|Updated: 06-Dec-2000||NATO Review|
Should NATO take the lead in formulating a doctrine on humanitarian intervention?
Having been forced out of Kosovo by the Serbs, Kosovar Albanian refugees in the northern Albanian border town of Kukes are transported to safety further south by NATO peacekeepers on 25 May.
(AP photo - 46Kb)
During the Allied bombing campaign against strategic targets in the Federal
Republic of Yugoslavia, there was a conspicuous absence of legal argumentation
in defence of the NATO position from NATO itself. When a group of international
law students from Stockholm University visited NATO headquarters in Brussels
in April 1999, they were told that there was no consolidated NATO position,
but that it was up to the governments and capitals of the participating
member states to assess the international law situation and produce the
justification(s) they saw fit.
From a political and legal point of view, this was not satisfactory at
the time, nor is it now - when the NATO campaign has achieved its goal
of establishing an international presence in Kosovo for the protection
of human rights in the province. NATO as an organisation, or its members
acting jointly, should - for the benefit of the international community
- formulate the rationale behind this collective action, which probably
will go down in history as a case of humanitarian intervention.
Any group of states that detracts from the fundamental non-use of force
principle of the United Nations Charter(1), will find
itself expected to explain its position legally. The question is whether
NATO's action should be looked upon as illegal, or as:
It is in the interest of NATO (and, I submit, of the international community
as a whole) that the illegality view should not prevail. In whatever way
the NATO action may be explained, as deviating from the law, as conforming
to the law, or as progressively developing the law, the international
community has so far not received a clear answer. By producing such an
answer NATO could influence the legal situation. It has already contributed
in practice, but it still needs to articulate the principle behind it.
"Quiet diplomacy" is an unfortunate method in this case, since
it risks giving the impression that NATO itself perceives its action as
illegal, and - although it successfully fought what was termed a "just
war" - is not prepared to fight the intellectual battle for a more
human rights-focused international order that harbours the concept of
Most international lawyers would agree that the current law of the UN
Charter does not accommodate the bombing of Yugoslavia, since the action
was neither based on a Security Council decision under Chapter VII(2)
of the UN Charter, nor pursued in collective self-defence under Article
51 of the Charter - the only two justifications for use of force that
are currently available under international law.
Nevertheless, many of these same lawyers would also agree that there
is a trend in today's international community towards a better balance
between the security of states, on the one hand, and the security of people,
on the other (as the Carlsson-Ramphal Commission on Global Governance(3)
also recommended in its report Our Global Neighbourhood in 1995).
UN Secretary-General Kofi Annan, addressing the Commission on Human Rights in Geneva on 7 April, expresses the "universal sense of outrage" provoked by the Yugoslav regime's repression of Kosovar Albanians.
(Belga photo - 35Kb)
Recent statements by UN Secretary-General Kofi Annan also support this
view. Addressing the Commission on Human Rights in Geneva on 7 April -
in the early days of NATO's bombing campaign - and referring to the "universal
sense of outrage" provoked by the repression of Kosovar Albanians
by Milosevic's regime, he stated: "Emerging slowly, but I believe
surely, is an international norm against the violent repression of minorities
that will and must take precedence over concerns of sovereignty",
and that the UN Charter should "never [be] the source of comfort
or justification" for "those guilty of gross and shocking violations
of human rights".
The issue of protecting human rights is growing steadily in importance.
But there is a need to concretise the meaning of that protection. The
main security threats in today's world are not to be found in the relations
between states, but concern threats from governments towards their own
citizens. International law is slowly adapting to these developments by
establishing new global and regional structures for peacekeeping and peace-enforcement.
The enunciation of new doctrines for the use of these structures would
be helpful in the progressive development of the law.
The veto power of the five permanent members of the Security Council
has been questioned in its present form. During the Korean War (1950-53),
the then Western majority of the United Nations did not accept that the
Security Council could be blocked out of action and influence by the use
of the veto by the Soviet Union, at a time when peace was being threatened
or broken. The so-called "Uniting for Peace" resolution, adopted
by the UN General Assembly in November 1950, allowed a qualified majority
of the Assembly to assume responsibility for the maintenance of international
peace and security, whenever the Security Council was unable or unwilling
to do so.
During the Kosovo crisis - when both Russia and China threatened to veto
any enabling Council resolution - NATO could have appealed to the General
Assembly under the "Uniting for Peace" mechanism for approval
of its armed intervention. Since the Kosovo debate did not generate any
North-South division (a Russian anti-NATO proposal was rejected in the
Security Council on 26 March 1999 by, among others, Argentina, Bahrain,
Brazil, Gabon, Gambia and Malaysia), a qualified majority supporting and
legitimising NATO action might well have been possible.
Law is often referred to as "a process", and international
law as "a world social process" that encompasses concrete state
practice, other governmental positions, group expectations, and value
demands from different participants in the world community, including
intergovernmental organisations (IGOs) and non-governmental (NGOs). The
outcome of this process is influenced by the authority and persuasive
arguments of the participants. Upcoming sessions of the UN General Assembly
and other international fora will provide states with the opportunity
to either accept or reject attempts to legitimise or criticise the Kosovo
intervention. In the interest of the progressive development of international
law, NATO and/or its member states should take part in this process by
enunciating a doctrine on humanitarian intervention, in an objective attempt
to make sense of the past for the benefit of the future.
UN Security Council members approve the peace plan for Kosovo on 10 June, with only China abstaining.
(Reuters photo - 61Kb)
NATO officials may so far have been reluctant to consider NATO as a regional
organisation under Chapter VIII(4) of the UN Charter,
out of concern that such a categorisation would imply additional obligations
in the UN context. This concern is unfounded. Chapter VIII codifies the
legitimacy and usefulness of regional security organisations and arrangements,
but imposes no obligations other than those that already lie upon states
under the UN Charter (inter alia, under Chapter VII). NATO, as an organisation
for collective self-defence, should accept itself as a regional security
organisation in the collective security sense of Chapter VIII, which could
be used as a platform to define its Kosovo action as a case of humanitarian
In this way, though not authorised by the Security Council as required
by Article 53 of Chapter VIII, the Kosovo action could be described as
a precedent for collective (not unilateral) humanitarian intervention
conducted by a regional organisation after a process of collective decision-making.
This precedent could also be characterised as one of non-passivity in
humanitarian crises - a reflection of the need for international law to
be related to international morality. A population in immediate danger
of genocide should not be left alone to face its fate.
The General Assembly "Friendly Relations Declaration" (1970)
reaffirmed "a duty to cooperate" as part of the Charter system.
A modern interpretation of this principle should oblige states to do their
utmost - including armed action, as a last resort - to avert a humanitarian
crisis. A "duty" to intervene with armed force in such crises
("un devoir d´ingérence", as French Foreign Minister
Dumas argued in relation to the Iraqi Kurds in 1991) is hardly conceivable.
But a "duty to act", even in situations when the Security Council
is veto-blocked, should make itself felt in the international community.
An option for regional organisations to intervene when there is the political
will and military capacity to do so, should be part of modern international
law. Whenever necessary, the "Uniting for Peace" precedent should
be used to put the matter before the General Assembly to mobilise UN approval
outside the Security Council framework.
As a number of legal scholars(5) have made clear,
strict conditions for any forcible intervention in the absence of Security
Council authorisation need to be set out in an emerging doctrine on the
subject. The following requirements should be included:
There is a ground-swell of opinion in the international community in
favour of intervention in cases of gross and systematic violations of
human rights and fundamental freedoms. Such acts cannot go unchallenged
50 years after the adoption of the Universal Declaration on Human Rights.
The formulation of a doctrine on humanitarian intervention would be the desirable legal outcome of the Kosovo crisis and would represent a huge step forward in the international order. NATO countries should take the lead in this worthy endeavour by setting out the issues involved and bringing them to the appropriate international fora.