PLS 364 INTERNATIONAL ORGANIZATION AND COOPERATION xxx
READINGS FOR Lecture 18. International Law and the Use of Force
1- "CLINTON'S REMARKS IN DEFENSE OF MILITARY INTERVENTION IN BALKANS," The New York Times, May 14, 1999. #1
2- UNITED NATIONS LAW REPORTS, Unofficial Reports Concerning Legal Matters in the United Nations, Volume 33 Number 9, 1 May 1999. #UNLR
4- UNA-USA, NATO, the UN, and the Use of Force Policy Roundtables [UNA-USA organized two Policy Roundtables on the subject in March 1999, informed by specially commissioned papers.] #RT
May 14, 1999
WASHINGTON -- Following are excerpts from President Clinton's speech to a veterans' group today on Kosovo, as recorded by The New York Times.
Now from the outset of this conflict, we and our allies have been very clear about what Belgrade must do to end it. The central imperative is this: The Kosovars must be able to return home and live in safety. For this to happen, the Serb forces must leave. Partial withdrawals can only mean continued civil wars with the Kosovar insurgents. There must also be an international security force with NATO at its core. Without that force, after all they've been through, the Kosovars simply won't go home. Their requirements are neither arbitrary nor overreaching. These things we have said are simply what is necessary to make peace work.
There are those who say Europe and its North American allies have no business intervening in the ethnic conflicts of the Balkans. They are the inevitable result, these conflicts, according to some, of centuries-old animosities, which were unleashed by the end of the cold war restraints in Yugoslavia and elsewhere.
I myself have been guilty of saying that on an occasion or two and I regret it now, more than I can say. For I have spent a great deal of time in these last six years reading the real history of the Balkans and the truth is that a lot of what passes for common wisdom in this area is a gross oversimplification and misreading of history.
The truth is that for centuries these people have lived together in the Balkans and southeastern Europe with greater or lesser degree of tensions, but often without anything approaching the intolerable conditions and conflicts that exist today. And we do no favors to ourselves or to the rest of the world when we justify looking away from this kind of slaughter by oversimplifying and conveniently in our own way demonizing the whole Balkans by saying that these people are simply incapable of civilized behavior with one another.
Second, there is, people say, O.K., maybe it's not inevitable but look, there are a lot of ethnic problems in the world. Russia has dealt with Chechnya and you've got . . .
all these ethnic problems everywhere, and religious problems, you've got, that's what the Middle East is about. You've got Northern Ireland. You've got the horrible, horrible genocide in Rwanda. You've got the, the war now between Eritrea and Ethiopia.
They say oh, we've got all these problems. And, and therefore, why do you care about this? I say to them, THERE IS A HUGE DIFFERENCE BETWEEN PEOPLE WHO CAN'T RESOLVE THEIR PROBLEMS PEACEFULLY AND FIGHT ABOUT IT AND PEOPLE WHO RESORT TO SYSTEMATIC ETHNIC CLEANSING AND SLAUGHTER of people because of their religious or ethnic background.
There is a difference. There is a difference. And that is the difference that NATO, that our allies have tried to recognize and act on. I believe that is what we saw in Bosnia and Kosovo. I think the only thing we have seen that really rivals that rooted in ethnic or religious destruction in the, this decade is what happened in Rwanda and I regret very much that the world community was not organized and able to act quickly there as well.
Bringing the Kosovars home is a moral issue. But it is a very practical, strategic issue in a world where the future will be threatened by the growth of terrorist groups, the easy spread of weapons of mass destruction, the use of technology, including the Internet for people to learn how to make bombs and wreck countries.
This is also a significant security issue, particularly because of Kosovo's location. It is just as much a security issue for us as ending the war in Bosnia was. Though we are working hard with the international community to sustain them, a million or more permanent Kosovar refugees could destabilize Albania, Macedonia, the wider region, become a fertile ground for radicalism and vengeance that would consume southeastern Europe. And if Europe were overwhelmed with that, you know we would have to then come in and help them.
Far better for us all to work together to be firm, to be resolute, to be determined to resolve this now. If the European Community and its American and Canadian allies were to turn away from and therefore reward ethnic cleansing in the Balkans, all we would do is to create for ourselves an environment where this sort of practice were sanctioned by other people who found it convenient to build their own political power and therefore we would be creating a world of trouble for Europe and for the United States in the years ahead.
I'd just like to make one more point about this in terms of the history of the Balkans. As long as people have existed, there have been problems among people who were different from one another and there probably always will be. But you do not have systematic slaughter in an effort to eradicate the religion, the culture, the heritage, the very record of presence of the people in any area, unless some politician thinks it is in his interest to foment that sort of hatred. That's how these things happen. People with organized, political and military power decide it is in their interest that they get something out of convincing the people they control or they influence to go kill other people and uproot them and dehumanize them.
I don't believe that the Serb people in their souls are any better, I mean any worse, than we are. Do you? Do you believe when a little baby is born into a certain ethnic or racial group that somehow they, they have some poison in there that has to at some point when they grow up, turn into some vast flame of destruction?
You think the Germans would have perpetrated the Holocaust on their own without Hitler? Was there something in the history of the German race that made them do this? No.
We've got to get straight about this. This is something political leaders do.
And if people make decisions to do these kinds of things, other people can make decisions to stop them and if the resources are properly arrayed, it can be done. And that is exactly what we intend to do. . . .
Nobody claims that we can make everyone love each other overnight. That is not required.
But what is required are basic norms of civilized conduct.
Until Serbia accepts these conditions, we will continue to grind down its war machine. . . .
But the cycle of violence has to end. The children of the Balkans, all of them, deserve the chance to grow up without fear. The Serbs simply must free themselves of the notion that their neighbors must be their enemies. The real enemy is a poisonous hatred unleashed by cynical leaders based on a distorted view of what constitutes real national greatness. . . .
We stand ready, therefore, to embrace Serbia as a part of a new Europe if the people of Serbia are willing to invest and embrace that kind of future, if they are ready to build a Serbia and a Yugoslavia that is democratic and respects the rights and dignity of all people, if they are ready to join a world where people reach across the divides to find their common humanity and their common prosperity.
This is the right vision and the right course. It is not only the morally right thing for America; it is the right thing for our security interests over the long run. . . .
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UNITED NATIONS LAW REPORTS
Volume 33 1 May 1999 Number 9
1. Special Supplement: opinions on the legality of NATO's attack against the FRY.
Views of Anthony D'Amato, Jordan Paust, Paul Conlon, Paul Rutkus, Frédéric Mégret and others including Secretary-General Kofi Annan.
2. International Court of Justice, Federal Republic of Yugoslavia v. USA et al.
FRY charges 10 NATO members with violating 7 instruments including Charter.
1. SPECIAL SUPPLEMENT: opinions on the legality of NATO's attack against the FRY.
A statement issued on 25 March by the European Council, through the Permanent Representative of Germany, to the UN, S/1999/342, included: "It cannot be permitted that, in the middle of Europe, the predominant population of Kosovo is collectively deprived of its rights and subjected to grave human rights abuses. We, the countries of the European Union, are under a moral obligation to ensure that indiscriminate behaviour and violence, which became tangible in the massacre at Racak in January 1999, are not repeated. We have a duty to ensure the return to their homes of the hundreds of thousands of refugees and displaced persons. Aggression must not be rewarded. An aggressor must know that he will have to pay a high price. That is the lesson to be learnt from the twentieth century."
Also on 25 March the Commonwealth of Independent States issued a joint statement, S/1999/343, which commenced: "The decision by the North Atlantic Treaty Organization (NATO) to use force against a sovereign State - the Federal Republic of Yugoslavia - which was taken without the participation of the United Nations Security Council, is contrary to the norms of international law, establishes a precedent for disregarding the Security Council as the supreme body bearing primary responsibility for the maintenance of peace and international security, and also undermines all efforts to achieve a peaceful settlement of the conflict in the region."
NATO Secretary-General Javier Solana on 27 March stated that, "NATO military actions are intended to support the political aims of the international community. All Allies stand united in this action and in our determination to bring a halt to violence in Kosovo and to prevent further humanitarian catastrophe." S/1999/360.
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INTERNATIONAL LAW AND KOSOVO by Anthony D'Amato Leighton Professor of Law Northwestern University
The United Nations Charter does not monopolize the use of transboundary military force. Article 51 (not relevant in the Kosovo situation) allows the use of force in self-defense. The provision of the Charter that applies to the bombing of the Federal Republic of Yugoslavia is Article 2(4). It prohibits the use of transboundary military force (1) against the territorial integrity of a state, (2) against the political independence of a state, or (3) in any manner inconsistent with the purposes of the United Nations. Article 2(4) therefore opens a small window for the use of force that falls outside of these three qualifications.
Let us take the easiest one first. The NATO bombing is not directed against the political independence of the Federal Republic of Yugoslavia (clause 2), for there is no attempt to take over its government; indeed, NATO keeps trying to negotiate with its government.
Now let us look at clause 1: territorial integrity. If the phrase instead had been simply "the territory of a state," then of course the bombing would be in violation, because the bombing is directed against the territory of Yugoslavia. But "territorial integrity" is quite different; it has acquired a meaning in treaties and diplomatic history over the past 150 years. An exigesis of this phrase in treaty and diplomatic history is contained in chapter 3 of ANTHONY D'AMATO, INTERNATIONAL LAW: PROCESS AND PROSPECT 56-72 (rev. ed. 1995).
The NATO bombing would violate the "territorial integrity" of Yugoslavia if is directed at permanently taking away a portion of Yugoslavia's territory.
Thus, one important legal constraint on NATO's action is that its goal cannot be political independence for Kosovo. President Clinton and Prime Minister Blair have recently spoken in terms of independence for Kosovo, and there is nothing to stop Milosevic from giving up Kosovo voluntarily. But taking Kosovo away by force would, in my opinion, clearly violate clause 1 of Article 2(4).
Another legal constraint upon NATO's action is clause 3: the action cannot be inconsistent with the purposes of the United Nations. The purposes relevant to the present discussion can be found in Article 1, paragraph 2: "promoting and encouraging respect for human rights."
To come within this language, a transboundary use of force should merit the characterization of "humanitarian intervention." The Israeli raid on the Entebbe airport, and the United States' interventions in Grenada, Panama, and Somalia, all qualify as humanitarian interventions. They fit in with a long line of humanitarian interventions starting with the intervention of France, Great Britain, and Russia in 1827 in the Ottoman Empire, and the major-power interventions in the Balkans in 1804-13 and 1912-13. The customary international law generated by these interventions that is also consistent with Article 2(4) of the Charter suggest the following criteria:
(1) The people in the target state (here, Kosovo) must be in severe jeopardy from their own government.
(2) The projected damage caused by the intervention cannot be disproportionate to the jeopardy ("the cure can't be worse than the disease").
(3) The intervening state must obey the humanitarian laws of war.
(4) The use of force must end when the humanitarian goal is accomplished.
At the time of this writing (18 April 1999), the NATO intervention appears to fall within these categories and therefore can so far be justified under international law.
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Professor D'Amato is correct that Article 2 (4) of the United Nations Charter does not prohibit all threats or uses of armed force and that only three types of force are prohibited by Article 2 (4). NATO's initial use of force was not designed "against the territorial integrity" of the FRY, but we may see an eventual loss of FRY control of Kosovo in the interest of peace and security in the region and in response to genocidal human rights violations and war crimes. On balance, NATO's use of military force is serving of the general purposes of the United Nations listed in Article 1 of the Charter, which include the preserving of peace, security, self-determination of peoples, and respect for and observance of human rights.
Article 2 (7) of the Charter does not prohibit intervention when matters are of international concern. Genocidal "cleansing" of ethnic and religious groups within FRY is not simplistically merely the internal "affair of" the FRY, nor is it a matter essentially within its domestic jurisdiction within the meaning of Article 2 (7). Genocide, crimes against humanity, other human rights violations, and violations of Geneva law (e.g., Articles 1, 3, 13-16 and 23-24 (applying even to attacks on or treatment of co-nationals), and 146-147 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War) are of international concern and matters over which there is universal jurisdiction and responsibility. Further, the laws of war apply even to the undeclared armed conflict between NATO forces and the FRY.
Article 52 of the U.N. Charter recognizes the permissibility of actions by regional arrangements for "the maintenance of international peace and security as are appropriate for regional action, provided such...activities are consistent with the Purposes and Principles of the United Nations." NATO is such a regional arrangement and NATO actions in the FRY are consistent with the serving of peace, security, self-determination, and human rights. Moreover, such a regional competence is partly enhanced by Charter-based duties of every state to take joint and separate action for the universal respect for and observance of human rights. The Genocide Convention also recognizes that "international cooperation is required" "to liberate mankind" from genocide and sets forth the duty of State Parties "to prevent and punish" genocide.
Article 53 of the Charter does prohibit regional organizations from engaging in "enforcement action" "under [the] authority" of the Security Council "without the authorization of the Security Council," but permissible regional organization actions under Article 52 are not always "enforcement action" "under the authority" of the Security Council. For example, when the Security Council is veto-deadlocked with respect to its ability to make "decisions" on "enforcement action," permissible regional military actions under Article 52 are neither "enforcement action" nor "under the authority of" the Security Council, at least until the Council can act and actually decide on measures under Chapter VII of the Charter. When the Council is veto-deadlocked, it is unable to decide on measures "to give effect to its decisions" (within Articles 41-42) or to decide on "action required to carry out" its decisions (within Article 48). From the above, it is evident that NATO's action is permissible under Article 52 and is not impermissible under Article 53 of the Charter.
By majority vote, the Security Council should also be able to provide "authorization" for regional action even though, or especially because, such action is not "enforcement action under its authority." This impliedly occurred when the Council voted 12-3 (Namibia, Peoples' Republic of China, Russia) to defeat a draft resolution attempting to restrain NATO authority. It may be that such authorizations are based in new patterns of normative expectation and "subsequent practice," and thus provide new or clarified meaning concerning the U.N. Charter.
As the 1970 Declaration on Principles of International Law (G.A. Res. 2625) affirms, self-determination assistance is also permissible under the Charter. The Declaration notes: "[e]very State has the duty to refrain from any forcible action which deprives peoples...of their right to self-determination" and "[i]n their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter." The 1984 resolution of the General Assembly concerning the illegal regime in South Africa (G.A. Res. 39/2) also affirmed the permissibility of self-determination assistance while "recognizing the legitimacy of...[the] struggle [of the people of South Africa] to eliminate apartheid and establish a society based on majority rule with equal participation by all the people of South Africa" and urged "all Governments and organizations...to assist the oppressed people of South Africa in their legitimate struggle for national liberation," while also condemning "the South African racist regime for...persisting with the further entrenchment of apartheid, a system declared a crime against humanity and a threat to international peace and security." As the 1970 Declaration adds, the territorial integrity of states can be disrupted and changed if they are not "conducting themselves in compliance with the principle of equal rights and self-determination of peoples."
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by Dr. Paul Conlon Former UN Security Council Official
An undeniable rupture between legitimacy and the trend of international law has now occurred marking a further step in the dissolution of an international governance system based on the UN Charter. The caveat that this is a one-off departure from otherwise respected norms is little helpful. The chances that it remains just that are actually greater if NATO's efforts fail - hardly a pleasing prospect. A constructive and proactive response to this dilemma should start by realising that this development is not an accident but is preprogammed in today's international governance system and is bound to occur again.
The construction arrived at in 1945 sought to make the UN system the main, if not unique, forum for the generation, adjudication and application of international law and, within that system, placed the Security Council in a hierarchically prioritised position at the top (or centre) of it. The Charter was ahead of general international law at the time but the opposite is now true, the latter having unmistakably moved in the direction of emphasising erga omnes State obligations based on notions of human rights and proper standards of behaviour for States in regard to their own subjects. This trend has developed more in fora outside the UN system than in it, and even within the UN system, the Council has been the ultimate straggler, not the leader.
The Council is today the most archaic, underdeveloped, poorly resourced international governance body and its practice is least influenced by such trends in general international law. Under such circumstances, it cannot possibly function as the brains or authority for coherent international governance and even its ability to supply legitimacy on a rubber-stamp basis no longer meets the realistic expectations of western countries. This discrepancy appeared in the early nineties when it was a question of enforcing sanctions against Yugoslavia. It took the form of a dichotomy between legitimacy (the Council) and effectiveness (the west). Now a similar contradiction has reached the legislative level.
What is needed is an international governance charter that incorporates these trends in modern international law explicitly. Since the rationale of States is now more "ethnic" than at any time in the last two centuries, preventing State aggression against its own population for "ethnic" reasons should be one of its main concerns.
In the face of grossly unacceptable State behaviour in this regard, the central collective security organ must go beyond being authorised to take appropriate action to being obligated to do so. The Security Council's discretionary privileges and arbitrary behaviour under the present system would have to be scrapped in favour of more rational, modern and legally acceptable procedures. This latter would as a minimum require the abolition of single-member vetoes as well as finding a more appropriate way of mediating power and legitimacy than to have permanent and non-permanent members. Finally, such an organ would need some more inspiring strategy for enforcing of its own will than declaring it to be the "responsibility of States."
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LICENSING OF ARMED FORCE: NATO's Attack upon Yugoslavia
by Paul Rutkus(1)
On the 29th of April, 1999 the Federal Republic of Yugoslavia ("FRY") instituted proceedings before the International Court of Justice seeking an order that NATO cease the use of force. Should the FRY succeed, NATO may not be required to discontinue but only modify its command, control and application of armed force.
The current use of armed force by NATO in the FRY bypassed two Security Council mechanisms of approval. The first available means to obtain a license for the use of armed force is through a Security Council resolution directly authorizing the action. Much has already been written about NATO's inability to obtain such a license and will not be explored further in this article. The second means which forms the basis of this opinion, is peculiar only to the former Yugoslavia and may only be invoked where serious violations of international humanitarian law are concerned. This second mechanism is available in direct support of, and is subordinate to, the mandate of the International Criminal Tribunal for the Former Yugoslavia ("ICTY").
Jurisdiction of the Tribunal
The territory of the former Yugoslavia is unique; it is the only section of the world's surface which is currently under the direct criminal jurisdiction of a United Nations judicial body, the ICTY. Unlike the International Criminal Tribunal for Rwanda, the ICTY has no statutory sunset on its temporal jurisdiction. Absent another resolution of the Security Council, which would require unanimity among the permanent five, the ICTY may continue to have temporal jurisdiction over this territory indefinitely.
The Delegation of Chapter VII Authority
By resolutions 808 and 827 the United Nations Security Council unanimously established the ICTY pursuant to Chapter VII of the United Nations Charter (Charter). In so doing, the Council delegated a portion of its Chapter VII authority for the achievement of specific judicial objectives in relation to the territory of the former Yugoslavia. These judicial objectives are outlined in the ICTY Statute ("Statute")which is integral to Security Council Resolution 827. Included in Chapter VII of the Charter is Article 42, the authority to use armed force.(2)
In addition to the Statute, the Security Council further delegated the articulation of this authority in the form of an enabling provision which empowers -- within certain parameters -- the tribunal to author its own subordinate legislation. Article 15 of the Statute provides that Rules of Procedure and Evidence for the protection of victims, witnesses and other appropriate matters may be adopted by the judges of the ICTY.
The Prescribed Bounds of the Delegation
Article 18 of the Statute assigns the Prosecutor the power to question individuals, to collect evidence and to conduct on-site investigations. Prosecutor Arbour was denied all of these prerogatives by the Yugoslavian government's refusal to admit her onto the territory of Kosovo. However, Article 18 only provides that the Prosecutor may, as appropriate, seek the assistance of the "State authorities concerned". This begs the question, are "the State authorities concerned", from which the Prosecutor may seek assistance, solely the government of Yugoslavia or can it include the nations of NATO? Since the term "State authorities concerned" is not defined within the Statute, it is not readily apparent whether the Prosecutor may seek the assistance of NATO nations on the strength Article 18 alone.
Article 29 of the Statute articulates that "States" shall cooperate with the prosecutor and shall comply with any order issued by a Trial Chamber including, but not limited to, the production of evidence and arrests. While this author is unaware of any Trial chamber order directing the Yugoslav authorities to admit Prosecutor Arbour to the alleged crime scenes in Kosovo, the actions of the Yugoslav authorities constitute a failure to cooperate. Moreover, the presence of publicly known indictees in Kosovo and elsewhere in the FRY indicates a failure of the FRY to comply with arrest orders issued by a Trial Chamber.
The language in Article 29 differs from that of Article 18. The term "States" without the modifiers "the concerned" is used. If the language of Article 18 excludes NATO countries, the language of Article 29 likely includes the nations of NATO. If this is the case, then NATO countries are permitted to cooperate with the Prosecutor and to implement trial chamber orders, where necessary employing armed force against the FRY to execute these.
Rule 40, as articulated by the judges of the ICTY, further amplifies these Article 29 powers. In case of urgency, the Prosecutor may "request any State" to provisionally arrest a suspect, seize physical evidence and take all necessary measures to prevent the escape of a suspect or an accused, injury to, or intimidation of, a victim or witness, or the destruction of evidence. The State concerned shall comply forthwith. This rule is consistent with the interpretation that "any state" asked may assist and that the "state concerned" must assist the tribunal.
Under ICTY direction, NATO may serve Tribunal orders and warrants in the territory of the FRY without transgressing the Charter. By this strategy, NATO would utilise the legal authority previously delegated by Resolution 827 to arrest indictees, secure crime scenes and guard witnesses as well as victims. Conforming to this approach would mark the evolution from regional vigilante Justice to the deputation of an ad hoc international constabulary.
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KOSOVO : DIFFERENT COURSES IN RECONCILING LEGALITY AND LEGITIMACY
by Frédéric Mégret Allocataire de Recherches Centre d'Études sur le Droit International (CEDIN) Université de Paris I
Although NATO officials have been keen to base the strikes on the Yugoslav Republic on positive law, there has been a lingering suggestion that even if the strikes are illegal, their moral legitimacy is such as to render the legal problem irrelevant. This is obviously unsatisfying, not least because of the role of legality in defining legitimacy. An urgent challenge, therefore, is to seek to reconcile the two.
As has become apparent over the past weeks, there are several often incompatible ways this can be done, which all involve different approaches not only to jus ad bellum, but to what international law is.
The first and most-favored course for NATO has been to place itself firmly within the bounds of the UN Charter, and to defy the obvious by stretching the meaning of words so that the strikes can be made to fit in extremis with collective security provisions. It should by now clear to most internationalists that this is a dead-end.
The second is to say that there is more to jus ad bellum than the Charter, and in particular that there is some higher norm that can override Chapter VII. The most obvious lead at this junction is to claim that a right to military intervention exists despite the absence of Security council authorization whenever the absence of intervention would lead to massive violations of international humanitarian law. This is a necessary but insufficient step, however, short of any consistent precedent to sustain that interpretation. True, there is a tendency in the Security Council to consider that internal violations of international humanitarian law may prompt it into action; but it has never been suggested that the Security Council has thus set a precedent which can be invoked when states are acting without its authorization.
There is, nonetheless, a third possibility which is that the strikes are by themselves changing the content of international law. The idea that a "violation" is really no violation at all but a reformulation of the law raises the theoretical difficulty that NATO conduct is setting the very standards by which its legality will be judged. If it is to work convincingly, this argument must be integrated into a broader theory of how systemic change can be accounted for in positive international law. Since the element of repetition which is the mark of a homogeneous practice is lacking by hypothesis, only time will tell whether the strikes were truly a "defining moment", rather than merely a violation. By not basing their case more explicitly on humanitarian intervention, however, the allies are discrediting the idea that they are operating on the basis of a corresponding shared opinio juris. Furthermore, by failing to specify what they might regard as the operative conditions of validity of a humanitarian intervention, they are preventing the emergence of a yardstick by which their own conduct could be judged, thus reinforcing the idea that they are not abiding by any legal standard at all. Because of lack of unanimous support for the NATO strikes, the "systemic change" argument will be a difficult one to make: it will not help if the allies themselves systematically undermine it.
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HARVARD LAW SCHOOL PANEL DISCUSSION
A panel discussion at the Harvard Law School on 23 April was entitled "International Law and Ethnic Conflict: Can International Law Help Kosovo?" Columbia Law Professor Lori Damrosch noted that justification is one of law's most important roles but that the US Government is reluctant to hear that humanitarian intervention is NATO's justification. She added that "we are all craving something," namely, access to the correspondence among those who determined that NATO should launch its attack.
Cornell Law Professor David Wippman said he did not believe we now have a norm allowing circumvention of the Security Council but that "there is a loosening." He noted the lack of explanation to the public while some have argued that humanitarian intervention justifies the NATO attack. He pointed to the use of force by the Economic Community of Western Africa in Liberia and Sierra Leone with Council approval coming after the event.
Kiel University Professor Jost Delbrück made the point that German soldiers, in action outside their own country for the first time since World War II, cannot be left without a legal argument to justify what they are doing with NATO in regard to Kosovo. He pointed out that the UN Charter recognizes the possibility of states of emergency like self-defense where action is necessary without Security Council authorization, while arguing that this justification did not fit the cases of Bosnia, Kosovo or Rwanda. Although the Kosovo situation was not envisaged when the Charter was drafted, since 1990 the Council has been ready to accept that internal disasters are of concern to the international community, he said.
From this Delbrück concluded that the notion of collective emergency help is not outlawed under the Charter, especially when human rights norms rising to the level of jus cogens are at stake. However, he would like to interpret this possibility restrictively, confining it to collective action by regional organizations in order to ensure public discourse and avoid unilateral action. He declared this to be not new law but interpretation of existing law. He pronounced NATO's actions "objectively illegal, but there are grounds, . . . not legal but justified." Finally, he stated that it would be good if the UN would reorganize so as to allow this sort of action explicitly, with clear criteria.
Harvard University Professor Stanley Hoffman declared international law to be "a nuisance for NATO," since UN Charter "Article 53 says what it says." On intervention, he "would like to see a new norm that considers not only genocide but ethnic cleansing." Speaking of ethnic and religious conflict, he said, "The law needs to be adapted so it can take care of what will probably be the number one issue on the world stage." Posing the question "what can one do short of massive force," he stated that, "We need to devise a ladder of intervention."
Antonia Chayes of the Conflict Management Group made the statement that the "reason why we have not seen a legal justification is that there is none," adding that what she had read thus far "is pretty thin."
ASIL FLASH INSIGHT
The American Society of International Law (ASIL), which "does not take positions on substantive issues," had produced one of its series of "flash insights" on 25 March, written by Frederic L. Kirgis and stating: "If the NATO action is designed to coerce the Yugoslav government to accept the allied peace plan for Kosovo, it would require Security Council authorization under Article 53. On the other hand, if the NATO action is designed to ensure humanitarian relief for the people of Kosovo or merely to help them to repel armed aggression, one could argue that Security Council authorization may not be necessary." Professor Kirgis conceded that the "two possible arguments for intervention without Security Council authorization . . . both require an extension of recognized principles beyond the limits heretofore applied to them."
An article by Bruno Simma, Professor of International and Community European Law, Institut für Internationales Recht - Völkerrecht, Ludwig-Maximilians-Universität, entitled NATO, the UN and the Use of Force: Legal Aspects, published in the European Journal of International Law, is at http://www.ejil.org/journal/Vol10/No1/ab1.html. Professor Simma argues that acting outside the law where there seems to be no other choice can set a bad precedent and therefore any distinctive factors present should be spelled out so as to minimize precedential significance.
A Comment on Professor Simma's article by Judge Antonio Cassese of the International Criminal Tribunal for the Former Yugoslavia is at the same web site. Judge Cassese's title is Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community? Cassese is not satisfied to merely state that NATO's actions, which he like Simma calls illegal, should not be taken as a precedent. He tends to believe that there may be a new customary rule of international law emerging, permitting the use of force by a group of states against large-scale atrocities when the Security Council cannot act because of the threat of veto.
The UN Secretary-General, Kofi Annan, on 7 April told the UN Commission on Human Rights that, "Though we have no independent observers on the ground, the signs are that [genocide] may be happening, once again, once more, in Kosovo. Every time, though, the world says 'never again'. And yet it happens. The vicious and systematic campaign of 'ethnic cleansing' conducted by the Serbian authorities in Kosovo appears to have one aim: to expel or kill as many ethnic Albanians as possible, thereby denying a people their most basic rights to life, liberty and security. The result is a humanitarian disaster throughout the entire region. We all deeply regret that the international community, despite months of diplomatic efforts, failed to prevent this disaster. What gives me hope -- and should give every future 'ethnic cleanser' and every State-backed architect of mass murder pause -- is that a universal sense of outrage has been provoked. 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 State sovereignty." SG/SM/6949-HR/CN/898.
The Secretary-General's Spokesman was asked at his press briefing on 9 April whether the Secretary-General on 7 April had been "talking about a norm that would allow the use of force by any regional organization without Security Council approval." The Spokesman replied: "You know his position on that. Under the Charter, the use of force should be sanctioned by the Security Council. He's talking about the evolution of international law and also public attitudes, that increasingly the feeling is that certain standards need to be met, and that a government can't hide behind the barriers of sovereignty while breaching these standards. We still don't have an international police force, and we're dealing with these internal crises at the moment on an ad hoc basis."
Thanks are expressed to those who have been ready and willing to articulate the views set forth above. The law in this area is not clear. The NATO attack was launched without regard to UN Charter Article 53, unless the phrase "authorization of the Security Council" in that article can be interpreted as referring to adopted decisions making the findings prerequisite to explicit authorization of force followed by support for such force from twelve members not including two with the veto.
Proceeding without explicit authorization of force in the face of a threat of veto deprives the veto of its force and might be called "veto nullification." The danger is that a new norm of veto nullification may now be well on its way to being established. In looking ahead, one can imagine a resolution being offered in the Council to end Iraqi sanctions. Very likely, the UK and US would be the only negative voters. Russia and France, not to mention others eager to do business with Iraq, might well point to the Kosovo experience and say that the new Kosovo norm allows them to ignore the double veto. What goes around may come around.
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INTERNATIONAL COURT OF JUSTICE,
FEDERAL REPUBLIC OF YUGOSLAVIA v. USA ET AL.
On 29 April the Federal Republic of Yugoslavia (FRY) instituted proceedings before the International Court of Justice (ICJ) against the US, UK, France, Germany, Italy, Netherlands, Belgium, Canada, Portugal and Spain. The FRY maintains that those States have committed "acts by which [they] have violated [their] international obligation[s] not to use force against another State, not to intervene in [that State's] internal affairs" and "not to violate [its] sovereignty"; "the obligation to protect the civilian population and civilian objects in wartime, [and] to protect the environment; the obligation relating to free navigation on international rivers"; the obligation "regarding the fundamental rights and freedoms; and the obligation[s] not to use prohibited weapons [and] not to deliberately inflict conditions of life calculated to cause the physical destruction of a national group".
The FRY requested the Court to adjudge and declare, among other things, that the 10 States against which it has instituted proceedings are "responsible for the vio-lation of the above[-mentioned] interna-tional obligations", that they are "obliged to stop immediately" that violation and that they are "obliged to provide compensation for the damage done".
According to the FRY, the above-men-tioned States, "together with the Govern-ments of other member States of NATO, took part in the acts of use of force against the FRY". Yugoslavia asserts that both military and civilian targets have come under attack during the bombings, causing many casualties ("about 1,000 civilians, including 19 children, were killed and more than 4,500 sustained serious inju-ries"), enormous damage to schools, hos-pitals, radio and television stations, cul-tural monuments and places of worship, the destruction of a large number of brid-ges, roads and railway lines, as well as oil refineries and chemical plants, resulting in serious health and environmental damage.
As the legal basis for its claims, the FRY cites the obligations not to use force against another State and not to intervene in its internal affairs, the provisions of the Geneva Convention of 1949 and of the Additional Protocol No. 1 of 1977 on the Protection of Civilians and Civilian Ob-jects in Time of War, the 1948 Convention on Free Navigation on the Danube, the International Covenant on Civil and Politi-cal Rights, the 1966 International Coven-ant on Economic, Social and Cultural Rights, and the Convention on the Preven-tion and Punishment of the Crime of Genocide. Yugoslavia further points out that the activities of the States involved are "contrary to Article 53, paragraph 1, of the Charter of the United Nations".
The FRY also filed on 29 April, in each of the cases, a request for interim measures of protection (provisional measures), asking the Court to order the States involved to "cease immediately [their] acts of use of force" and to "refrain from any act of threat or use of force against the Federal Republic of Yugoslavia". It maintains that if the proposed measures are not adopted, there will be "new losses of human life, further physical and mental harm inflicted on the population of the FRY, further destruction of civilian targets, heavy envi-ronmental pollution and further physical destruction of the people of Yugoslavia". At a meeting on 29 April, the ICJ decided that hearings on provisional measures would open on10 May. Vice-President Weeramantry will exercise the functions of the presidency in all 10 cases, President Schwebel being a national of one of the Parties. ICJ Press Communique 99/1-ICJ/569.
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THE FATAL FLAWS UNDERLYING NATO'S INTERVENTION IN YUGOSLAVIA
USI, New Delhi, April 6, 1999
THE FATAL FLAWS UNDERLYING NATO'S INTERVENTION IN YUGOSLAVIA By Lt Gen Satish Nambiar (Retd.)
(First Force Commander and Head of Mission of the United Nations Forces deployed in the former Yugoslavia 03 Mar92 to 02 Mar 93. Former Deputy Chief of Staff, Indian Army. Currently, Director of the United Services Institution of India.)
My year long experience as the Force Commander and Head of Mission of the United Nations Forces deployed in the former Yugoslavia has given me an understanding of the fatal flaws of US/NATO policies in the troubled region. It was obvious to most people following events in the Balkans since the beginning of the decade, and particularly after the fighting that resulted in the emergence of Slovenia, Croatia, Bosnia-Herzegovina and the former Yugoslav Republic of Macedonia, that Kosovo was a 'powder keg' waiting to explode. The West appears to have learnt all the wrong lessons from the previous wars and applied it to Kosovo.
(1) Portraying the Serbs as evil and everybody else as good was not only counterproductive but also dishonest. According to my experience all sides were guilty but only the Serbs would admit that they were no angels while the others would insist that they were. With 28, 000 forces under me and with constant contacts with UNHCR and the International Red Cross officials, we did not witness any genocide beyond killings and massacres on all sides that are typical of such conflict conditions. I believe none of my successors and their forces saw anything on the scale claimed by the media.
(2) It was obvious to me that if Slovenians, Croatians and Bosniaks had the right to secede from Yugoslavia, then the Serbs of Croatia and Bosnia had an equal right to secede. The experience of partitions in Ireland and India has not be pleasant but in the Yugoslavia case, the state had already been taken apart anyway. It made little sense to me that if multiethnic Yugoslavia was not tenable that multiethnic Bosnia could be made tenable. The former internal boundaries of Yugoslavia which had no validity under international law should have been redrawn when it was taken apart by the West, just as it was in the case of Ireland in 1921 and Punjab and Bengal in India in 1947. Failure to acknowledge this has led to the problem of Kosovo as an integral part of Serbia.
(3) It is ironic that the Dayton Agreement on Bosnia was not fundamentally different from the Lisbon Plan drawn up by Portuguese Foreign Minister Cuteliero and British representative Lord Carrington to which all three sides had agreed before any killings had taken place, or even the Vance-Owen Plan which Karadzic was willing to sign. One of the main problems was that there was an unwillingness on the part of the American administration to concede that Serbs had legitimate grievances and rights. I recall State Department official George Kenny turning up like all other American officials, spewing condemnations of the Serbs for aggression and genocide. I offered to give him an escort and to go see for himself that none of what he proclaimed was true. He accepted my offer and thereafter he made a radical turnaround.. Other Americans continued to see and hear what they wanted to see and hear from one side, while ignoring the other side. Such behaviour does not produce peace but more conflict.
(4) I felt that Yugoslavia was a media-generated tragedy. The Western media sees international crises in black and white, sensationalizing incidents for public consumption. From what I can see now, all Serbs have been driven out of Croatia and the Muslim-Croat Federation, I believe almost 850,000 of them. And yet the focus is on 500,000 Albanians (at last count) who have been driven out of Kosovo. Western policies have led to an ethnically pure Greater Croatia, and an ethnically pure Muslim statelet in Bosnia. Therefore, why not an ethnically pure Serbia? Failure to address these double standards has led to the current one.
As I watched the ugly tragedy unfold in the case of Kosovo while visiting the US in early to mid March 1999, I could see the same pattern emerging. In my experience with similar situations in India in such places as Kashmir, Punjab, Assam, Nagaland, and elsewhere, it is the essential strategy of those ethnic groups who wish to secede to provoke the state authorities. Killings of policemen is usually a standard operating procedure by terrorists since that usually invites overwhelming state retaliation, just as I am sure it does in the United States.
I do not believe the Belgrade government had prior intention of driving out all Albanians from Kosovo. It may have decided to implement Washington's own "Krajina Plan" only if NATO bombed, or these expulsions could be spontaneous acts of revenge and retaliation by Serb forces in the field because of the bombing. The OSCE Monitors were not doing too badly, and the Yugoslav Government had, after all, indicated its willingness to abide by nearly all the provisions of the Rambouillet "Agreement" on aspects like cease-fire, greater autonomy to the Albanians, and so on. But they insisted that the status of Kosovo as part of Serbia was not negotiable, and they would not agree to station NATO forces on the soil of Yugoslavia. This is precisely what India would have done under the same circumstances. It was the West that proceeded to escalate the situation into the current senseless bombing campaign that smacks more of hurt egos, and revenge and retaliation. NATO's massive bombing intended to terrorize Serbia into submission appears no different from the morality of actions of Serb forces in Kosovo.
Ultimatums were issued to Yugoslavia that unless the terms of an agreement drawn up at Rambouillet were signed, NATO would undertake bombing. Ultimatums do not constitute diplomacy. They are acts of war. The Albanians of Kosovo who want independence, were coaxed and cajoled into putting their signatures to a document motivated with the hope of NATO bombing of Serbs and independence later. With this signature, NATO assumed all the legal and moral authority to undertake military operations against a country that had, at worst, been harsh on its own people. On 24th March 1999, NATO launched attacks with cruise missiles and bombs, on Yugoslavia, a sovereign state, a founding member of the United Nations and the Non Aligned Movement; and against a people who were at the forefront of the fight against Nazi Germany and other fascist forces during World War Two. I consider these current actions unbecoming of great powers.
It is appropriate to touch on the humanitarian dimension for it is the innocent who are being subjected to displacement, pain and misery. Unfortunately, this is the tragic and inevitable outcome of all such situations of civil war, insurgencies, rebel movements, and terrorist activity. History is replete with examples of such suffering; whether it be the American Civil War, Northern Ireland, the Basque movement in Spain, Chechnya, Angola, Cambodia, and so many other cases; the indiscriminate bombing of civilian centres during World War Two; Hiroshima and Nagasaki; Vietnam. The list is endless. I feel that this tragedy could have been prevented if NATO's ego and credibility had not been given the highest priority instead of the genuine grievances of Serbs in addition to Albanians.
Notwithstanding all that one hears and sees on CNN and BBC, and other Western agencies, and in the daily briefings of the NATO authorities, the blame for the humanitarian crisis that has arisen cannot be placed at the door of the Yugoslav authorities alone. The responsibility rests mainly at NATO's doors. In fact, if I am to go by my own experience as the First Force Commander and Head of Mission of the United Nations forces in the former Yugoslavia, from March 1992 to March 1993, handling operations in Croatia, Bosnia-Herzegovina, and Macedonia, I would say that reports put out in the electronic media are largely responsible for provoking this tragedy.
Where does all this leave the international community which for the record does not comprise of the US, the West and its newfound Muslim allies? The portents for the future, at least in the short term, are bleak indeed. The United Nations has been made totally redundant, ineffective, and impotent. The Western world, led by the USA, will lay down the moral values that the rest of the world must adhere to; it does not matter that they themselves do not adhere to the same values when it does not suit them. National sovereignty and territorial integrity have no sanctity. And finally, secessionist movements, which often start with terrorist activity, will get greater encouragement. One can only hope that good sense will prevail, hopefully sooner rather than later.
Lt. General Satish Nambiar Director, USI, New Delhi 6 April 1999
*x* #Return to TopNATO, THE UN, AND THE USE OF FORCE POLICY ROUNDTABLES
The Kosovo crisis has pushed to the front burner a core issue of international order: Whether the authority to undertake use of military force across borders is reserved exclusively to the United Nations Security Council, or may be assumed by regionally based organizations like the North Atlantic Treaty Organization. This question is central to proposals for a new "strategic concept" for NATO that have been advanced for adoption at the organization's 50th anniversary summit meeting in April 1999. With support from the Ploughshares Fund and the German Information Office, UNA-USA organized two Policy Roundtables on the subject in March 1999, informed by specially commissioned papers.
The Policy Issue by Jeffrey Laurenti,
UNA-USA Paper by Ivo H. Daalder,
Brookings Institution Paper by Bruno Simma, Professor of Law, University of Munich
New York Roundtable Rapporteur's Report by Bettina Clark
Washington Roundtable Rapporeur's Report by Timothy O'Loughlin
New York, 11 March 1999 United Nations Association of the United States of America
Washington, 12 March 1999 United Nations Association of the United States of America Carnegie Endowment for International Peace
#Return to TopTHE POLICY ISSUE
Jeffrey Laurenti Executive Director, Policy Studies, UNA-USA
In 1998, the long-predicted explosion in Kosovo presented the international community with profound dilemmas. The Belgrade regime responded to a violent guerrilla movement with the harsh repressiveness for which it had long earned notoriety. The U.N. Security Council agreed on performance standards to demand of the Yugoslav government, and on concerted pressures short of force to prod it toward moderation. A number of governments became convinced that only superior military force would alter Belgrade's behavior-and when key Security Council members opposed Council authorization of military strikes to punish Yugoslavia for noncompliance, NATO member states agreed to have their organization on its own undertake (or at least threaten) military action to obtain compliance with the Security Council demands. The threat was at least temporarily successful in pressing Belgrade to back off, a success that encouraged NATO states to hope that the threat of force can help them impose a compromise on unreconciled Serbs and Albanians alike.
Does the Kosovo "precedent" point the way to standard practice for the future? NATO member states will celebrate the organization's 50th anniversary at a Washington summit meeting in April 1999, and its member states are considering adoption of a Declaration at the gathering that would assert a significantly expanded mandate for the alliance in the 21st century. The scope of that "strategic concept" is now under debate in European and North American foreign ministries. NATO had already, at its 1994 Brussels summit, declared itself ready to cooperate with the United Nations in "peacekeeping and other operations under the authority of the U.N. Security Council." The issues raised in the current debate, and not yet resolved, relate to potential NATO military operations outside its members' territory without Security Council authorization.
As U.N. Secretary-General Kofi Annan has frequently observed, there are conflict situations in which diplomacy must be backed by force to be effective. Most circles involved in the debate perceive a need-some call it an obligation--to locate a legitimate and capable center for unleashing military force in the name of "the international community." More than half a century ago, the world community defined as a cornerstone of a secure and peaceful world the principle-solemnly ratified by nations in the U.N. Charter-that "armed force shall not be used, save in the common interest." The question of who defines that common interest, and how the use of force in international politics is authorized and exercised, is a central issue in the NATO debate today. Many insist that only the U.N. Security Council has the authority to summon military force against another state except in self-defense. Many others say that any multilateral grouping, such as NATO (or the Economic Council of West African States in its subregion), can identify the common interest in satisfaction of that principle-though some aver the Council should at least have already identified the international interest, as it had done on Kosovo. And some doubt the validity of the principle at all, insisting that military force is as normal and realistic a tool of advancing national interests as it was in 1939, and needs no paper "legitimation."
The hard dilemmas in Kosovo have made it a particularly illuminating test case-and, as lawyers often observe, hard cases make bad law. Constitutional strict constructionists might be distressed that NATO's response to Kosovo's alleged security threat is creating apparent facts of an enlarged mandate, without any amendment to its constitution having been debated and ratified by its members' parliaments. After all, the North Atlantic Treaty of 1949 created a carefully circumscribed, uni-dimensional security organization, complementing the multidimensional security framework of the United Nations. Its members obligated themselves to join in the collective self- defense of any one of them subject to "armed attack" from outside, pursuant to Article 51 of the United Nations Charter, until the U.N. Security Council could take the measures necessary to restore peace and security.
The new security realities since 1990 appear to have rendered so narrow a mission at least somewhat obsolete. With no hostility between East and West, NATO's highly developed military capabilities were no longer inherently suspect as narrowly partisan and could be applied to broader interests. The Brussels summit affirmed NATO's moving beyond its strictly defensive orientation, and pointed the way toward a more active role as military intervenor for both peacekeeping and enforcement-roles it played in collaboration with the U.N. during the Bosnian civil war and in place of the U.N. (though with Security Council authorization) since Dayton.
This has dovetailed nicely with calls for greater reliance on regional organizations in managing conflict situations, which seemed to enjoy wide assent for most of the 1990s. Nonetheless, there has been growing disquiet in various quarters about the apparent preference of some leading countries to curtail reliance on the United Nations and to foster "regional solutions" to crises. Critics assert that this "regional" emphasis fortuitously allows Western powers to shed responsibility for conflict management in Africa and Asia while shifting responsibility for problems in Europe (most notably in the Balkans) to NATO. American security planners have a high comfort level with NATO. By contrast, many Europeans-not all of them in Paris--have continued to insist on at least a fig-leaf of United Nations authorization prior to NATO military action (except in self- defense). Others dismiss such a preoccupation as narrowly legalistic.
Indeed, some see the NATO mandate debate as one of legalism versus pragmatism-or, indeed, legalistic hair-splitting versus a humanitarian imperative. These point to Kosovo killings as evidence of the moral (and mortal) folly of literal adherence to the NATO treaty's Article 5- subordinating it to the U.N. Security Council, and leaving it authority to act autonomously only under the self-defense terms of Article 51 of the U.N. Charter. Paralysis of the Security Council on use of force, they say, must not hold back those with the will and power to act, at least when basic requirements of international humanitarian law are being violated; and NATO is the one multilateral force that is militarily capable. By contrast, they regretfully observe, the Security Council and the U.N. Secretariat have proved themselves incapable of competently using force, hamstrung by timidity and pacifism, as they demonstrated in the "failed" peacekeeping operation in Bosnia.
Others assert that abandonment of the Security Council's asserted monopoly on determining the lawful use of force against others, except in self-defense, could put the world community on a slippery slope of competing claims of "rights" to intervene-with the potential consequence of escalating hostilities rather than resolving them. Some see a disquieting historical precedent for alliance self-authorization for use of force in the Warsaw Pact's intervention in Czechoslovakia in 1968 (an intervention that was, to be sure, directed within its own membership). Some warn that such fragmentation of lawful authority on use of force could prompt the emergence of counter- alliances among those fearful of high-handed interventionism by an overweening Western alliance. If the U.N. has too many inhibitions about use of force, these worry, NATO under U.S. pressure may have too few.
Another issue under debate for the NATO summit related to regional autonomy on the use of force-and, indeed, on the geographic limits of a regional group's asserted right to wield force--is a proposed mandate for NATO to use its resources to combat proliferation of weapons of mass destruction. This last proposal has a curious mirror image in a proposal advanced by the new Schröder government in Germany: that NATO consider revising its war-fighting doctrine to renounce the first use of nuclear weapons--the one category of weapons of mass destruction not yet under a total international ban. Although harshly received in Washington, the German proposal has already won Canada's public embrace, with stirrings of interest elsewhere.
Certainly, the notion of a NATO mandate to combat weapons of mass destruction raises questions about where the alliance might deploy force, since, aside from its nuclear-armed members, no countries in NATO's own region have programs for development of weapons of mass destruction. Moreover, the weapons proliferation issue again raises the question of linkage to the Security Council, since the international treaties creating the regimes controlling these weapons all provide for the Council to enforce them.
Indeed, the unexpected surfacing of the nuclear issue is sharpening the alliance debate on what makes NATO "relevant" in the post-cold war world. To build support among reluctant European allies for the proposals to expand NATO's powers, some advocates warn that failure to adopt them will lead the U.S. Congress to view NATO as irrelevant. (U.N. champions note ruefully that any proposals to strengthen United Nations capabilities in these fields are assailed by the same members of Congress as a sinister power grab.) But some NATO supporters worry that the expansion of the organization's powers might undercut public and political support for it among some Europeans, who express suspicion that its agenda is largely driven by Washington's political interests. And maintenance of a nuclear deterrence strategy when there is no enemy to deter strikes growing numbers of Europeans as dangerously irrelevant.
The debate over NATO's strategic concept is sensitive because, in some formulations, it suggests a turn in the U.N./NATO relationship from mutual reinforcement to fundamental competition. Under such a scenario, the organization in danger of sliding into irrelevance seems to be not NATO but the United Nations. In a political variant of free-market competition, the U.N. Security Council risks disappearing as a serious security body as the genuinely powerful prefer to work through a more convenient instrument. All that the Security Council can offer is "legitimacy," in the view of some Western governments-and NATO may provide the desired multilateral cover, with less obstruction. Moreover, some assert, success on the ground is more compelling in the real world than paper legitimacy. In this view of reality, Council members must ponder how they can keep Washington engaged when they backtrack on Iraq and do no more than importune Belgrade on Kosovo.
While the issues are profound for international order, they have attracted relatively little attention in the public debate. There has been little discussion in nongovernmental policy circles, even less in the press, and virtually none at all in parliaments. The United Nations Association of the United States (UNA-USA), like the Carnegie Endowment for International Peace, believes that the need to broaden the debate on NATO's mandate and its relation to the United Nations is urgent.
UNA-USA has convened two roundtables to help build public awareness of the NATO/U.N. dilemmas involved in the debate on NATO's mandate in advance of the 50th anniversary summit. UNA hosted one roundtable on these questions in New York on March 11, and the other-cosponsored by the Carnegie Endowment--in Washington on March 12.
Two papers of different perspectives were commissioned to inform the discussion at both symposia, one by Ivo Daalder of the Brookings Institution and the other by Bruno Simma, a German scholar and foreign ministry advisor. Both of the newly commissioned papers and a rapporteur's report on each forum will be promptly posted on UNA-USA's web site, shared electronically and by mail with policy influentials and the media, and circulated among relevant governments and nongovernmental networks.
The Ploughshares Fund and the German Information Office have underwritten much of the cost of the roundtables.
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NATO, THE UN, AND THE USE OF FORCE*
IVO H. DAALDER
The debate surrounding NATO's evolution from a collective defense alliance to an organization primarily concerned with managing crises centers around three questions:
1. Under what circumstances should NATO threaten use of force? The traditional criterionself-defense against armed attack on any member's home territory (Article 5 of the North Atlantic Treaty)is too narrow. There is no doubt that NATO could embark on missions using force, if its members so desired, to confront crises or threats that do not directly affect allied territory but that may have implications for important national or humanitarian interests, (e.g., confronting arms proliferation or genocide)--though to what extent remains disputed within the alliance. The possibility for joint military action in a non-Article 5 context should not be conditioned on unanimous consent. An alliance that provides rapid and effective responses to crises in and outside allied territory, even if action is taken by a subset of allies, is preferable to one that conditions action on potentially unattainable unanimous support.
2. How far should NATO's writ extend geographically? The American vision of a NATO acting globally is not widely shared by the European allies. For most of the Europeans, NATO's fundamental purpose is to provide security in and for Europe. They have come to accept that NATO's role extends into the Balkans--but this is about as far as it should go; for them, NATO remains a regional organization whose role is confined to the Euro-Atlantic region.
3. What is the legal basis for the threat or use of force by NATO in any of these situations? Two competing perspectives have emerged--a French perspective that gives the U.N. Security Council the primary role in authorizing NATO's use of force; and a U.S. perspective that NATO has the right to use force whenever the interests of its members so require. The NATO allies remain divided on whether Kosovo set a precedent for the future. Limiting NATO to actions that have been approved by the Security Council could subject the alliance to an effective veto by China or Russia. For this reason, NATO should not bind itself to a position that bars action in non-Article 5 contingencies if U.N. approval is not forthcoming. Still, the threat or use of force ought to have a legal basis sound enough to be acceptable both to the NATO public and to the vast majority of the international community--e.g., based on the U.N. Charter, the Helsinki Final Act, or the 1990 Charter of Paris.
Throughout much of its fifty year existence, the question of when and how the North Atlantic Treaty Organization could or would use force was not in dispute. As a military alliance formed to provide for the collective defense of its members, NATO sought to deter and, if necessary, defend against an attack by the Soviet Union and its Warsaw Pact allies against the territory of one or more of its members. In case of such an attack, NATO's military response against Warsaw Pact territory would have been both swift and automatic. The justification for this response would have come from the collective defense commitment enshrined in Article 5 of the North Atlantic Treaty, which is itself based on the right of individual and collective self-defense guaranteed by Article 51 of the United Nations Charter.
It was only in the 1990s, as first the major threat to NATO disappeared with the demise of the Soviet Union and then the Alliance's purpose and missions began to shift, that the question of when and how to use force for purposes other than collective defense emerged. NATO members began to consider whether the Alliance ought to have a role in managing the multiple crises that were erupting in post-Soviet Europe as a result of the collapse of communist and Soviet imperial rule. Increasingly, the Alliance was seen not just as an instrument to defend allied territory against deliberate attack, but also as an organization that possessed the necessary military capacity to assist others in preventing, controlling, and mitigating the consequence of internal conflicts throughout Europe, particularly in the Balkans.
NATO's evolution from a collective defense alliance to an organization primarily concerned with managing crises raised fundamental questions about its overarching purpose, the missions it should prepare for, and the role the threat and use of force should play in such missions. With regard to NATO's future purpose, there is as yet no real agreement among the allies on what it should be. Some members continue to view NATO as primarily an alliance of collective defense whose main purpose is to provide a hedge against a militarily vengeful Russia that may emerge out of the political and economic chaos that marks present-day Russia. Others believe NATO ought to be an alliance of collective security whose main purpose is to promote the values of the Atlantic community of market democracies throughout Europe in an effort to spread the stability and security that derives from being part of the transatlantic security community. Yet others maintain that NATO can be an alliance of collective interests whose main purpose is to defend against threats to common, European and American, security interests no matter where these threats come from.
On the eve of NATO's 50th Anniversary summit, which will convene in Washington in late April, the allies have yet to resolve these competing visions of the Alliance's future. These differences are reflected in the internal deliberations on the Alliance's new strategic concept that will be adopted at the Washington summit. The new strategic concept (the previous one of which has remained unchanged since the Soviet break-up) will guide Alliance planning on questions relating to the use of force and the development of capabilities for doing so into the next century. Three questions, in particular, remain in dispute. First, under what circumstances should NATO threaten or use force? Second, how far should NATO's writ extend geographically? Third, what is the legal basis for the threat or use of force by NATO in any of these situations?
What follows is a brief overview of the main issues in contention regarding these critical questions. It ends with some suggestions on how the Alliance might resolve each of these questions as part of its revised strategic concept.
When should NATO Threaten or Use of Force?
Perhaps the least contentious question confronting the allies involves the circumstances under which NATO should consider threatening or using force. There is complete agreement among the allies in the case of a direct attack against one or more Alliance members. NATO members have the right indeed, the obligation under Article 5 of the Washington treaty to act forcefully to restore the status quo ante at the first possible opportunity. Of course, the allies recognize that with the disappearance of the Soviet Union and the collapse of its cold war Warsaw Pact adversaries, a direct assault on allied territory of the extent and gravity for which NATO was long prepared is virtually inconceivable.
Instead of a unified and large-scale threat to allied territory, the Alliance now must consider at least two types of challenges that could require a military response. First, although the threat of direct attack against Alliance territory as a whole has effectively disappeared, a military attack against the territory of a single NATO country is still quite possible. This could take a variety of forms. For example, a country in North Africa, the Middle East, or beyond could launch ballistic missiles armed with conventional or more destructive weapons against a NATO capital or a military installation on allied territory. There could also be a terrorist attack by a state or non-state actor either in retaliation for some type of action by a NATO member or simply as a political statement of some kind. Or there could be a more conventional attack, which could result from either deliberate action or, more likely, the spill-over from a regional conflict.
In all these cases, NATO's Article 5 commitment in principle would come into play, thus necessitating an Alliance response. In practice, however, the allies are unlikely to agree on the nature of either the challenge or the preferred response because their interests would be affected in different ways if any of these situations occurs. Whereas during the cold war forward defense in Germany was seen as the best way to defend not only Germany but also one's own country against a Soviet invasion, a regional conflict or a single ballistic missile attack on one NATO country would have different implications for those allies not directly affected by the attack. The risks of direct military involvement would consequently differ, raising the likelihood that not all allies would respond similarly. That such differences can arise was demonstrated during the 1991 Gulf war when, faced with the possibility that Turkey might suffer Iraqi military retaliation, some senior German politicians argued, contrary to explicit NATO decisions, that Article 5 might not even apply. In other words, when the source and specific circumstances for an attack on a NATO member are uncertain or contested, the interests of individual allies and their willingness to respond militarily are likely to differ as well.
Some situations in which allied territory is confronted with a direct armed attack may not be regarded by all allies as constituting the type of attack envisaged under Article 5. Two examples can help illustrate the point. First, if Iraq had responded to the four-day air campaign by the United States and Great Britain in December 1998 by launching a ballistic missile attack against Incirlik Air Force base in Turkey, some allies who objected to the British and U.S. action might have been unwilling to consider this an attack on a NATO member of the kind that would fall under Article 5. In a sense, the Iraqi retaliation was provoked by the U.S. and British air strikes and might, as such, be viewed as something less than a direct attack against a NATO country. Second, if a terrorist attack had occurred against a U.S. target on allied territory in response to the bombing of the Al Shifa chemical plant in Sudan (an action which few U.S. allies supported), it is doubtful that many, if any, allies would have viewed this as an Article 5 contingency. Indeed, neither the disco bombing in Berlin in 1986 nor the bombing of PanAm flight 103 over Lockerbie, Scotland in 1988, both of which were terrorist attacks against U.S. targets on or over allied territory, was viewed in such a manner. Differences over the nature and reason of an armed attack against allied territory are thus likely to remain sources of contention in determining whether any NATO response is warranted and, if so, what the appropriate response might be.
Another type of military challenge that may require a NATO military response involves crises or threats that do not directly affect allied territory, but that may have implications for important national or humanitarian interests. Bosnia and Kosovo represent two instances where the Alliance has made such a determination, deciding to use or threaten to use military force even though the Article 5 collective defense commitment was not directly at stake. In recent years, allied leaders and others have pointed to crisis management and other non-Article 5 contingencies that could require NATO's military involvement to address a humanitarian emergency, counter proliferation, respond to terrorism, avoid or mitigate genocidal violence, or deter or defeat major aggression in non-European regions. There is no doubt that NATO could embark on these types of missions if its members so desired. U.S. Secretary of State Madeleine Albright has explained, "founders of the Alliance were wise to allow us the flexibility to come together to meet common threats that could originate from beyond our immediate borders. [W]hile the North Atlantic Treaty involves commitments to collective defense, it also allows us to come together to meet common threats that might originate from beyond the North Atlantic area."
At the same time, it is clear that NATO is not required to act in these circumstances, and the question of whether NATO should engage in non-Article 5 missions and, if so, where and to what extent remain disputed within the Alliance. There are at least three different views on the matter. First, France, the new entrants, and, to some extent, Germany believe that NATO's core mission is and must remain collective defense and the Alliance should consider engaging in non-article 5 operations only to the extent that doing so does not detract from the allies' ability to prepare for and, if necessary, meet the collective defense obligation. In addition, allies should eschew any non-Article 5 operation that risks escalating into an Article 5 commitment. Second, some of the southern allies and Canada maintain that in the absence of a significant military threat to allied territory, peace support and crisis management operations must become central functions of a transformed NATO. They argue that while the ability to conduct high-intensity combat operations must be retained (for the residual case of collective defense), the emphasis of NATO force planning and restructuring must be on strengthening the ability to conduct peace support missions in an era marked by extensive civilian-military cooperation. Finally, the United States and Great Britain argue that NATO must prepare for the full spectrum of missions ranging from peace support to regional collective defense operations within and beyond Europe. As NATO's military authorities have recognized, the distinction between Article 5 and non-Article 5 missions is becoming operationally irrelevant. Moreover, since a non-Article 5 mission could spill over or escalate into an Article 5 contingency (as some feared in Bosnia and Kosovo), Alliance force planning must merge these two types of missions.
Given these different perspectives, what should the NATO allies do? Instead of limiting the circumstances under which NATO should threaten or use force to particular types of contingencies be they regional collective defense or peace operations the Alliance is best served if it emphasizes its willingness in principle to engage in the full spectrum of possible military missions. To focus exclusively on collective defense would prepare the Alliance for the least likely contingency, in effect marginalizing NATO as a Euro-Atlantic security institution. Similarly, insisting that NATO give priority to peace support and crisis management operations and placing a premium on preparing NATO forces and organizational structures for them, will likely erode the Alliance's ability to conduct more robust combat missions missions for which NATO as the only security organization in Europe or, indeed, the world is uniquely prepared.
The Atlantic Alliance must therefore prepare for the full range of possible military missions. In doing so, it nevertheless needs to set clear priorities for NATO planning. Without such prioritization the Alliance could quickly turn into an organization that is all things to all people in theory, while in practice being capable of conducting few, if any, missions. What, then, should be the Alliance's focus? Where should lines be drawn, at least for planning purposes? While being prepared in principle to conduct a whole range of missions, NATO should concentrate its efforts and resources in three areas:
Crisis management operations within the Euro-Atlantic area, especially those that are designed to enforce norms, rules, and codes of conduct for relations within and between states in the region set out in the Helsinki Final Act and the 1990 Charter of Paris. The focus of NATO action should be both on situations involving particularly egregious violations of these standards of behavior and on providing the decisive military capabilities necessary to enforce compliance with these standards. This could include the deployment of forces in the crucial phases of a peace support operation, when (as in Bosnia and possibly Kosovo) implementation of an agreement's provisions must be enforced and the general security environment stabilized. Crisis management operations that could spill over or escalate into an Article 5 contingency. Relevant cases include conflicts near Alliance territory whose outcomes are crucial to member states' security (e.g., conflicts involving Albania or Macedonia) and threats involving the use of weapons of mass destruction (WMD). Regional collective defense missions in NATO's southeastern (and perhaps its eastern) region, where the possibility of direct attack or the escalation of conflict, though not immediate, is not unrealistic. This would include contingency plans for regional collective defense of Turkey, Greece, Hungary, and possibly Poland and the Czech Republic.
In considering whether to conduct such missions, NATO countries should generally act on the basis of a formal decision by the North Atlantic Council. However, the possibility for joint military action in a non-Article 5 context should not be conditioned on unanimous consent, as some have argued. Doing so could require a prolonged effort to build an Alliance-wide consensus for action that could result in an unacceptable delay or even the failure to act. Such was the case in Kosovo in 1998. The search for a NATO consensus delayed a military response past the point when it could have been effective in mitigating the consequences of the violent Serb crackdown in Kosovo and laying a foundation for a plausible and sustainable political resolution to the conflict without a large international military presence to enforce it.
At a time when allied views on the nature of likely threats and the scope and extent of possible responses increasingly diverge, insisting on unanimity for joint action is as likely to result in an allied stalemate as in a decision to intervene. While always striving to achieve an Alliance consensus, the allies should agree that joint military action by some NATO allies may in certain circumstances be both possible and desirable even without a formal decision by the North Atlantic Council. Some may fear that this will undermine Alliance unity, while others may worry that certain allies will abstain from any participation and in effect become "free riders." These concerns are real. But they must be weighed against the requirements for a flexible and adaptable instrument for joint military action at a time when allied interests vary more than ever. In the end, an Alliance that provides the basis for rapid and effective responses to crises in and outside allied territory, even if action is taken by a subset of allies, is preferable to one that conditions action on potentially unattainable unanimous support.
NATO's Geographic Reach
Related to the differences among the NATO allies over the circumstances under which the allies should threaten or use force is the question of NATO's geographic reach. In principle, there is nothing in the Washington treaty to prevent NATO from taking military action wherever its members agree in or out of Europe. Article 4 of the treaty stipulates that the members "will consult together whenever, in the opinion of any of them, the territorial integrity, political independence, or security of any of the Parties is threatened." This treaty article also provides the explicit basis for one of the four Alliance security tasks set forth in the Alliance's Strategic Concept that was adopted by allied leaders in November 1991. That task was for NATO to serve "as a transatlantic forum for Allied consultations on any issues that affect their vital interests, including possible developments posing risks for members' security, and for appropriate coordination of their efforts in fields of common concern."
In practice, however, there is no agreement on how far this commitment to consultation and the coordination of joint efforts extends geographically. On one side of the debate stands the United States, which, as a global power with global interests, argues that NATO should be the instrument of choice to deal with threats to the common interests of its members, wherever these threats arise. From this perspective, NATO's fundamental purpose after the cold war should shift from defending common territory to defending the common interests of Alliance members. At the same time, U.S. officials stress that such an alliance of collective interests would not become a "global NATO," but rather a NATO that is globally active. In this era of globalization, it is argued, placing geographical limits on NATO's reach and purpose would marginalize the Alliance in the foreign and security policy of the United States and its major European allies, all of whom have interests that reach well beyond the geographical confines of the Euro-Atlantic region. As Secretary Albright explained at a meeting of the North Atlantic Council, "the United States and Europe will certainly face challenges beyond Europe's shores. Our nations share global interests that require us to work together to the same degree of solidarity that we have long maintained on this continent."
U.S. support for placing NATO in a global context rests on two arguments. First, the basic security threats confronting the United States and its NATO allies are located outside rather than within Europe. Europe today is at relative peace. For the first time in a century, European stability is not threatened by a major power be it a revisionist Germany or an expansionist Russia. Instead, Europe's actual peace is today disturbed only by Serbia, which is led by a thug, whose actions cause large-scale human suffering but pose no fundamental or systemic threat to NATO countries or to European stability. At the same time, instability and threats to real, if not vital, interests do exist outside of Europe. These include WMD proliferation, terrorism, disruption of energy supplies, and challenges to the balance of power in critical regions like southwest and northeast Asia. Addressing these threats in concert would be in the interest of all NATO allies and therefore ought to guide NATO's purpose. Second, if threats outside Europe pose the most immediate challenge to the shared interests of the NATO countries, the Alliance combines countries that are the most capable of dealing with these types of threats. It is therefore to the allies' advantage to combine their considerable resources to defend against threats to their values and interests and to use NATO, the militarily most capable and best organized instrument, for that purpose. As Albright told her Alliance colleagues in December 1997, "when the world needs principled, purposeful leadership against aggression, proliferation, and terror, the nations represented in this room have to set other concerns aside and lead, because few others can or will."
The American vision of a NATO acting globally is not one widely shared by the European allies. For most European allies including even those, like Britain and France, whose interests extend well beyond Europe the Atlantic Alliance remains a quintessential European security organization, whose fundamental purpose is to provide security in and for Europe. The debate among them is not whether the Alliance should have a role beyond Europe, but rather how far beyond allied territory its role should extent. Most allies have come to accept that NATO's role extends into the Balkans as underscored by its leading role in Bosnia and Kosovo but many believe that this is about as far as it should go.
In addition to perceiving NATO's role in different ways, many allies are also quick to point out that their views of the interests, of the challenges and threats to those interests, and of the best way to respond to them often differ from those of the United States. This is particularly true in the Middle East, where U.S. and European perspectives on the nature of conflict and the preferred solutions have long diverged. It is also true regarding a threat that many regard as the preeminent post-cold war challenge to NATO the proliferation of weapons of mass destruction. Whereas Secretary Albright has argued that WMD proliferation constitutes as much of a unifying threat to the Alliance as the Soviet threat of yesteryear, most European allies neither perceive it as an immediate threat to Europe nor regard NATO as the primary instrument for effectively dealing with the WMD threat. International treaties and organizations, including the United Nations, as well as more ad-hoc supplier regimes are generally regarded as the preferred instruments for addressing proliferation. In contrast to the U.S. penchant for a policy of isolation and confrontation, moreover, most Europeans believe that an emphasis on engagement is more likely to produce results. While the allies share an interest in halting proliferation, they neither see the threat in the same manner nor agree on NATO's role in combating it. The same might be said of other challenges to common interests outside Europe.
In view of these differences, it is unlikely that the allies will agree to extend NATO's reach beyond Europe any time soon. For most allies, NATO is a regional organization whose role is confined to the Euro-Atlantic region. This is consistent with the original intent of the Alliance, which, as expressed in Article 10 of the Washington treaty, limited consideration of future membership to European states. Moreover, under the UN Charter, the Atlantic Alliance operates as a regional rather than a global organization. For these reasons, the allies should agree to generally limit NATO's geographical reach including the threat and use of force to the Euro-Atlantic region. At the same time, they should do nothing that would deny those allies that so desire the ability to operate beyond this region if and when they believe it to be necessary. Indeed, one of the unique strengths of the Alliance is that it provides a solid foundation for joint military action by some or all allies in defense of their territory, values, and interests wherever such action they deem appropriate.
The Legal Basis of NATO's Threat or Use of Force
Of the many issues relating to the threat and use of force by NATO that have divided the allies, none have been as contentious as the so-called mandate question, i.e., under what authority or on which legal basis can NATO threaten or use military force in other than a collective defense contingency. At the outset of this debate, most allies believed that NATO should not act in this type of situation without an explicit mandate or authorization from the United Nations or the Organization for Security and Cooperation in Europe. Allied leaders agreed as much at their 1994 Brussels Summit: "We reaffirm our offer to support, on a case by case basis in accordance with our own procedures, peacekeeping and other operations under the authority of the UN Security Council or the responsibility of the CSCE." In recent years, however, there has been a growing division within the Alliance about the role and authority, if any, of the UN and other organizations in legitimizing or mandating the use of force by NATO. Two competing perspectives have emerged a French perspective that gives the UN Security Council the primary role in authorizing NATO's use of force; and a U.S. perspective that essentially argues that NATO has the right to use force whenever the interests of its members so require.
The French perspective is based on the notion that the use force in international affairs, by a single state or group of states like NATO, is ultimately governed by the United Nations Charter. The UN Security Council is empowered by the Charter to determine the existence of any threat to or breach of peace (Article 39). At the same time, the Charter recognizes that states have the right to defend themselves individually and collectively (Article 51) and that regional arrangements or agencies can maintain peace and security within their region, provided they do so in a manner consistent with the purposes and principles of the UN (Article 52). The first purpose of the UN is to maintain international peace and security (Article 1) and one of its key principles requires members to refrain from "the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the United Nations" (Article 2).
Given this legal foundation, it follows that NATO can resort to force in self-defense, either of a member state that is attacked or of a non-member state so long as the government of that state requests NATO's assistance. The former situation falls squarely within the collective defense commitment of the Washington treaty; the latter, as the case of Bosnia demonstrated, follows logically from the right of collective self-defense. At the same time, NATO cannot use force against another UN member state without its government's consent if the action is not itself in defense of another UN member state unless the action is specifically authorized by the UN Security Council. That is the import of both Article 2 (which prohibits the use force against the territory or political independence of another state) and the proviso of Article 52 which limits action by regional arrangements such as NATO to those that are consistent with the purposes and principles of the UN. It follows from this reasoning that NATO can only use force in non-Article 5 contingencies either if it is invited to do so by the state involved or if it is explicitly authorized by the UN Security Council. Accordingly, France (with support from some allies) has insisted that the revised NATO strategic concept should explicitly predicate the use of force by NATO in these circumstances on the Alliance receiving a mandate from the UN Security Council.
It should be understood that this legal perspective provides a convenient rationalization for limiting NATO's role in Europe as much as possible to collective defense contingencies. That, after all, remains a major French objective. France views other institutions the EU and OSCE in Europe, and the UN globally as equally important in addressing post-cold war security challenges as NATO. Moreover, in contrast to NATO, in which France plays a distinctly minor role as a result of its refusal to participate in the Alliance's integrated military structure, France is a leading member of the European Union and its power and influence in the OSCE is no less than that of any other state, including the United States. And in occupying one of five permanent member seats on the UN Security Council, Paris naturally has an interest in enhancing the role and authority of that body.
It is therefore not surprising that the United States does not share France's perspective on this issue. Indeed, Washington prefers NATO precisely for the reasons Paris does not the Alliance not only provides the United States with an institutional entrée into Europe, but it is also an organization in which its influence is greater than that in any other international body. But there are more substantial reasons for U.S. opposition to the legalistic perspective France has championed. Critical among these is the implication of the French position that NATO's use of force in many non-Article 5 contingencies would be subject to a veto by two states (Russia and China) that do not share many of the values and interests that have long united the members of the Atlantic Alliance. Indeed, since both countries want to avoid setting the precedent that NATO or any other organization or groupings of states can intervene in the internal affairs of sovereign states, and if such intervention were to be conditioned on UN approval, either or both of the states is bound to use its veto in the Security Council to prevent forceful NATO action. As a result, the insistence on a UN mandate implies that the type of behavior Europe has witnessed in the Balkans during the last decade, including the widespread abuse of human rights and denial of fundamental freedoms, would go effectively unpunished or undeterred.
Given this practical reality, the United States favors leaving the decision on whether or not to use force up to the organization that would be responsible for undertaking such action in this case to NATO. The Clinton Administration has argued that if nineteen democracies deem the threat or use of force necessary to right a specific wrong, then that fact in and of itself provides sufficient justification and legitimacy for the contemplated action. No country would accept constraints on its freedom to act on behalf of its own interests in the manner and at a time it judges best. It argues that the same should be true for any organization of democratic states that acts on the basis of consensus.
It was not until the crisis in Kosovo erupted in 1998 that the NATO allies were confronted with the practical implications of what had been up to that point a largely theoretical argument. By early fall, the Alliance was forced to consider whether to threaten significant air strikes against Serbia, a sovereign country in the middle of Europe engaged in indiscriminate violence against civilians in the province of Kosovo. France and others argued that NATO, as a defensive alliance, could not act in situations other than self-defense unless the action was explicitly authorized by the United Nations. Rejecting a NATO capable of issuing its own mandate as a "Holy Alliance," French President Jacques Chirac argued that Paris "insists on the need for a Security Council mandate for every NATO military intervention." This view was shared by most NATO governments in Europe, including Germany. Always hesitant about using military force, Bonn was particularly cautious in staking out a new position in the run-up to the October Kosovo decision given that elections in late September 1998 had brought to power a new, center-left government. The United States, in contrast, argued that UN authorization would be welcome but not necessary for NATO to act. As the Pentagon's spokesman argued in early October, "The U.S. view has always been that NATO has the right to act on its own the right and the obligation to act on its own in matters of European security."
Aside from these theoretical differences, the Alliance also faced a practical complication. Although the UN Security Council had unanimously voted in September 1998 to demand both a halt to the indiscriminate attacks against civilian populations in Kosovo and the withdrawal of Serb security forces engaged in attacks, a new resolution authorizing NATO to enforce compliance with these demands faced a near-certain Russian and/or Chinese veto. After an agonizing series of diplomatic discussions and last-minute reports of a possible diplomatic breakthrough, the North Atlantic Council voted on October 13, 1998, to activate NATO forces and authorize its supreme commander to commence air strikes following a ninety-six hour delay.
Faced with the likelihood that the UN Security Council would veto NATO action while a looming humanitarian catastrophe threatened tens of thousands of refugees stuck in the Kosovo mountains during winter, NATO decided to act. Allied nations offered a variety of legal rationales for their decision including the fact that the UN Security Council had on two separate occasions identified the crisis inside Serbia as posing a "threat to international peace and security." The situation thus warranted enforcement action under Chapter VII of the UN Charter. The Serbs had also clearly violated the Geneva Convention on warfare. What proved decisive for many allies, however, was not that NATO under these circumstances could mandate itself to act, but rather the belief that the humanitarian crisis inside Kosovo could not be prevented without forceful action. As NATO's Secretary General Javier Solana argued days prior to the decision, "NATO has to have the opportunity on a case by case basis to act, if necessary, under [its] own decision, always with an appropriate legal base, and always within the spirit of the [UN] charter. There may be moments in which it is necessary to act for humanitarian reasons, when a UN Security Council resolution will not be necessary or will not be even appropriate because the UN charter does not contemplate humanitarian acts." As for NATO's right to act without explicit UN authorization, Solana argued that "it is a serious organization that takes a decision by consensus among serious countries with democratic governments," implying this fact alone conferred sufficient legitimacy on the contemplated action.
Despite having taken this decision, the NATO allies remain divided over whether Kosovo set a precedent for the future. Whereas the United States suggested that Kosovo demonstrated that NATO could act without an explicit UN Security Council mandate, other governments steadfastly maintained that this decision should not be seen as creating a right for NATO to arrogate a mandate. Where does this leave the Alliance? In principle, NATO may embark on non-Article 5 missions without the consent of the government(s) involved only if its actions enjoy the authorization of the UN Security Council. In practice, however, limiting NATO to those actions that have been approved by the Security Council could subject the Alliance to an effective veto by China or Russia. For this reason, NATO should not bind itself to a position that bars action in non-Article 5 contingencies if UN approval is not forthcoming. At the same time, although consensus among nineteen democratic states does provide a certain degree of legitimacy, the notion that NATO may arrogate the legal right to intervene in conflicts against the will of the government concerned is unsustainable. NATO cannot for long act like the Athenians who, in confronting the Melians during the Peloponnesian War, justified their action by asserting that "the strong do what they will, the weak do what they must." While Melos was conquered, Thucydides has reminded us that Athenian hubris proved to be that power's subsequent undoing. Of course, in view of the lack of consensus within NATO on when and how to intervene, the point may well be moot. Nevertheless, the use or threat of force ought to have a legal basis sound enough to be acceptable both to NATO publics and to the vast majority of the international community.
The Kosovo model of constructive ambiguity goes a long way toward filling the gap between requiring an express UN mandate on the one hand and NATO's self-mandating on the other. This approach recognizes that the authority to act in difficult cases may not be viewed in precisely the same way by every NATO member state, some of which may embrace a right of humanitarian intervention in response to gross violations of human rights or genocide, while others may require at least some relevant Security Council resolution short of express authorization (e.g., a finding that the conflict in question threatens international peace and security). Constructive ambiguity can thus allow agreed action to occur at a time when legal norms regarding the use of force in situations other than self-defense are still evolving.
Although this approach may be politically expedient (and close to what NATO is likely to favor), it does not provide a sound foundation for planning or public diplomacy, if only because the formula's very ambiguity rules very little in or out. This raises the question whether an agreed legal foundation can be found to provide an appropriate basis for the possible use of force by NATO in non-Article 5 contingencies. One answer is that the provisions of three key documents to which all NATO members are signatories could furnish such a basis. These are, first, the UN Charter, and particularly its primary purpose of maintaining international peace and security; second, the Helsinki Final Act, which underscores that respect for "human rights and fundamental freedoms is an essential factor for the peace, justice, and well-being necessary to ensure the development of friendly relations and cooperation" among the signatory states (i.e., all OSCE members); and, finally, the 1990 Charter of Paris for a New Europe (also signed by all OSCE states), which further elevated human rights and fundamental freedoms and declared that their "observance and full exercise are the foundations of freedom, justice, and peace."
The Charter of Paris, in particular, could supply the foundation on which to build a solid legal basis for NATO action in non-Article 5 situations, including the threat or use of military force, at least in cases involving genocide and or other serious violations of human rights. To be sure, this document, like the UN Charter and the Helsinki Final Act, affirms the principle of non-use of force against the territorial integrity and political independence of any state. But by emphasizing the primacy of human rights and affirming that "full respect for these precepts is the bedrock on which we will seek to construct the new Europe," the Charter provides a foundation for military action in response to gross violations of human rights or the denial of fundamental freedoms, at least within Europe. Of course, determining whether such an extreme violation has occurred will always remain subject to differing interpretations among the allies. Nevertheless, if and when a NATO of at least nineteen democratic states can agree that such a violation has occurred and forceful action is deemed necessary, then such action could be judged to be legitimate. In short, an agreed legal basis along these lines would enable the Alliance to take such action as it sees fit in cases of threats to or breaches of international peace and security involving gross violations of the human rights principles that are articulated in the UN Charter and the Helsinki Final Act, and further refined in the Charter of Paris.
As the members of the most successful military alliance in history prepare to celebrate NATO's 50th Anniversary, they are confronted with a notable paradox. On the one hand, the Atlantic Alliance has weathered the end of the cold war and emerged as the premier security organization in Europe. In contrast to the EU, OSCE, and even the United Nations, NATO is today viewed by members and non-members alike as Europe's "go-to" organization in those cases where the threat or use of force is deemed appropriate. On the other hand, the Alliance's fundamental purpose in the new Europe is contested. Its members old and new alike have yet to fully agree on what a military organization born and raised in response to an overwhelming military threat emanating from the Soviet Union ought to do now that this threat has disappeared. Nowhere is this difference of purpose more apparent than in regard to the issue of when and how NATO should use force.
As the discussion above has made clear, allied differences over the circumstances under which NATO should threaten or use force, how far its writ should extend geographically, and what the legal basis for NATO's threatening or using force in any of these situation ought to be remain profound. At the same time, some of these differences are more apparent than real, often a matter of style rather than substance. And in each case, reasonable compromises that are consistent with most points of view can be developed. Their acceptance by the NATO allies depends, however, on a willingness to abandon, at least for now, both highly restrictive and highly ambitious views of NATO's overriding purpose. If NATO's purpose is solely to provide for the collective defense of its members, then many of the issues regarding the use of force by the Alliance will have been settled, but only by making the organization virtually irrelevant to the main security challenges of the day. Similarly, if NATO's purpose is to defend challenges to a broad set of European and American interests on a global basis, then differences among the allies on the interests involved, the threats to those interests, and the nature of the appropriate response will likely paralyze the Alliance and ensure that inaction becomes the rule rather than the exception.
Instead, a middle ground must and most likely will be found. While NATO's core function must be to provide not only collective defense but also a foundation for joint military action whenever concerned allies so desire, its central purpose should be to extend the security and stability its members have long enjoyed to other countries throughout the Euro-Atlantic area. The allies can achieve this purpose in part by holding open the door to Alliance membership to any European states that both desires to join and has made the necessary political, economic, and military reforms. But it also means that the Alliance must become a key instrument in promoting the values and interests that set Europe apart from other regions in the world including support for democracy and the protection of human rights and fundamental freedoms. NATO brings to this task the unquestioned ability to deploy and use overwhelming military force. The threat of its use is often sufficient to ensure that states in Europe respect the norms, values, and codes of conduct governing their behavior to their citizens and neighbors alike. Sometimes, however, more than threats are required, and NATO has demonstrated in the Balkans that it is willing to use force in order to promote security and stability throughout the region.
If NATO's central purpose becomes promoting security and stability throughout the Euro-Atlantic area, then it will be possible for the allies to agree on when and how NATO should threaten or use force. Specifically, the Alliance could increasingly view the threat or use of force not only in terms of providing a credible deterrent and defense of allied territory, but also as a critical tool for helping to enforce the norms, values, and code of conduct that govern behavior within and between states in the Euro-Atlantic region. This would include the kind of operations NATO has conducted in the Balkans during the past years including threatening force to protect civilian populations in Bosnia, deploying troops to help enforce peace agreements in Bosnia (and, soon, in Kosovo), and conducting air strikes to force recalcitrant parties to seek a peaceful solution to conflict as happened in Bosnia and may still happen in Kosovo.
Second, as for NATO's geographical reach, although the Alliance should provide a solid foundation for joint military action by allies when and wherever they deem such action to be necessary, the emphasis for NATO's forceful action should be focused on dealing with situations in rather than beyond Europe. The Alliance is not today and is unlikely to become any time soon an appropriate instrument for using force outside of Europe. Its focus and planning horizon should therefore remain on Europe.
Finally, whenever possible, NATO should threaten or use force with the full backing of the international community, as expressed by the UN Security Council. It did so in Bosnia, receiving UN authorization not only prior to the conclusion of the Dayton Peace Accords, and also when it deployed some 60,000 troops to assist in the Accord's implementation. The draft interim agreement for Kosovo stipulates that the UN be invited to endorse a NATO-led peace operation to support implementation of such an agreement. At the same time, the Alliance cannot be held hostage to the whims and fortunes of non-NATO members, including potential Russian or Chinese vetoes. As an alliance of democratic states acting on the basis of consensus, NATO must maintain the possibility of acting without specific UN authorization. Even then, the allies should strive to act only on the basis of appropriate legal instruments, including the UN Charter and, for actions in Europe, the Helsinki Final Act and the Charter of Paris for a New Europe. The latter, in particular, provides a sound and solid legal foundation for threatening or using force in cases where human rights or fundamental freedoms are being denied.
In sum, NATO enters the next century as the only major security organization that is capable of wielding significant military force in Europe. It should do so only in support of efforts to extend security and stability throughout Euro-Atlantic region. And the Alliance can do so without recourse to non-European institutions so long as force is employed in support of sound purposes and principles to which all states in Europe subscribe.
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NATO, THE U.N. AND THE USE OF FORCE: LEGAL ASPECTS
Paper presented at two Policy Roundtables organized by
the United Nations Association of the United States
in New York and Washington, D.C.,
on 11 and 12 March 1999
Professor of Law at the University of Munich
Member, International Law Commission
Member, Advisory Boards on International Law and on the United Nations,
German Ministry of Foreign Affairs
PREFACE - The distinction between illicit and permissible uses of force is at the heart of every legal system. Fundamental among international rules are the U.N. Charter's limitations on the threat or use of armed force. If those rules are allowed to break down in some moral relativism, the entire system of orderly international relations and processes will suffer.
A. The fundamental law regarding force is Article 2(4) of the U.N. Charter: "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." No derogation is permitted from this rule; indeed, under the 1969 Vienna Convention "[a] treaty is void if its conclusion has been procured by the threat or use of force." The U.N. Charter provides two exceptions from this prohibition: "individual or collective self-defense [against] an armed attack" (Article 51), and Security Council enforcement action after the Council determines that a threat to peace, or breach of peace, has occurred. Moreover "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council" (Article 53). If the Security Council determines that massive violations of human rights occurring within a country constitute a threat to peace, and it calls for or authorizes an enforcement action to put an end to these violations, a "humanitarian intervention" by military means is permissible. In the absence of such an authorization, military coercion by any state or group of states even if employed to have the target respect human rights constitutes a breach of Article 2(4) of the Charter.
B. Kosovo shows that hard cases make bad law. NATO threats of air strikes in Kosovo, not having been authorized by the Security Council, breach a requirement of Charter law. Hence the German government insists that "the decision of NATO must not become a precedent."
C. "Uniting for Peace" was an attempt to fill a gap in the Charter system of collective security during the Cold War stalemate in the Security Council. Since the end of the Cold War, the Security Council is functioning precisely in the way envisaged in 1945, and there is no reason now to let the genie of NATO "self-authorization" out of the bottle. Other states or new alliances might also proclaim they "stand ready to act" without the Security Council to defend certain "interests and values" by armed force recall the "Brezhnev doctrine." Within a few years, NATO action has moved from full collaboration with the U.N. in Bosnia, to enforcement action in place of the U.N. authorized by the Security Council to implement Dayton, and now in Kosovo to enforcement in place of the U.N. without such authorization. Should the alliance now set out to include breaches of the U.N. Charter as a regular part of its strategic program for the future, this would have an immeasurably destructive impact on the universal system embodied in the Charter.
PREFACE: Does international law on the use of force matter?
i. After I had delivered my paper on NATO, the U.N., and the use of force to our hosts at UNA-USA and they had had a chance to look at it, I was asked to add a few pages on the question of why all the beautiful rules and principles that I had set out should matter: What does "international law" have to do with the realpolitik of "use of force"?
I must confess that I was quite surprised, even a little shocked, by this request. I simply cannot imagine being invited, say, to policy debates in Italy or France--or Argentina, or Japan--to speak about the same topic, and to have to explain at the outset why policymakers should care about such a fundamental chapter of international law. But on the positive side, the request to state reasons for something that to me--and many other Europeans--appears so obvious, in its frankness might bode well for a good and equally frank discussion.
So I preface my paper, particularly for our Washington forum, with a few remarks jotted down on the plane to New York, which are necessarily short and, I am afraid, (over)simplify complicated issues.
ii. To start with a somewhat philosophical point: The distinction between illicit and permissible uses of force is at the heart of every legal system. Hence, as long as international relations are posited upon the existence of sovereign, i.e., independent states, international law must restrain the use of force; otherwise it would suffer from a fundamental contradiction (HENKIN).
iii. The incorporation of a comprehensive ban on the use of force in the United Nations Charter, indeed, the positing of the entire organization and its law on this fundamental precept (as well as of the organizations created subordinate to the Charter--including, let us remember, NATO itself), was not the product of the whims of some soft-headed, idealistic dreamers. Rather, it marked the result of a long and painful learning process about the realities of international politics in a world political system in which national interest is unchecked by international law. The most recent lesson in that learning process had come in a war launched by powers that saw military force as a legitimate instrument to advance national interests, powers that scorned international law, international organizations, and democratic rules as the constraint of the weak and the weak-kneed on the power of the virile and strong. We are all aware of the central role played by American politicians, diplomats and--yes--lawyers in the construction and constitution of the new world organization completed in San Francisco. Thus, one reason why the U.N. Charter, including its ban on the threat or use of force ("save in the common interest" under U.N. authority) ought to be taken seriously, even in this country, might be that it was the moral and legal convictions of the United States which were decisive in bringing the Charter about in the first place.
iv. Since 1945, not a single State in the world has ever openly questioned the wisdom or legitimacy of the comprehensive prohibition embodied in Article 2, Paragraph 4 of the Charter, or declared this prohibition irrelevant or obsolete. On the contrary, in almost every instance in which States have resorted to the use of force, they explained or justified their actions by reference to the law of the Charter and the exceptions provided therein--above all, "the inherent right of individual or collective self-defense [against] an armed attack" in Article 51. This, by the way, has also been the constant practice of the United States.
Whether such justifications have always been convincing is another matter, of course. But what is decisive in the present context is the observation that it is the law of the U.N. Charter which is universally regarded as the authoritative frame of reference for any legal debate on our issue. This fact signifies that the Charter principles on the use of force are indeed considered to matter.
v. In their statements and exchanges, in or outside the U.N., the overwhelming majority of States accept the prohibition on the threat or use of force embodied in Article 2(4) as comprehensive, and speak out in favor of a narrow interpretation of self-defense--again, not for reasons of idealism or legalism but of historical experience. Overwhelmingly, practices diverging from these rules, or from their strict reading, are viewed as breaches of the law and not accepted as having the potential to lead to new, less "cumbersome" rules.
vi. It is not countries that scrupulously respect international law that find others coalescing to restrain, contain, or resist them. It is countries that disparage international law--that follow, in U.S. President Bush's words, "the law of the jungle" rather than "the rule of law"--that give rise to coalitions aimed at thwarting them. The behavior in violation of the spirit of international law may be that of a "rogue"; or, it may be that of what some call a "hegemonist." What is striking about the past half-century is how the apparent breaches of the Charter norms on use of force, overt or covert--usually with tortured "justifications" that stretch the Charter exceptions beyond recognition--did not get accepted. Instead, over time, they have tended to come unraveled, and the rest of the international community as well as the aggrieved themselves have in the long term gained vindication for the Charter principles.
vii. Another good reason why the U.N. Charter law on the use of force ought to matter to the United States is a very current one, so to speak. It lies in the fact that these principles and rules do matter so much to its NATO allies in the very context that has brought us together: the Kosovo crisis and the hammering out of the new "strategic concept" for the Alliance. I am no insider to this process, but from the publicly available information it seems clear that most European governments and parliaments are profoundly concerned about the political as well as legal implications of certain U.S. views and proposals, in particular for the continued relevance, indeed survival, of the U.N. system for the maintenance of peace and security. If this is the case, however, the United States will have no choice but to take these concerns seriously.
viii. It seems obvious that the United States, as the world's strongest power not only in the military but equally in the economic field, has most to gain from a functioning, reliable system of rules available in political relations at all levels. Fundamental among those international rules are the U.N. Charter's limitations on the threat or use of armed force. If those rules are allowed to break down in some moral relativism, the entire system of orderly international relations and processes will suffer, and an economy as "outgoing" as the American one will be particularly affected.
ix. Finally, let us not forget that the U.N. Charter system is the only institutionalized system for the maintenance or restoration of peace and security existing at the universal level. If we allow it to be chipped away by special, regional interests, peace in the various parts of the world may prove increasingly difficult to maintain. Perhaps we are witnessing the first signs of this erosion in Africa today.
A. The threat or use of force in international law
1. Contemporary international law establishes beyond any doubt that serious violations of human rights are matters of international concern. Such international concern has crystallized into impressive networks of rules and institutions both at the universal and regional levels. In case of human rights violations reaching the magnitude of the Kosovo crisis, these developments in international law allow States, acting individually, collectively or through international organizations, a whole range of peaceful responses. According to the dominant doctrine in the law of State responsibility (developed by the UN International Law Commission), the obligations on States to respect and protect the basic rights of all human persons are the concern of all States, i.e., they are owed erga omnes ("towards all"). Consequently, in case of material breaches of such obligations, every other State may lawfully consider itself legally "injured" and thereby entitled to resort to countermeasures (formerly called reprisals) against the perpetrator. Under international law in force since 1945, confirmed in the General Assembly's Declaration on "Friendly Relations" of 1970, countermeasures must not involve the threat or use of armed force. In the Kosovo case, such pacific countermeasures were employed, for instance, by the European Union last year through the suspension of the landing rights of Yugoslav airlines within the EU. Aside from the question whether this particular measure proved to be effective, it is somewhat surprising that a major member State of the EU, at least initially, did not regard itself in a position legally to have recourse to these peaceful means of coercing the FRY to respect the human rights of the Kosovar Albanians while not expressing respective doubts about the legality of its participation in the NATO threat of armed force built up a few weeks later.
The world community on its part, acting through the United Nations Security Council, resorted to a mandatory arms embargo vis-à-vis the FRY, including Kosovo (operative para. 8 of SC Res.1160).
We do not possess the information necessary to give a sound assessment of the impact and effectiveness of these non-military measures.
In the face of genocide, the right of States, or collectivities of States, to counter breaches of human rights is probably turned into an obligation (cf. the Judgment of the International Court of Justice in the Genocide (Bosnia-Herzegovina v. Yugoslavia) Case 1996). In Kosovo, however, what the international community is facing are massive violations of human rights and rights of ethnic minorities but not acts of genocide in the sense of the 1948 Convention.
2. Turning to the issue of enforcement of respect for human rights by military means, the fundamental rule from which any inquiry has to proceed is Art. 2(4) of the UN Charter according to which
"[a]ll Members [of the UN] 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."
It is clear on the basis both of a teleological and a historical interpretation of Art. 2(4) that the prohibition enacted therein was, and is, meant to be of comprehensive scope. Thus, contrary to certain views expressed during the Cold War years, the phrase "or in any other manner inconsistent...." is not designed to give room for any exceptions from the ban but to make the prohibition watertight. In contemporary international law, as codified in the 1969 Vienna Convention on the Law of Treaties (Arts. 53 and 64), the prohibition enuntiated in Art. 2(4) of the Charter is part of jus cogens (peremptory law, which cannot be set aside by agreement of some actors), i.e., it is accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same peremptory character. Hence, universal jus cogens like the prohibition embodied in Art. 2(4) cannot be contracted out of at the regional level. Further the Charter prohibition of the threat or use of armed force is binding on States both individually and as members of international organizations, like NATO, as well as on those organizations themselves.
Also, it is important to draw attention to Art. 52 of the just-mentioned Vienna Convention according to which "[a] treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations", paramount among these principles being Art. 2(4).
3. The law of the UN Charter provides two exceptions from the prohibition expressed in Art. 2(4) [the mechanism of the so-called "enemy-state-clauses" (Arts. 53 and 107) left aside because they are now unanimously considered obsolete]. The first exception, embodied in Art. 51 of the Charter, is available to States that find themselves victims of aggression:
"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".
As the Charter reference to collective self-defense, Art. 51 constitutes the legal foundation of the Washington Treaty by which NATO was established. Art. 5 of the NATO Treaty bases itself expressly on Charter Art.51.
According to the UN Charter, then, individual or collective self-defense through the use of armed force is only permissible in the case of an "armed attack". Like Art. 2(4), Art. 51 has become the subject of certain exorbitant (mis-)interpretations, most of them put forward during the Cold War when the Security Council regularly found itself in a state of paralysis. Against such attempts at turning a clearly-defined exception to the comprehensive Charter ban of the threat or use of force into a convenient basis for all sorts of military activities, it is to be emphasized once again that Art. 51 unequivocally limits whatever farther-reaching right of self-defense might have existed in pre-Charter customary international law to the case of an "armed attack". In particular, any offensive self-help by threats or use of armed force without a basis in Chapter VII has been outlawed by the jus cogens of the Charter.
4. To turn to this second exception to the Charter ban on armed force: Chapter VII (Arts. 39-51) constitutes the very heart of the global system of collective security. According to its provisions, the Security Council, after having determined that a threat of the peace, breach of the peace, or act of aggression has occurred, may, if necessary, take military enforcement action involving the armed forces of the member States. In actual UN practice, it is now common that such enforcement action is carried out on the basis of a mandate to, or (more frequently) of an authorization of, States willing to participate, either individually or in ad hoc coalitions, or acting through regional or other international organizations, among them prominently NATO. While the implementation of Chapter VII through a "franchising system" of this kind creates plenty of problems of its own, it is universally accepted that a Security Council authorization granted under Chapter VII establishes a sufficient basis for the legality of the use of armed force employed in conformity with the respective Council Resolution(s). Conversely, any threat or use of force not justified as self-defense against an armed attack or called for, respectively authorized, by the Security Council must be regarded as a violation of the UN Charter.
5. Chapter VIII of the Charter (Regional arrangements) completes the legal regime so devised. Thus, according to Art. 53 para. 1,
"[t]he Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority".
The UN Secretary-General's 1992 "Agenda for Peace" has emphasized the desirability, indeed necessity of this mechanism of support. The provision then continues:
"But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council" [with the now obsolete exception of the employment of the "enemy-State-clauses"].
This provision, too, has been subjected to considerable strains, above all during the Cold War, one particularly dubious example being the view that failure of the Council to disapprove regional military action amounts to (tacit) authorization. In view of the veto power of the permanent Council members, this is a specious argument. On the other hand, what an interpretation of Art. 53 para. 1 in good faith does leave room for is the possibility of implicit as well as ex-post-facto authorization.
6. In conclusion of this short tour d'horizon of the relevant international law in force, reference must also be made to Art. 103 of the Charter, according to which
"[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail".
Prominent among the Charter obligations thus enjoying priority is, of course, the prohibition on the threat or use of force embodied in Art. 2(4), in the context of the other provisions of the Charter to which reference was made above (Arts. 51 and 53, Chapter VII). Since Art. 2(4) reflects a norm of jus cogens, any agreements, decisions and obligations conflicting with it are invalid. Hence, Art. 103 renders the UN Charter itself as well as the obligations arising under it, for instance from binding Security Council decisions, a "higher law" vis-à-vis all other treaty commitments of the UN member States, among them those stemming from NATO membership (cf. in this regard also Art. 7 of the NATO Treaty).
7. The question of the legality v. illegality of so-called "humanitarian intervention" must be answered in light of the foregoing. Hence, if the Security Council determines that massive violations of human rights occurring within a country constitute a threat to the peace, and then calls for or authorizes an enforcement action to put an end to these violations, a "humanitarian intervention" by military means is permissible. In the absence of such authorization, military coercion employed to have the target State return to respect for human rights constitutes a breach of Art. 2(4) of the Charter. Further, as long as humanitarian crises do not transcend borders, as it were, and lead to armed attacks against other States, recourse to Art. 51 is not available. For instance, a mass exodus of refugees does not qualify as an armed attack. In the absence of any justification unequivocally provided by the Charter "the use of force could not be the appropriate method to monitor or ensure ... respect [for human rights]" - to use the words of the International Court of Justice in its 1986 Nicaragua Judgment (para 268). Also in 1986, the United Kingdom Foreign Office summed up the problems of unilateral, that is, unauthorized, humanitarian intervention as follows: "[T]he overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention, for three main reasons: first, the UN Charter and the corpus of modern international law do not seem to specifically incorporate such a right; secondly, State practice in the past two centuries, and especially since 1945, at best provides only a handful of genuine cases of humanitarian intervention, and, on most assessments, none at all; and finally, on prudential grounds, that the scope for abusing such a right argues strongly against its creation ... In essence, therefore, the case against making humanitarian intervention an exception to the principle of non-intervention is that its doubtful benefits would be heavily outweighed by its costs in terms of respect for international law" (UK Foreign Office Policy Document No. 148, reprinted in 57 BYIL 614 ).
The question arising at this point is, of course, whether the state of the law thus described could have changed in recent years, possibly after the demise of the East-West conflict, or under the shock of the genocide and crimes against humanity occurring in the former Yugoslavia. Could it not be that recent "humanitarian interventions", undertaken in the spirit of not allowing Srebrenica to happen again, as it were, deserve a friendlier reaction on the part also of the international lawyer? Do recent instances of "military humanitarianism" present themselves uninfected by the less laudable motives characterizing such actions in the past? To what extent will collective decision-making, or the involvement of NATO or the OSCE as such, secure that such improper motives are restrained or even eliminated? And, most importantly, how could even the purest humanitarian motives behind military intervention overcome the formidable international legal obstacles just described? These obstacles could only be removed by changing the law of the UN Charter. There is no prospect of such a change, however. Thus, "humanitarian interventions" involving the threat or use of armed force and undertaken without the mandate or the authorization by 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 circumstances of the concrete case, and of the efforts, if any, which the parties involved undertook to get "as close to the law" as possible. Such analyses will influence not only the moral but also the legal judgment on the particular case.
B. Kosovo: a thin red line
8. In the case of Kosovo, large-scale violence had flared up in late 1997/early 1998. At that stage, involvement of the international community set in quickly and strongly, at least compared with earlier sad instances. On 31 March 1998 the Security Council, acting under Chapter VII but without expressly determining that the Kosovo crisis amounted to a threat to the peace, adopted Res. 1160 (1998) in which the Federal Republic of Yugoslavia (FRY) and the Kosovar Albanians were called upon to work towards a political solution. As mentioned earlier, in the same resolution, the Council imposed a mandatory arms embargo vis-à-vis both parties. It emphasized "that failure to make constructive progress towards the peaceful resolution of the situation in Kosovo will lead to the consideration of additional measures" (para 19).
Following this, the situation deteriorated rapidly, fighting intensified, and the Serbian security forces as well as the Yugoslav Army used force in an excessive and indiscriminate manner, thus causing numerous civilian casualties, the displacement of hundreds of thousands of innocent persons from their homes, and a massive flow of refugees into neighboring and other countries. In April of 1998, the Contact Group for the Former Yugoslavia agreed, with the exception of the Russian Federation, to impose new sanctions on the FRY. In June, the UN Secretary-General advised NATO about the necessity of a Security Council mandate for any military intervention in Kosovo. However, by that time it had become apparent that the Russian Federation would not agree to such a step.
On 23 September 1998, the Security Council adopted Res. 1199 (1998) in which, also on the basis of Chapter VII, the deterioration of the situation in Kosovo was determined to constitute "a threat to peace and security in the region". The Council demanded the cessation of hostilities, a cease-fire, as well as immediate steps by both parties to improve the humanitarian situation and enter into negotiations with international involvement. The FRY was requested to implement a series of measures towards achieving a peaceful solution of the crisis. In conclusion, the Council "[d]ecide[d], should the concrete measures demanded in this resolution and resolution 1160 (1998) not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region".
During the weeks that followed it became clear, however, that Russia would veto any Council Resolution containing a mandate or an authorization to employ threats or the use of force against the FRY. On the other hand it was equally clear that the just-quoted reference to eventual further Council action in Res. 1199 (1998) was not sufficient in itself to provide a legal basis for the threat or use of armed force by UN member states or international organizations. Thus, the Security Council was in no position to take the "logical" further step of following up on Res. 1199 (called a "springboard resolution " by then German Foreign Minister Kinkel) and finally authorizing enforcement action if the situation was not to improve.
9. At this point NATO took over, as it were. Its members gave the organization the go-ahead for military action if the FRY did not comply with the Council resolutions, and the Alliance prepared for air strikes against the FRY. The principal legal basis for such action was to be the concept of "humanitarian intervention", linked as closely as possible under the circumstances to the UN Charter, to further gain in legitimacy. The NATO position was summarized in a letter of Secretary General Solana addressed to the permanent representatives to the North Atlantic Council on 9 October 1998 as follows:
"The relevant main points that have been raised in our discussion yesterday and today are as follows:
- The FRY has not yet complied with the urgent demands of the International Community, despite UNSC Resolution 1160 of 31 March 1998 followed by UNSC Resolution 1199 of 23 September 1998, both acting under Chapter VII of the UN Charter.
- The very stringent report of the Secretary-General of the United Nations pursuant to both resolutions warned inter alia of the danger of an [sic] humanitarian disaster in Kosovo.
- The continuation of a humanitarian catastrophe, because no concrete measures towards a peaceful solution of the crisis have been taken by the FRY.
- The fact that another UNSC Resolution containing a clear enforcement action with regard to Kosovo cannot be expected in the foreseeable future.
- The deterioration of the situation in Kosovo and its magnitude constitute a serious threat to peace and security in the region as explicitly referred to in the UNSC Resolution 1199.
On the basis of this discussion, I conclude that the Allies believe that in the particular circumstances with respect to the present crisis in Kosovo as described in UNSC Resolution 1199, there are legitimate grounds for the Alliance to threaten, and if necessary, to use force."
(Document on file with the author).
10. This announcement appears to have made a certain impression on the FRY. In any case, during the days that followed intensive diplomatic efforts particularly of US Special Envoy Richard Holbrooke, lead to a cease-fire and the conclusion of two agreements: a first one of 16 October 1998 between the FRY and the OSCE providing for that organization to establish a verification mission in Kosovo, including the undertaking of the FRY to comply with Resolutions 1160 and 1199; and a second one between the FRY and NATO signed on 15 October 1998, providing for the establishment of an air verification mission over Kosovo in order to complement the OSCE mission. According to the first-mentioned agreement,
"[i]n the event of an emergency situation in Kosovo which in the judgement of the [OSCE] Mission Director threatens the safety of members of the Verification Mission, the FRY shall permit and cooperate in the evacuation of Verification Mission members" [by a NATO Extraction Force] (38 ILM 24 ).
Holbrooke further reached an accord with the FRY according to which negotiations on a framework for a political settlement were to be completed by 2 November 1998.
11. On 24 October 1998, the UN Security Council returned to the scene again, reacting to the conclusion of the Holbrooke agreements with the adoption of Res. 1203 (1998). Acting under Chapter VII, the Council formally endorsed and supported the two agreements concluded on 15 and 16 October concerning the verification of compliance by the FRY and all others concerned in Kosovo with the requirements of its Resolution 1199, and demanded full and prompt implementation of these agreements by the FRY. It affirmed that the unresolved situation in Kosovo constitutes a continuing threat to peace and security in the region.
After a certain period during which the humanitarian and security situation in Kosovo improved, violence increased again, however, culminating in the events in Racak in mid-January 1999. In response, NATO threats of air strikes were resumed.
On 28 January 1999, UN Secretary General Kofi Annan (himself a former special UN envoy to NATO) met with the North Atlantic Council. His statement to the Council includes the following passages:
"We must build on the remarkable cooperation between the UN and SFOR in Bosnia to further refine the combination of force and diplomacy that is the key to peace in the Balkans, as everywhere. The success of the NATO-led mission operation under a United Nations mandate is surely a model for future endeavors.....
Let me conclude by congratulating you on the upcoming 50th anniversary of the alliance, and wish you all success in your deliberations on devising a new strategic concept for the next century. How you define your role, and where and how you decide to pursue it, is of vital interest to the United Nations, given the long tradition of cooperation and coordination between NATO and the UN in matters of war and peace. I look forward to hearing your views on this matter." (Document on file with the author).
At a press conference in Brussels, the UN Secretary General, when asked about the preconditions of military intervention in the FRY/Kosovo, is reported to have said that "normally a UN Security Council Resolution is required" (emphasis added; document on file with the author).
On the same day, NATO Secretary General Solana made a statement to the press on behalf of the North Atlantic Council in which he affirmed that NATO fully backed a new initiative of the Contact Group and was ready to employ its military capabilities if necessary. He then added: "You have seen from the visit of the United Nations Secretary General to NATO earlier today that the United Nations shares our determination and objectives" (NATO Press Release  11). On the evening of the same day, following decisions of the Contact Group taken on 29 January 1999 aiming at reaching a political settlement between the parties to the Kosovo conflict, and establishing a framework and timetable for that purpose the President of the Security Council made a statement according to which the Council welcomed and supported the decision of the Contact Group, and demanded that the parties should accept their responsibilities and comply fully with these decisions as well as the relevant Council resolutions. Further, the Security Council reiterated its full support for international efforts, including those of the Contact Group and the OSCE Verification Mission, to reduce tensions in Kosovo and facilitate a political settlement (S/PRST/1999/5).
The next day, Secretary General Solana repeated the threat of air strikes if the "requirements of the international community" and all relevant Security Council resolutions were not observed. In this context he welcomed the just-mentioned Presidential Statement (NATO Press Release  12).
On 1 February 1999, the FRY requested an emergency meeting of the Security Council "following the NATO threats to the sovereignty of [his] country". According to the FRY, "[t]he decision by NATO, as a regional agency, to have its Secretary-General authorize air strikes against targets on FRY territory... represents an open and clear threat of aggression against the FRY as a sovereign and independent Member State [sic] of the United Nations". (Document on file with the author).
The FRY letter then drew attention to the necessity of UN authorization of enforcement action to be undertaken by a regional organization.
At the time of writing, the international community is expecting the parties to the Kosovo conflict to return to the negotiating table(s) and hammer out the details of a "Rambouillet Agreement". As things stand at the moment, in this agreement, the Security Council will be requested to issue a mandate for a NATO-led multinational peace mission (KFOR), involving armed forces both of members and non-members of NATO, to secure the implementation of the "Rambouillet Agreement" if necessary by military means. However, in view of the fact that the future agreement would embody the consent of the FRY to the deployment of the multinational peace force on its territory, NATO and its member states appear to regard a UN Security Council mandate/authorization as politically desirable but not indispensable, should the veto of a permanent member stand in the way. This at least was the viewpoint taken by the German Government in the parliamentary debate in late February 1999 leading to the approval by the Bundestag of German participation in the military implementation of the future "Rambouillet Agreement" as well as in NATO operations within the framework of the Extraction Force (cf. Deutscher Bundestag, 14. Wahlperiode, Docs. 14/397 and 14/414; see further the report of the members of the Auswärtiger Ausschuß (foreign relations committee) of the Bundestag annexed to the second document, p.5). A similar view had been expressed earlier on with regard to the effect of the Holbrooke Agreements on the legality of the presence of the OSCE Verification Mission in Kosovo and on that of the eventual evacuation of OSCE Verification Mission members by the NATO Extraction Force (cf. the passage from the agreement of 16 October 1998 quoted supra in para. 10).
In contrast, the current position of the Russian Federation is said to call for a Security Council mandate based on Chapter VI in addition to an agreement with the territorial sovereign. If this condition were met, Russia appears to be ready to participate also in a NATO-led multinational peace mission in Kosovo.
12. Thus the chain of events relevant in the present context has developed to date. In the following, these facts will be assessed as against the law set out in Part A.
First, contrary to the standpoint taken in the FRY's request of 1 February for a Council emergency meeting, NATO is not a regional organization in the sense of Chapter VIII of the UN Charter. On the part of NATO, this was expressly clarified years ago in a letter addressed by former Secretary General Willy Claes to the UN Secretary General. Consequently, the requirement enshrined in Art. 53 para. 1 of the Charter (cf. para 5 above) of an - express or implicit, prior or ex-post-facto - authorization of enforcement action under regional arrangements or by regional agencies is not formally applicable in the case of NATO. NATO constitutes an international organization based on Art. 51 of the Charter; the only "enforcement action" envisaged there being collective self-defense. If NATO now widens the scope of its activities beyond "Article 5 missions" (on the internal, "constitutional" aspects of this development see infra para. 24 ) it leaves the area of relative freedom of action granted by Art. 51 of the UN Charter and becomes fully subjected to the legal limits established by the "higher" (cf. Art 103) Charter law intended to contain or prohibit any other, i.e. offensive, kind of coercion or enforcement by military means. Thus, we are back at the basic principle "no threat or use of armed force except in self-defense or if called for, respectively authorized, by the Security Council". In our case, the requirement of such authorization would result (not from Chapter VIII but) from Chapter VII of the Charter. However, as to the modalities of Security Council authorization, the clarifications developed on Art. 53 para. 1 will certainly be applicable by way of analogy. The argument could even be made that legal limitations to be applied in cases of interaction between the UN and regional organizations foreseen by the Charter would have even great weight vis-à-vis an organization like NATO now venturing into the field of "enforcement action" against third states (arguing a minori ad majus, from the small case to the large). In concrete terms: NATO could be authorized by the Security Council to threaten or use armed force against the FRY not only expressly and prior to such action but also implicitly ex post but not tacitly.
13. Since, as was shown above, an express authorization of the threat or use of force against the FRY never materialized, the follow-up question would be whether the sequence of Security Council reactions to NATO activities and their results described earlier could be seen as an implicit authorization granted ex post. In favor of a positive reply could be adduced the remarkable degree of "satisfaction", as it were, expressed by the Council in its Res. 1203 (1998) as well as in the Presidential Statement of 29 January 1999, with the Holbrooke agreements and the subsequent successes of the Contact Group - results causally linked to the NATO threat of imminent air strikes. These signs of political approval could, at any stage, have been prevented by the opposition of any permanent member of the Council. But the Russian Federation chose to remain silent. On the other hand, however, Russia had made it clear in the fall of 1998 that it was not ready to follow up on Resolutions 1160 and 1199 by agreeing to the ultimate step of unleashing armed force against the FRY. This position appears not to have changed since then. In face of this, the view that the positive reception by the Council of the results of NATO threats of force could be read as an authorization of such force granted implicitly and ex post, is untenable. But would this not mean that the Security Council has welcomed and endorsed developments brought about in violation of the UN Charter? The question of such illegality vel non (i.e. whether illegal "or not") will have to be looked at, but independently of a final legal judgment, the fact is that the Security Council, as a political organ entrusted to maintain or restore peace and security rather than as an enforcer of international law, will in many instances have to accept or build upon facts or situations based on, or involving, illegalities.
In light of the foregoing it may be concluded that the NATO threats of air strikes against the FRY, not having been authorized by the Security Council, are not in conformity with the UN Charter. In this regard, it makes little difference that the threat has not been carried out until now because Art. 2(4) prohibits such threats in precisely the same way as the actual use of armed force.
14. Let us now look at the interaction between the UN and NATO from the other, i.e., the NATO side. Such a complementary perspective might put the legal deficiency just diagnosed in a mitigating context, so to speak.
Indeed, it is striking to what degree the efforts of NATO and its member states follow the "logic" of, and were expressly linked to, the treatment of the Kosovo crisis by the Security Council. In an address delivered in Bonn on 4 February 1999, US Deputy Secretary of State Strobe Talbott referred to an "unprecedented and promising degree of synergy" in the sense that the UN and NATO, among other institutions, had "pooled their energies and strengths on behalf of an urgent common cause"; as to the specific contribution of the UN he saw it in the fact that "the UN has led its political and moral authority to the Kosovo effort" (Manuscript on file with the author, p. 9). Note the silence as to UN legal authority.
Aside from the absence of a formal authorization discussed above, a reading of the relevant Council resolutions synchronous with the respective pronouncements of NATO (members) might lead an observer to conclude that two sides acted in concert. The most remarkable illustration of this is the way in which SC Res. 1203 (1998) welcomed and endorsed the agreements between NATO/OSCE and the FRY brought about (or at least, helped along) by the unauthorized NATO threats.
If we analyze the reasoning behind the announcement of NATO that armed force would be used if the FRY did not desist from further massive violations of human rights (cf., above all, Secretary General Solana's letter of 9 October 1998 reproduced verbatim above, para 9), we see that it follows two lines: first, it evokes elements of the doctrine of "humanitarian intervention" without calling it by name; but secondly, and much more pronouncedly, it refers to, and bases itself on, the UN Charter and Security Council as well as other UN action concerning Kosovo wherever and in whatever way possible. Above all it draws attention to SC Res. 1160 and 1199 and the fact of FRY non-performance of the obligations deriving from them under the Charter. Further, the letter leaves no doubt that it is the United Nations which represents the international community concerning itself with the Kosovo crisis and formulates the respective community interests. Thus, NATO tries to convince the outside world that it is acting "alone" only to the least degree possible while in essence implementing the policy formulated by the international community/United Nations; filling the gaps of the Charter, as it were, in a way consistent, in substance, with the purposes of the UN. And, as already mentioned, then follows SC Res. 1203 endorsing and building upon NATO action. Similarly, the Presidential Statement of 29 January 1999 welcomes and supports the achievements of the Contact Group following renewed NATO threats after the massacre at Racak - in the words of US Deputy Secretary of State Strobe Talbott, thus lending "its political and moral authority to the Kosovo effort".
Considering this interaction , or "synergy", between the United Nations and NATO, one can agree with the view of then German Foreign Minister Kinkel according to which NATO, in the state of humanitarian necessity in which the international community found itself in the Kosovo case, acted in conformity with the "sense and logic" of the resolutions that the Security Council had managed to pass. The NATO threat of force continued and backed the thrust of SC Res. 1160 and 1199 and can with all due caution thus be regarded as legitimately, if not legally, following the direction of these UN decisions.
15. However, despite all this "synergy", closeness, and interrelatedness of NATO and UN engagements in the Kosovo crisis, there is no denying the fact that a requirement of Charter law has been breached.
This deficiency did play a central role in the deliberations of the Parliament of the Federal Republic of Germany (Bundestag) in mid-October 1998 concerning German participation in NATO air strikes. In these debates, the international legal issues involved were discussed at great length and in considerable depth. The respect for UN Charter law demonstrated throughout the debates was remarkable. Such deference became particularly apparent in the critical discussion of the absence of a Security Council authorization. The German Federal Government, while recognizing this legal flaw, argued that the situation in Kosovo was so desperate as to justify the NATO threat even without UN authorization, in a state of humanitarian necessity leaving no choice of other means. In this regard, differently from the NATO Secretary General, the Government called a spade a spade and spoke of the NATO threat as an instance of "humanitarian intervention". The Bundestag finally approved German participation in the NATO action. But it was emphasized by all voices in favor of such participation, in particular by the Federal Government, that German agreement with the legal position taken by the Alliance in the specific instance of Kosovo was not to be regarded as a "green light" for similar NATO interventions in general. To quote Foreign Minister Kinkel before the Bundestag:
"The decision of NATO [on air strikes against the FRY] must not become a precedent. As far as the Security Council monopoly on force [Gewaltmonopol] is concerned, we must avoid getting on a slippery slope" (Deutscher Bundestag, Plenarprotokoll 13/248, 16 October 1998, p. 23129).
This statement will also be relevant for Part C of the present paper. Whether the denial of precedential value expressed in it, which goes like a red thread through the German parliamentary debate, will have the desired effect, is of course not to be decided by Germany alone. But what is of great importance is the emphasis on the part both of the German Federal Government and the Bundestag put on the singularity of the Kosovo case from which no conclusion on a general rule or policy is to be drawn.
16. To briefly review two more technical issues: To characterize the NATO threat of armed force against the FRY as "humanitarian intervention" does not fit the standard schema, as it were, of this controversial notion. Within the categories of international legal self-help and enforcement, these threats rather constitute reprisals, or countermeasures, intended to induce the FRY to comply with its obligations arising, in a first phase, from general international law and the relevant Security Council resolutions, and, in a second phase, from the Holbrooke Agreements of October 1998. However, such characterization does not change the result of the legal analysis: as mentioned already at the outset, under international law countermeasures (reprisals) involving the threat or use of armed force are prohibited, irrespective of any good humanitarian intention behind them, except if authorized by the Security Council under Chapters VII or VIII of the Charter.
17. The second observation relates to the view that, since a "Rambouillet Agreement" would incorporate the consent of the FRY to the presence of the NATO-led multinational peace force in Kosovo, KFOR would possess a sufficient legal basis also without a Security Council mandate respectively authorization. As mentioned earlier, the Russian Federation appears to regard a UN mandate based on Chapter VI as necessary but also as sufficient for the same purpose.
These views seem convincing only as long as what is envisaged in Kosovo remains within the purview of classic peace-keeping, that is, of a mission not involving the use of armed force. If, however, KFOR is eventually to engage in "robust" peace-keeping (consider, for instance, the issue of disarming the KLA), a legal basis for the presence and activity of KFOR in the form of FRY consent only appears rather fragile, and as a critical departure from former practice. Further, it is not to be expected that in a "Rambouillet Agreement" the FRY will consent expressly to the use of armed force by KFOR, if necessary, against the Yugoslav army and police (consider the extremely guarded formula concerning action by the NATO Extraction Force within Kosovo in the Holbrooke Agreement of 16 October 1998, quoted supra para. 10). In view of the explosive environment in which KFOR is to operate, a Chapter VII mandate in addition to the consent of the territorial sovereign appears highly desirable, to say the least.
18. In conclusion of this Part: Whether we regard the NATO threat employed in the Kosovo crisis as an Ersatz Chapter VII measure, "humanitarian intervention", or as a threat of collective countermeasures involving armed force, any attempt at legal justification will ultimately remain unsatisfactory. Hence, we would be well-advised to adhere to the view emphasized and affirmed so strongly in the German debate, and regard the Kosovo crisis as a singular case in which NATO decided to act without Security Council authorization out of overwhelming humanitarian necessity, but from which no general conclusion ought to be drawn. What is involved here is not legalistic hair-splitting versus the pursuit of humanitarian imperatives. Rather, the decisive point is that we should not change the rules simply to follow our humanitarian impulses; we should not set new standards only to do the right thing in a singular case. The legal issues presented by the Kosovo crisis are particularly impressive proof that hard cases make bad law.
C. NATO's future "strategic concept": from "out of area" to "out of treaty"?
19. At current, NATO is hammering out a new "strategic concept" to define its role in the 21st century. It is to be adopted at the occasion of the Alliance's fiftieth Anniversary Summit in Washington in late April 1999. At the time of writing, the negotiating process is still under way. Most documents relating to the issues raised in the present paper are confidential. Nevertheless, the general direction in which the United States in particular wants the Alliance to move in the future, is quite clear. For instance, in the address already mentioned above, Deputy Secretary of State Strobe Talbott had, among other things, the following to say about what he called the "deepening" of NATO:
"In that project [i.e., the transformation of NATO] ... we must be ambitious. NATO was founded and designed to deal with the Soviet Union and the Warsaw Pact. That state and that alliance are gone, and so is the threat they posed ... This isn't to say that NATO's original task of collective defense is finished or that collective defense is no longer at the core of the Alliance's mission. NATO must maintain its capability enshrined in Art. V of the Treaty of Washington, to deter and if necessary defeat what might be called classic aggression. Such a threat could arise in the future. But it is less likely to do so if NATO remains robust and ready.
However, that is not enough if NATO is to remain relevant to the times. With the end of the Cold War, new, less spectacular, but more diversified threats have arisen. Disputes over ethnicity, religion or territory, can, as we've already seen, trigger armed conflict, which in turn can generate cross-border political instability, refugee flows and humanitarian crises that endanger European security.
NATO must be able to deal with threats like these while maintaining its core function of collective defense."
"[I]n re-inventing NATO, [we] must make hard political choices and a convincing political case with our constituencies. Here, I would submit, is the case we should make about the role and mission of the new NATO: It should start, ... , with Art. V of the Washington treaty - our commitment to collective defense. But we also need to recognize that most current and foreseeable European security challenges involve non-Art. V missions; therefore we need to be better prepared to deal with them as well.
Furthermore, in this increasingly complex and interdependent world of ours, we face a more diverse and far-flung array of threats than we did in Truman and Adenauer's day. The proliferation of weapons of mass destruction and the scourge of terrorism do not fit neatly into our old slogans and concepts like 'The Free World' and 'The Iron Curtain,' or old geographic simplicities that suggested out-dated geopolitical ones - like 'East versus West.' ... This means that as we maintain our ability to defend the territorial integrity of all NATO members, we also need forces, doctrines and communication assets that will allow us, when necessary, to address the challenges of ethnic strife and regional conflict that directly affect our security but that lie beyond NATO territory - as we have done, and are doing, in the Balkans. Also, it is mere prudence and common sense, not excessive ambition, to suggest that a truly modernized Alliance should be able to cope effectively with the all-too-modern challenges posed by the spread of ballistic missiles and WMD [weapons of mass destruction, B.S.]
Some commentators contend that such adaptations require a revision of the North Atlantic Treaty, or believe that we are proposing one. This is untrue. The framers of the Washington Treaty were careful not to impose arbitrary functional or geographical limits on what the Alliance could do to protect its security.
Let me be clear: I am not saying there are no limiting factors on what NATO can and should do. Of course there are. NATO is a consensus organization, and it defines its common interests accordingly - by consensus of its members. We would not go anywhere as an Alliance unless all our members want us to go there. No ally can force others to agree to a NATO action. Under Art. IV of the Treaty of Washington, NATO members will consult when their security is threatened, and together they will determine the appropriate response.
There are also limits implicit in the military capabilities of the Allies themselves. No one is suggesting that we deploy NATO forces, say, to the Spratley Islands."
The Deputy Secretary-General of State concluded this point by saying:
"Nor are we suggesting that NATO act in splendid isolation from - or high-handed defiance of - the United Nations or the OSCE. All NATO Allies are members of both of those organizations. We believe NATO's missions and tasks must always be consistent with the purposes and principles of the UN and the OSCE. We expect NATO and its members will continue to be guided by their obligations under the UN Charter and the Helsinki Final Act.
At the same time, we must be careful not to subordinate NATO to any other international body or compromise the integrity of its command structure. We will try to act in concert with other organizations, and with respect for their principles and purposes. But the Alliance must reserve the right and the freedom to act when its members, by consensus, deem it necessary" (Manuscript, pp. 4,7 f.).
The future role thus envisaged for NATO and the legal-institutional consequences which the proposed new concept implies for the relationship between NATO and the United Nations became apparent also in a "Resolution on Recasting Euro-Atlantic Security" adopted by the North Atlantic (Parliamentary) Assembly in November 1998. In this document, the Assembly,
"[g]uided by the vision that NATO in the 21st century should be an enduring political-military alliance among sovereign states whose purpose is to apply power and diplomacy to the collective defense and promotion of Allied security, democratic values, the rule of law, and peace",
urged member governments and parliaments of the North Atlantic Alliance
b. to accelerate progress in developing capabilities to meet emerging security challenges that may demand both Article 5 and non-Article 5 missions, including meeting the threat of the proliferation of weapons of mass destruction and international terrorism and enhancing power projection, surveillance assets, communications, sustainment, information superiority, and interoperability;
d. to seek to ensure the widest international legitimacy for non-Article 5 missions and also to stand ready to act should the UN Security Council be prevented from discharging its purpose of maintaining international peace and security;
e. to affirm that the inherent right of individual or collective self-defense, also enshrined in Article 51 of the UN Charter, must include defense of common interests and values, including when the latter are threatened by humanitarian catastrophes, crimes against humanity, and war crimes;
......". (NATO Doc. AR 295 SA; on file with the author).
20. Certainly, these formulas will not be the last word as to how NATO will define its future legal-institutional relationship with the universal organization of the UN. But the message which these voices carry in our context is clear: If it turns out that a Security Council mandate or authorization for future NATO "non-Article 5" missions involving armed force cannot be obtained, NATO must still be able to go ahead with such enforcement. That the Alliance is capable of doing so is being demonstrated in the Kosovo crisis. Whether such a course is legally permissible is a different matter. In the November 1998 resolution of the North Atlantic Assembly, two different legal arguments can be identified in this regard. According to the first one, the right of self-defense "also enshrined" in Art. 51 of the UN Charter is to be interpreted so broadly as to include the defense of "common interests and values". This text calls for two brief observations: To start with, the wording might create the impression that self-defense in international law has a broader scope than that foreseen in Art. 51, i.e., that it is justified not only against armed attacks but beyond that specific instance also against other threats. What other menaces the authors have in mind is then made clear: attacks on "common [i.e., NATO] interests and values". To thus widen the scope of self-defense, as a legal institution, is intolerable, indeed absurd from a legal point of view and does not deserve further comment. What might be mentioned, however, is that "respect for the obligations arising from treaties and other sources of international law" [Preamble of the UN Charter) also counts among the values common to NATO member states.
The second argument, contained in para d. of the North Atlantic Assembly resolution, reads like a codification of the course that NATO is steering in the Kosovo crisis. Therefore the legal critique put forward in the preceding Part of the present paper is fully applicable. It is probably no coincidence that the wording chosen for para d. is similar to that of the "Uniting for Peace" Resolution of the UN General Assembly of 3 November 1950, considering the keenness of NATO to have its actions partake of UN legitimacy, so to speak. But of course, according to "Uniting for Peace" it was the General Assembly, as a UN organ comprising all member states, that was to shoulder the burden of maintaining or restoring international peace and security in lieu of the Security Council, not an extraneous, regional organization comprising less than a quarter of UN membership.
21. "Uniting for Peace" was an attempt to fill a gap in the Charter system of collective security during the darkest period of the Cold War (and, of course, of the hot war in Korea). As mentioned earlier, during the same period several fundamental Charter provisions, like Arts. 2(4), 51 and 53, were subjected to "realist" re-interpretations in order to allow individual states as well as regional or defense organizations to return to pre-Charter conditions as regards the use of force. Considering the almost permanent stalemate in the Security Council extending over decades, such Ersatz constructs might have had a certain legitimacy at the time. But today things are different: Since the end of the Cold War, the Security Council is functioning precisely in the way envisaged in 1945. During the decade up to and including 1997, Chapter VII has been invoked no less than 112 times; during the same period the number of vetos cast was extremely small. At this state of affairs to circumvent substantive and, in particular, procedural cornerstones of Charter law is, therefore, much more dangerous to the health of the UN peace system than the aberrations of the past.
22. In view of the Russian position vis-à-vis the prospect of NATO "peace missions" engaging in military enforcement out of area, a new formula has recently been put forward according to which the necessary legal basis for non-Article 5 missions comprising the use of armed force is, "as a rule", to be provided either by a mandate of the UN Security Council or by acting "under the responsibility of the OSCE" (thus the address of German Federal Chancellor Gerhard Schroeder to the Munich Security Forum on 6 February 1999; Bulletin des Presse- und Informationsamts der Bundesregierung No. 8, of 22 February 1999, p. 91).
The alternative thus offered may possibly appease the Russian Federation today but it cannot satisfy those responsible for international law: The OSCE has grown into a regional organization in the sense of Chapter VIII of the Charter. As such, any military enforcement action under its responsibility will require authorization by the UN Security Council according to the rules described earlier. Thus, such peace enforcement under the aegis of the OSCE will not only require the consent of the Russian Federation but also that of the Security Council in accordance with Art. 53 para.1 of the UN Charter. From the standpoint of United Nations law, therefore, the issue is not only how to obtain the consent/participation of Russia in peace enforcement but how to achieve this at the regional level in full conformity with the Charter.
23. Turning to a more subtle, "linguistic", point, it is interesting to observe how certain, particularly US, voices place the United Nations in the company of regional organization or similar institutions. For instance, in the Bonn address of Deputy Secretary of State Strobe Talbott repeatedly referred to already, we find the following observation:
"We started [the] process of institutional joint action in Bosnia, and we have built on it in Kosovo. We have seen five bodies - NATO, the EU, the OSCE, the United Nations and the Contact Group develop an unprecedented and promising degree of synergy. By that I mean that these disparate but overlapping organizations have pooled their energies and strenghts on behalf of an urgent common cause." (Manuscript, p. 9).
In the current debate, the formula of the UN and relevant Western regional institutions "mutually reinforcing each other" seems to have gained acceptance. To the present author, this way of describing the relationship of the institutions mentioned is to be treated with great caution. On the one hand, it is undeniably reassuring to see the "political authority" of the UN emphasized by Mr Talbott relying on and backed up by muscle of more dynamic regional institutions. But on the other hand, in political as well as legal discourse, this view could (is meant to?) have the effect of putting the United Nations on the same hierarchical level as these institutions, and thereby relativizing the legal primacy due to the obligations flowing from the UN Charter (cf. on Charter Art. 103 supra para 6). In most quarters of the world, including Germany, it is accepted that the UN Charter is not just one multilateral treaty among others but an instrument of singular legal weight, something akin a "constitution" of the international community. This status of the Charter should not be prejudiced by NATO.
24. In his Bonn address, the US Deputy Secretary of State spoke of the hard political choices to be made "in re-inventing NATO" (cf. supra para. 19). In the same vein, however, he denied that such re-invention would require a revision of the North Atlantic Treaty (ibid). In the present paper, focusing on UN law, only a few brief comments can be made in this regard.
If we compare the practices of amendment and revision of the constituent instruments of international organizations followed in general with the capacity of NATO to absorb, as it were, new roles and missions without any formal changes of the original founding treaty being considered necessary, this flexibility is astonishing already at present, even before the imminent "re-invention". Thus, quite aptly, a former member of the German Constitutional Court once spoke of the NATO Treaty as "a treaty on wheels".
At the level of international law, the power of member states of international organizations to develop, amend and revise the constitutive instruments of these institutions by mutual agreement or subsequent practice are far-reaching. In the case of organizations working on the basis of majority decisions, the legal limits to such changes will be debated, in some instances adjudicated, in terms of doctrines like those of ultra vires (acts going "beyond authority") versus "implied powers". These issues will hardly arise in the practice of international organizations which, like NATO, arrive at decisions by unanimous vote or employ the method of consensus. Hence, from that point of view almost any transformation of NATO is feasible as long as all members agree, also without a formal revision of the constituent treaty instrument. In this regard, Mr Talbott's remarks are perfectly correct. However, no unanimity of NATO member states can do away with the limits to which these states are subject under peremptory international law (jus cogens) outside the organization, in particular the higher (cf. Art. 103) law of the UN Charter on the threat or use of armed force. NATO is allowed to do everything that is legally permissible but no more. Legally, the Alliance has no greater freedom than its member states. This point has been the main thrust of the present paper.
25. However, the question of legal limitations to the transformation of NATO leads to a further issue: that of the democratic legitimacy of such "re-invention". The acuteness and topicality of this question may vary from country to country. In the Federal Republic of Germany it has been at the heart of several great constitutional controversies ultimately resolved by the Federal Constitutional Court (Bundesverfassungsgericht). In these cases, one of the decisive issues was to what point alterations of existing obligations deriving, inter alia from the NATO Treaty, or the creation of new such obligations could be effected by way of "soft law", for instance by decisions of the North Atlantic Council, while still being covered by the original approval of the NATO Treaty by the Bundestag almost half a century ago. The Court was prepared to go quite far in allowing the dynamic evolution of NATO to escape the prerequisite of new parliamentary approval but it did indicate certain borderlines, among them, in its 1994 Judgment on the constitutionality of German participation in NATO/WEU action against the FRY in the Mediterranean and in UNOSOM II, the conformity of all these activities with the rules and procedures of the UN Charter as the overarching, universal system of collective security. Hence, in view of the strong emphasis put on the singular, exceptional character of, and the express denial of precedential value, to, the use of force by NATO against Yugoslavia threatened in the fall of 1998, by the German Government as well as the Bundestag, a general authorization for a "new" NATO to proceed to military enforcement out of area without UN Security Council assent, if necessary, might well transcend the limits set up by the German Basic Law. The German constitution provides for several procedures to have this question adjudicated by the Karlsruhe Court. In sum, there is reason for caution here; also because the Bundesverfassungsgericht has demonstrated its willingness to uphold the constitutional requirements for German participation in international organization and supranational integration also against heavy political headwinds (cf. the 1993 Maastricht decision).
26. As the Background Paper for the Roundtables prepared by UNA-USA's Jeffrey Laurenti puts it so well, some voices in the current debate fear
"that abandonment of the Security Council's asserted monopoly on determining the lawful use of force against others, except in self-defense, could put the world community on a slippery slope of competing claims of 'rights' to intervene - with the potential consequence of escalating hostilities rather than resolving them. Some see a disquieting historical precedent for alliance self-authorization for use of force in the Warsaw Pact's intervention in Czechoslovakia in 1968 (an intervention that was, to be sure, directed within its own membership). Some warn that such fragmentation of lawful authority on use of force could prompt the emergence of counter-alliances among those fearful of high-handed interventionism by an overweening Western alliance. If the U.N. has too many inhibitions about the use of force, these worry, NATO under U.S. pressure may have too few."
The present author shares these concerns. He feels in good company, in view of the vehemence with which the German Government as well as the Bundestag emphasized in the October 1998 debate that the decisions taken by NATO on Kosovo must not be seen as a precedent leading to a general right of the Alliance to intervene militarily out of area without a Security Council mandate/authorization. The genie of NATO "self-authorization" must not be let out of the bottle. Apparently, this is the opinion of other NATO member governments as well.
The law of nations being a horizontal system, claims to international legality and admissibility put forward by its actors, be it states or organizations, are prone to have a boomerang effect. True, at current NATO is the only regional institution capable of countering (self-defined) security challenges effectively, if necessary by military means. But things might change in the future, and other states or new alliances in Europe or in other parts of the world might then also proclaim to "stand ready to act" without the Security Council, or affirm to defend certain "interests and values" by armed force (to use the language of the November 1998 North Atlantic Assembly resolution). Reference to 1968 does not seem to be far-fetched: When the Soviet Union followed up on the Warsaw Pact intervention in Czechoslovakia with the "Brezhnew doctrine" condemnation by the West, particularly the United States, both of the invasion and the general concept justifying it was resolute and strong; statements about the invalidity of such inter se derogations of fundamental Charter precepts abounded. One wishes that some of the respect paid to the UN Charter at this sad occasion would also mark the debate on NATO's strategic concepts for the 21st century. The fact also mentioned in the UNA Background Paper, that the Warsaw Pact's intervention in 1968 was directed within its own membership, is not designed to quell legal concerns - on the contrary: the (unauthorized) threat or use of force against a state which is not a member of a certain international organization and which might therefore not share this organization's "common interests and values", appears even more indefensible than force employed within the organization's circle of members.
In this regard, the announcement that the new NATO is to become more instrumental in meeting the threat of proliferation of weapons of mass destruction is of a particularly "extrovert" nature, considering, as the UNA Background Paper does, that, aside from its nuclear-armed members, no country in NATO's own region have programmes for development of these weapons. As the Background Paper also mentions, the international treaty regimes controlling these weapons all provide for the Security Council to enforce them. In light of this, it is to be hoped that a future role of the Alliance in this field would be linked to the already existing one of the Council by foreseeing the prerequisite of a Security Council mandate for any NATO action assuming the nature of enforcement.
D. Concluding remarks
27. It is disquieting to see how the UN/NATO relationship has changed within a few years. In 1994, at its Brussels summit, NATO had declared its readiness to cooperate with the United Nations in "peacekeeping and other operations under the authority of the U.N. Security Council". In December 1997, the Final Report of a high-level International Task Force on the Enforcement of U.N. Security Council Resolutions regarded as "doubtful that NATO would consider taking enforcement action, at least out of area, without Security Council authorization" (Words to Deeds: Strengthening the U.N.'s Enforcement Capabilities, p. 45).
Less than a year later these doubts were dispelled. In the field under consideration here, NATO action has moved from full collaboration with the UN in both peace-keeping and enforcement in Bosnia to enforcement action in place of the UN still authorized by the Security Council to implement the Dayton Agreement, and now in the context of Kosovo to enforcement in place of the UN without such authorization. For some, this last-mentioned schema is now generally to be embedded in NATO's new "strategic concept". According to the UNA Background Paper, this development suggests a turn in the UN/NATO relationship from mutual reinforcement (cf. on this phrase supra para. 23) to fundamental competition:
"Under such a scenario, the organization in danger of sliding into irrelevance seems to be not NATO but the United Nations. In a political variant of free-market competition, the U.N. Security Council risks disappearing as a serious security body as the genuinely powerful prefer to work through a more convenient instrument. All that the Security Council can offer is 'legitimacy,' in the view of some Western governments - and NATO may provide the desired multilateral cover, with less obstruction."
Such a development would be deplorable. In the words of UN Secretary General Kofi Annan:
"[P]eacekeeping is not, and must not become, an arena of rivalry between the United Nations and NATO. There is plenty of work for us both to do. We work best when we respect each other's competence and avoid getting in each other's way" (address at Georgetown University on 23 February 1999; UN Doc. SG/SM/6901, PKO 80).
28. The present paper has attempted to demonstrate that, while the threat of armed force employed by NATO against the FRY in the Kosovo crisis since the fall of 1998 is illegal due to the lack of a Security Council authorization, the Alliance made every effort to get as close to legality as possible by, first, following the thrust of, and linking its efforts to, the Council resolutions which did exist, and, second, characterizing its action as an urgent measure to avert even greater humanitarian catastrophies in Kosovo, taken in a state of humanitarian necessity.
The lesson which can be drawn from this is that unfortunately there do occur "hard cases" in which terrible dilemmas must be faced and imperative political and moral considerations may appear to leave little choice but to act outside the law. The more isolated these instances remain, the smaller will be their potential to erode the precepts of international law, in our case of the UN Charter. As mentioned earlier, a potential boomerang effect of such breaches can never be excluded but this danger can at least be reduced by indicating the concrete circumstances that led to a decision ad hoc destined to remain singular. In this regard, NATO has done a rather convincing job. In the present author's view, only a thin red line separates NATO's action on Kosovo from international legality. But should the Alliance now set out to include breaches of the UN Charter as a regular part of its strategic programme for the future, this would have an immeasurably more destructive impact on the universal system of collective security embodied in the Charter. To resort to illegality as an explicit ultima ratio for reasons as convincing as those put forward in the Kosovo case, is one thing. To turn such an exception into a general policy, is quite another. If we agree that the NATO Treaty does have a hard legal core which even the most dynamic and innovative (re-)interpretation cannot erode, it is NATO's subordination to the principles of the United Nations Charter.
To end with a lighter note: All of us leave the path of virtue from time to time. But one should not announce such a dangerous course as a general programme for the future, especially at one's fiftieth birthday.
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NATO, the UN, and the Use of Force Policy Roundtables New York City, March 11, 1999
Rapporteur's Report Bettina Clark, Rapporteur
On 11 March 1999, UNA-USA sponsored a roundtable discussion at its New York headquarters on "NATO, the U.N. and the Use of Force." The participants in the off-the- record forum included representatives to the United Nations of NATO and Security Council member states, policy experts, U.N. officials, and journalists. The issues were framed by two papers especially prepared for the discussion, presented by Ivo Daalder of the Brookings Institution and Bruno Simma of the University of Munich.
Daalder argued that NATO has become the "go to" organization for addressing security problems in and around Europe, and at times it will prove necessary for NATO to act without U.N. authorization in defense of its interests and values. Simma argued that international law--defined in its most solemn and universal form in the U.N. Charter--is quite unambiguous in barring any threat or use of force, or any "enforcement action" at all, except with the authorization of the Security Council. Both presenters acknowledged Europeans' unease with a view that a powerful alliance is to act with force anywhere on any issue of concern. One presenter appealed to religious traditions to explain how NATO allies squared their Kosovo authorization with the U.N. Charter: A "Catholic" approach that acknowledges it as a "sin" that violates the moral code, to be repented and not repeated; a "Calvinist" approach that stretches the peculiar circumstances to explain away the action as not really a transgression; and an "atheistic" approach that laughs off the moral/legal commandments of restraint as mumbo-jumbo.
The discussion that followed centered on four concerns: (1) the current debate surrounding NATO action in Kosovo; (2) the arguments in law surrounding the necessary authority to summon the use of force; (3) the current state of the Security Council as an effective international actor; and (4) the struggle to find alternatives to Security Council authorization that could still provide international legitimacy for the use of force.
The Kosovo crisis was the most immediate case precipitating the tension between NATO and the Security Council, so much of the discussion was linked to it. Some participants argued that NATO's move to threaten and possibly use force against Yugoslavia over Kosovo should be regarded as unique, brought about by a particular set of circumstances in Europe. They argued that there was an extraordinary and urgent need for action there out of humanitarian concerns for the suffering of civilians who were being made refugees, as the Security Council itself had recognized in adopting Resolution 1299--but that the politics within the Security Council at the moment prevented it from reaching a decision on how to give effect to its demands. It therefore should not be used as a precedent for future action.
Others argued that the threat of military strikes in Kosovo was indeed a precedent, and to view it as otherwise is unrealistic. They argued that, if they are faced with another example of widespread suffering (at least in Europe), people are not likely to forget that Kosovo demonstrated how to bypass blockages in the Security Council. They said that Kosovo almost certainly will be invoked as a significant departure point for the evolution of international law regarding military intervention.
Some participants offered a direct critique of NATO and the ambition of some of its members for a new strategic concept under which the 19 members of NATO can launch interventions utilizing its forces that others would think unnecessary in the post-cold war world.
Some discussants insisted that it is impractical to think of use of force in purely legal terms. Politics and power are more supple than that, and blind adherence to the apparent letter of the law may kill its spirit when populations are in danger. They argued that all new ground in international relations has been the result of an evolution beyond old legal thinking. One cannot justify to the general populace inaction in times of moral crisis based upon laws of procedure. Therefore, the use of force should be considered on a case by case basis. International law must evolve to meet international practice. But even these did not dismiss law as entirely inappropriate, recalling Thucydides' account of Athenian hybris in proclaiming that their might made them right.
Other discussants stressed the importance of strictly adhering to international law on something as fundamental as use of force. If we allow the genie of self-legitimizing groups out of the bottle, any regional alliance or even individual state will be free to drape self-interested designs in humanitarian rhetoric as it circumvents the Security Council, and the fragile structure of world collective security may come tumbling down. Several participants pointed to Africa as a region with high numbers of people at risk in massive humanitarian crises--but the same states pushing NATO actions in Kosovo block the Security Council from taking any such action in Africa. Without the Security Council, there is no internationally recognized body that can determine if an action is legitimate.
Those sympathetic to NATO's autonomy on use of force retorted that NATO should act where it can: It is no excuse to say that because NATO can't act in Africa that it should not act in Europe. If regionally based groups in Africa choose to undertake humanitarian interventions in Africa, that would be better than to do nothing.
Discussion of the Security Council centered on the political, rather than the legal, dimensions of NATO taking action outside of the United Nations. They argued that there are distinctive political considerations to both NATO and the U.N. One participant noted that at least one NATO member--France--may feel it has relatively less influence in NATO than on the Security Council in determining how force can be used, since its Council veto may have more political viability than breaking a NATO consensus for action. For countries like the U.S. that are influential in the alliance but may encounter some resistance on the Council, acting through NATO may be the preferred way to further their international agenda.
Several discussants acknowledged that some of the Security Council's most vociferous critics of a runaway NATO, through recent decisions that have paralyzed the Council, have weakened its claim to exclusive authority on intervention--particularly in light of recent vetoes that are driven by domestic political considerations, like the one that killed the U.N. peacekeeping force in Macedonia.
Alternatives to a paralyzed Security Council
If the Council's potential for veto paralysis makes unrealistic the U.N. Charter's grant to the Security Council of a monopoly on use of force, some discussants suggested, the solution is to put in place a fallback mechanism to insure that crises of international or humanitarian security are addressed. But is the best fallback mechanism for disparate regional organizations to go their own way?
The 1950 "Uniting for Peace" resolution, referenced in the Simma paper, was cited by a few discussants as a prior example of an alternative to the Security Council, namely the U.N. General Assembly, stepping in to authorize action where consensus could not reached under the veto-warped rules of the Security Council. This, said one, at least had the benefit of worldwide representativeness legitimacy rather than a narrow partisan character. Others noted that the Assembly acting under "Uniting for Peace" would today be even more unappealing to its original sponsor than the Security Council's paralysis.
One participant argued that, as the U.N. is becoming weaker, the onus of responsibility to maintain international peace and security has fallen on the shoulders of the United States and NATO. If the United Nations can't act, then some other country must. In this view, NATO, by its actions in Kosovo and elsewhere, is working in the spirit of the U.N.--not trying to draft new international legislation.
In his paper, Daalder offers the Charter of Paris as an example of an international declaration setting human rights standards that can legally justify NATO military action without the explicit authority of the Security Council. Other participants vehemently rejected that line of argument, noting that the "Charter" of Paris--in contrast to the U.N. Charter--was a declaration ratified by no legislature and without legally binding effect, and that the very same document specifically disclaimed forceful intervention in states' internal affairs.
Discussants who favored keeping an option to use force outside of explicit U.N. authority argued that this might be the only way to change international policy in regards to intervention. Some suggested that the way to approach it is to build precedents that will shape legislation later, thereby letting international law catch up with international practice. If the U.N. is, for whatever reason, not doing what its mission entails, they argued, then other organizations will. But others asked, if international practice becomes one of reverting to pre-Charter conditions and might-makes-right behavior, will we be moving international security and moral responsibility forward or backward?
Claudio Bisogniero First Counsellor Permanent Mission of Italy to the United Nations
Christopher Coleman Chief, Policy and Analysis Unit Department of Peacekeeping Operations United Nations
Cui Tiankai Minister Counsellor Permanent Mission of the People's Republic of China to the United Nations
Ivo Daalder Brookings Institution
Giulio Fraticelli Military Advisor United Nations
Richard Gardner Morgan, Lewis & Bockius, LLP
Jeremy Greenstock Permanent Representative Permanent Mission of United Kingdom to the United Nations
Gerhard Henze Deputy Permanent Representative Permanent Mission of Germany to the United Nations
John Hirsch Vice-President International Peace Academy
Dezsö Horváth Minister Permanent Mission of the Republic of Hungary to the United Nations
Jeffrey Laurenti Executive Director, Policy Studies UNA-USA
Sergey V. Lavrov Permanent Representative Permanent Mission of the Russian Federation to the United Nations
Walter Lindner Counsellor Permanent Mission of Germany to the United Nations
William Luers Chairman and President UNA-USA
Chantal de Jonge Oudratt Associate Carnegie Endowment for International Peace
Frederick F. Roggero Military Fellow Council on Foreign Relations
Michael Shuster National Public Radio
Bruno Simma Professor of International Law Ludwig Maximilians University of Munich International Law Commission
Pascal Teixeira da Silva Counsellor Permanent Mission of France to the United Nations
Shashi Tharoor Executive Office of the Secretary General United Nations
Danilo Türk Permanent Representative Permanent Mission of the Republic of Slovenia to the United Nations
Andras Vamos-Goldman Counsellor Permanent Mission of Canada to the United Nations
Peter van Walsum Permanent Representative Permanent Mission of the Kingdom of the Netherlands to the United Nations
Robert Watson U.N. Correspondent British Broadcasting Corporation
Joanna Weschler United Nations Representative Human Rights Watch
Georg Witschel Legal Advisor Permanent Mission of Germany to the United Nations
Rapporteur: Bettina Clark UNA-USA
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NATO, the UN, and the Use of Force Policy Roundtables Washington, DC, March 12, 1999
Rapporteur's Report Timothy O'Loughlin, Rapporteur
On March 12, 1999, UNA-USA and the Carnegie Endowment for International Peace hosted a luncheon roundtable discussion in Washington to air the issues driving the debate in the North Atlantic Treaty Organization over a new "strategic concept" for the alliance. Anthony Lake, former National Security Advisor and professor at Georgetown University, chaired the forum on "NATO, the U.N. and the Use of Force." Ivo Daalder of the Brookings Institution and Bruno Simma of Ludwig-Maximilians University of Munich presented papers prepared for the roundtable.
Alternatives to U.N. Force Monopoly
Some participants asserted that the fundamental argument for NATO's autonomy in using the military power that it indisputably possesses rests on a simple premise: When those that are capable feel the need to act, NATO can allow them to do so. In contrast, they may find their hands tied by an ineffective Security Council. A self-assertive NATO, these argue, can serve to facilitate needed military intervention when the U.N. will not. Other participants disagreed on the legality and even utility of such a NATO mandate, suggesting it could open a Pandora's box. Does the "gain" in being able to use military power more freely in Kosovo today outweigh the potential loss to world order when any group of states can claim authority to use force against another?
One presenter insisted that the Security Council is now consistently divided, with two permanent members (the U.S. and U.K.) usually ranged on one side, two others (Russia and China) on another, and France swinging both ways, wherever it perceives its advantage. A NATO alliance of 19 members would have enough diversity and legitimacy to bypass such a balkanized Security Council and get things done. Others questioned the premise, noting the frequency with which the Council has agreed even on Chapter VII (coercive) measures since 1990, which the occasional impasse over use of force on Iraq or Kosovo should not obscure.
Another presenter argued vigorously that there could be no ambiguity about what international law requires in this respect, although he had been warned that he was coming to a town where not much credence was attached to international law. The U.N. Charter specifically forbids regional organizations to take any "enforcement action...without the authorization of the Security Council." But what, asked another participant, is the recourse when there is an unquestionable case of genocide on the most heinous scale (e.g., Rwanda)--and a major power blocks Security Council action? In this strict-construction Charter framework, does one permanent member's veto excuse other states from fulfilling their obligations under the genocide convention?
One participant from a country occupying a permanent Council seat volunteered that, if unwieldy Security Council decision-making procedures are seen as the problem, Charter amendment might be possible. Another discussant suggested that, if there is such openness to Charter reform, perhaps the veto provision should be modified to reflect changing power realities--a prospect no more impossible than another proposal floated in the discussion, that NATO should abandon its own rule of unanimity.
Participants pondered the circumstances under which nations might act to bypass a temporizing Security Council. Most agreed that protection of human life from brutal, repressive forces warranted forcible intervention, and if the Council wouldn't do it then NATO should.
The Role of NATO
One presenter, echoed by several other participants, affirmed that certainly within Europe, NATO inevitably had to assume a position of military leadership. No one else, the U.N. included, can do so. Moreover, given the repeated evidence that the U.N. has been unable to react effectively to crisis situations, another organization will necessarily have to assume that role. The direction of U.S. foreign policy is emblematic of the growing support for alternatives to the U.N.: The United States is plainly reluctant to act militarily in Europe except as part of a NATO operation--and it is simply unwilling to do so for the U.N.
However, noted another participant, it is equally plain that the European members of NATO feel a high level of discomfort with the notion of NATO as a self-directed military machine. One critic of autonomous NATO enforcement underscored that, even in the case of Kosovo, the leading European governments have taken pains to underscore that their consent to NATO use of force was not a precedent for a generalized right to intervene, and have pointed to the Security Council's own demands on Yugoslavia. This action could not be considered a legal precedent for a new strategic approach in opposition to the U.N. Charter.
A European discussant found wisdom in the Charter's exclusive conferral on the Security Council of authority for military measures: When it comes to authorization of military force, there needs to be a wider consensus, one that includes countries outside of NATO. In this view, cooperation within and across organizations is essential to prevent snowballing conflict. In this context, this participant suggested, perhaps the "Uniting for Peace" precedent might be worthy of revival.
One government representative decried the seeming preoccupation in the discussion with pitting NATO against the Security Council. This missed the point, he said, which was the need to marshal the strengths of every institution to promote security in the European region.
Participants largely agreed that the Kosovo issue and how it eventually plays out will have a major impact in defining how far NATO goes in expanding its mandate beyond the historical one of collective self-defense. For many, the U.N.'s apparent unwillingness to follow up its demands on Belgrade with effective action has sent a signal that another institution has to pick up the slack. The Belgrade government's assault on the population of Kosovo, as one participant put it, has effectively deprived it of a claim to sovereignty that the rest of the international community need feel bound to respect, and only NATO seems willing and able to inject the necessary force.
When one participant summoned memories of the air campaign against Bosnian Serbs in 1995, there was a flurry of discussion over whether the air attacks had Security Council authorization--a discussion that was not without irony for participants. Some, who generally favored NATO's freedom to bomb in Kosovo, claimed the 1995 air campaign was without Council authority and thus should be considered (though not regretted) as illegal; others, who challenged NATO's right to attack Yugoslavia without Council sanction, insisted the Council had long since provided authority to use force, which took operational form in the controversial "dual-key" U.N./NATO control mechanism.
Nancy Bearg Dyke Director, International Peace and Security Program The Aspen Institute
Hans Binnendijk Director Institute for National Strategic Studies National Defense University
Charles Boyd National Security Study Group
Ivo Daalder Brookings Institution
Jonathan Dean Advisor on International Security Issues Union of Concerned Scientists
Steven Dimoff Vice President, Washington Office UNA-USA
Volker Fey Embassy of Germany
Elaine French Junior Fellow, Managing Global Issues Carnegie Endowment for International Peace
Peter Fromuth Policy Planning Staff U.S. Department of State
Toby Gati Senior International Advisor Akin Gump Strauss Hauer & Feld LLP
Philip Gordon Director, European Affairs NATO Office National Security Council
Benedikt Haller Counsellor Embassy of Germany
Morton Halperin Director, Policy Planning Staff U.S. Department of State
David Kramer Associate Director, Russia/Eurasia Program Carnegie Endowment for International Peace
Anthony Lake Distinguished Professor School of Foreign Service Georgetown University
Jeffery Laurenti Executive Director, Policy Studies UNA-USA
Sergey Lavrov Permanent Representative Permanent Mission of the Russian Federation to the United Nations
James Leonard National Council UNA-USA
Philip Merrill Chairman and Publisher Capital Gazette Communications
James Moody President InterAction
Marietheres Muhle Embassy of Germany
Chantal de Jonge Oudraat Associate, Managing Global Issues Carnegie Endowment for International Peace
Daniel Schorr National Public Radio Senior News Analyst
William Shapchott Counsellor Embassy of Great Britain
Bruno Simma Professor of International Law Ludwig Maximilians University of Munich International Law Commission
Timothy O'Loughlin Rapporteur
1. The author completed an internship with the ICTY in the Hague. He has just completed the combined LL.B.-M.P.A. programme at Dalhousie University and will be assuming a post with the Government of Canada shortly. Nothing in this opinion should in any way be deemed indicative of the position of either the ICTY or the Government of Canada.
2 In Prosecutor v. Dusko Tadic a/k/a "Dule" Decision on
the Defence Motion for Interlocutory Appeal on Jurisdiction [2 October
1995] ICTY AC, the Appeal Chamber held that the ICTY was established pursuant
to Article 41. However, the wording of the decision is inclusive of Article
41 rather than exclusive of Article 42. Moreover, Resolution 827 sets the
authority for the ICTY on the basis of Chapter VII and not upon any particular
articles therein. Finally, this decision predates the first of a series
of cases where United Nations and NATO forces employed armed force to arrest
ICTY indictees in Bosnia. Thus far, the Tribunal has viewed all such arrests
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5- Frederic L. Kirgis, THE KOSOVO SITUATION AND NATO MILITARY ACTION, ASIL Insight [American Society of International Law] March 1999
When the Yugoslav government refused to sign the American-drafted peace accord for Kosovo, and after repeated warnings to Yugoslavia, NATO forces have begun an aerial bombing campaign against Yugoslav military targets. The question arises whether international law permits the use of armed force against Yugoslavia under these circumstances.
Kosovo is a province of Yugoslavia, not an independent state. Even though about 90 percent of its population is ethnic Albanian, the international community has not supported a right of secession for Kosovo. Since Kosovo remains a part of Yugoslavia in fact and in law, the current military action raises questions of external intervention in civil strife. In this case, though, the civil strife is likely to endanger peace and security in neighboring states and has already created large refugee flows into those states.
Until the advent of the United Nations, international law had little to say about what a government did regarding its own citizens in its own territory. In the U.N. era, it has become well established that governments do not have a free rein to mistreat their own citizens, and a wide range of international human rights standards has been established to prevent or rectify such mistreatment. The right of self-determination is one of the currently-recognized human rights, but it has not normally been regarded as a right of an ethnic or other minority to secede. It does, however, protect certain civil and political rights of ethnic groups as well as of individuals. The international community has treated it as applicable to the Kosovo situation, in the form of a right to increased autonomy within the Yugoslav state. But even if a central government, such as the government in Belgrade, is depriving a group of its right of self-determination, that alone does not permit intervention by external armed forces.
The United Nations Charter provides a mechanism for legitimating NATO armed intervention. Regional arrangements, such as NATO, are expressly permitted under Chapter VIII of the Charter. But Chapter VIII, Article 53, prohibits enforcement action (as distinguished from action in self-defense) by regional agencies without the authorization of the U.N. Security Council. In 1962 the International Court of Justice said that enforcement action is coercive action in the context of Chapter VII, which deals with threats to the peace, breaches of the peace and acts of aggression. If the NATO action is designed to coerce the Yugoslav government to accept the allied peace plan for Kosovo, it would require Security Council authorization under Article 53. On the other hand, if the NATO action is designed to ensure humanitarian relief for the people of Kosovo or merely to help them to repel armed aggression, one could argue that Security Council authorization may not be necessary.
In 1998, Security Council resolution 1199 expressed deep concern for the deterioration of the humanitarian situation in Kosovo, including reports of violations of human rights and of international humanitarian law, and emphasized the need to ensure that the rights of all inhabitants of Kosovo were respected. By invoking Chapter VII of the U.N. Charter, the Council implicitly found that there was a threat to the peace, breach of the peace or act of aggression of an international character. It demanded (among other things) that Yugoslavia withdraw its security units used for civilian repression, enable effective international monitoring to be done in Kosovo, facilitate the safe return of refugees and displaced persons, and make rapid progress toward a political situation in Kosovo. The Council also called upon U.N. member states to provide adequate resources for humanitarian assistance in the region.
Resolution 1199 thus expressly acknowledged that there is a situation in Kosovo of the nature covered by Chapter VII and recognized the role Yugoslav forces have played in creating the humanitarian crisis in the province, but it did not expressly authorize forceful intervention. The U.N. Secretary General, Kofi Annan, has said that in his view only the Security Council has the authority to decide that the internal situation in any state is so grave as to justify forceful intervention. The clear implication is that if any state or alliance, such as NATO, could intervene on its own, the U.N. system of collective security could be endangered or destroyed.
There are two possible arguments for intervention without Security Council authorization, but they both require an extension of recognized principles beyond the limits heretofore applied to them. The first is based on a limited right of humanitarian intervention to aid groups held captive or subjected to grave physical danger. The justification for humanitarian intervention is strongest when the intervening states are acting to protect their own nationals, as in the case of Israel's 1976 raid to release its nationals being held hostage at the airport in Entebbe, Uganda. The extended argument would be that in exceptional cases where peaceful means of alleviating a humanitarian crisis inflicted by a state on its own nationals have failed, and where the Security Council has recognized a threat to international peace, forceful intervention would be lawful so long as it is proportional to the situation.
The second argument is based on an extension of the right of collective self-defense. That right is recognized by Article 51 of the U.N. Charter, if the Security Council has not acted to deal with an armed attack. The right of self-defense, though, has traditionally been regarded as legitimate only in the case of an armed attack on a state. Even if the Kosovo authorities have requested self-defense help from NATO, since Kosovo is not a state under international law, the right of collective self-defense would have to be stretched to apply here. The argument for stretching it would stress the international community's recognition of the Kosovars as an entity entitled to a substantial measure of autonomy (and thus entitled not only to defend itself, but also to request others to help, so long as the help is proportional to the situation).
The purpose of ASIL Insight is to provide concise and informed
background for developments of interest to the international community.
The American Society of International Law does not take positions on substantive
issues, including the ones discussed in this Insight.
About the Author: Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.
© 1999 American Society of International Law copyright statement
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ISS 325 War & Revolution pages:
link to CYBER-READINGS-1 page
link to CYBER-READINGS-2 page
link to CYBER-READINGS-3 page
link to CYBER-READINGS-4 page
link to War & Revolution photo page
link to AGGRESSION page
link to ARMS CONTROL & DISARMAMENT page
link to IRAQ-BOMB-98 page
link to NATIONALISM and ETHNIC CONFLICT page
link to PROTRACTED INTERNAL WAR page
link to REVOLUTION & INTERNAL CONFLICT page
link to WAR page
link to Terrorism and Counter-Terrorism page
link to AFRICA: GREAT LAKES page
ISS 325 War & Revolution lecture
Table of Contents i
Introduction: States/Sovereignty/Blood/Weak States 1-24
Just War/War Crimes/Genocide 25-50
Human Aggression 51-81
Ethnic Conflict/Nationalism 103-130
Revolution/Internal Conflict 131-172
U.N./Peacekeeping/Humanitarian Intervention 193-207
Nuclear Weapons/Weapons of Mass Destruction 208-219
Old Tests 1998/1, 1998/3 220-228
Syllabus and Course Information 229-234
PLS 461 Refugees, Displaced Persons,
link to Refugees, DPs, Exiles photo page
link to KOSOVO: Ethnic Cleansing redux page
link to paper: The Refugee Experience
link to paper: Older Refugee Settlements in Africa
link to paper: Repatriation Under Conflict
link to 1996 paper: Regional Efforts to Address Refugee Problems in the Developing World
link to 1997 paper: Regional Efforts to Address Refugee Problems
link to paper: Refugee Repatriation, Return and Refoulement During Conflict 1997