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Updated: 06-Dec-2000 NATO Review

Web edition
Vol. 47 - No. 3
Autumn 1999
p. 24-27

Should NATO take the lead in formulating a doctrine on humanitarian intervention?

Ove Bring,
Professor of International Law
Swedish Defence College and Stockholm University

NATO's intervention in Kosovo aimed to reverse the Serb campaign of ethnic cleansing in the province and ensure the safe return of Kosovar Albanians. Fundamental principles of international relations - state sovereignty, non-use of force, and respect for human rights - were brought into conflict with each other, sparking off considerable public debate. The author argues that there is an urgent need for a doctrine on humanitarian intervention to be formulated, building on the emerging international norm that gives precedence to the protection of human rights over sovereignty in certain circumstances, and that NATO should take the lead on this.


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:

  • an exceptional deviation from international law
  • an action based upon a new interpretation of the UN Charter in line with modern international law
  • an attempted shift of international law to a new position where, in humanitarian crises, the sovereignty of states has to yield to the protection of peoples.

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 humanitarian intervention.

An emerging international norm

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.

"Uniting for Peace" resolution

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.

A precedent for intervention


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 intervention.

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.

Setting strict conditions for intervention

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:

  • it has to be a case of gross human rights violations amounting to crimes against humanity;
  • all available peaceful settlement procedures must have been exhausted;
    u the Security Council must be unable or unwilling to stop the crimes against humanity;
  • the government of the state where the atrocities take place must be unable or unwilling to rectify the situation;
  • the decision to take military action could be made by a regional organisation covered by Chapter VIII of the UN Charter, using the "Uniting for Peace" precedent to seek approval by the General Assembly as soon as possible; or the decision could be taken directly by a two-thirds majority in the General Assembly in accordance with the "Uniting for Peace" procedure;
  • the use of force must be proportional to the humanitarian issue at hand and in accordance with international humanitarian law of armed conflict;
  • the purpose of the humanitarian intervention must be strictly limited to ending the atrocities and building a new order of security for people in the country in question.

NATO members should take the lead

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.

Footnotes:

  1. Chapter I: Purposes and Principles, Article 2
  2. Chapter VII: Action with respect to threats to the peace, breaches of the peace, and acts of aggression, Articles 39-51
  3. An independent group of 28 leaders set up in 1992 by Willy Brandt, as a sequel to the Brandt Commission, co-chaired by then Swedish Prime Minister Ingvar Carlsson and Shridath Ramphal of Guyana, then Secretary General of the Commonwealth.
  4. Chapter VIII: Regional Arrangements, Articles 52-54
  5. Michael Reisman & Myres McDougal in 1973, Richard Lillich in 1993, and Antonio Cassese in 1999.