofaer argues that the US and NATO did not justify the intervention in legal terms because "they are uninterested in attempting to demonstrate that the circumstances satisfy particular artificial categories deemed exclusive despite overwhelming political consensus and international practice to the contrary" (Sofaer 2000, p. 20).

¹⁷ See also the UK Fourth Report which states at para. 137, "we conclude that NATO's military action, if of dubious legality in the current state of international law, was justified on moral grounds."

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