BITS Research Report 00.4
December 2000


Humanitarian Intervention, NATO and International Law

Can the Institution of Humanitarian Intervention Justify Unauthorised Action?

Clara Portela

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2. Could the Establishment of the Institution of Humanitarian Intervention ‘Legalise’ Unauthorised Action?

While it cannot be argued that at present a legal basis exists for humanitarian interventions outside the UN-umbrella, a number of indices show that that the concept of forcible humanitarian intervention is winning legitimacy.
It has been proposed that NATO could try to promote the establishment of this institution55. This argument is valid. One of the special characteristics of international law is that violations of law can lead to the formation of a new law, so that an international custom could be intentionally created. NATO could attempt to modify the legal system in order to overcome the legitimacy problem.56

Certain statements by officials point in this direction. As shown above, UK Prime Minister Blair has vigorously defended the idea of humanitarian intervention, even formulating guidelines. For German Defence Minister Scharping international law should be further developed so that massive human rights violations could be considered as a legitimate basis for military intervention.57

Further signs allow to diagnose that the concept of forcible action on humanitarian grounds is winning legitimacy. Only six years ago, the European Parliament invited EU members to contribute to the establishment of a right of humanitarian intervention in a majority resolution.58 UN Secretary-General Annan seemed to condone the Kosovo intervention in an address to the Commission on Human Rights in Geneva with the following words: "[E]merging slowly, but I believe surely, is an international norm against the violent repression of minorities that will and must take precedence over concerns of sovereignty."59 Also the UN Special Representative of the Secretary General for Kosovo Bernard Kouchner has repeatedly stated that Kosovo is "the laboratory of a new international right".60
It appears that also among the ranks of legal experts the acceptance of the notion of humanitarian intervention is growing. Most legal experts condemned the Kosovo operation, but their reaction has neither been unanimous nor categorical. Some scholars reject any justifiability of the intervention outright, qualifying the intervention as a clear aggression and claiming that it is unacceptable from a legal perspective.61 It has also been argued that the intervention can be justified on an exceptional basis, but that any precedential character should be denied.62 Not many authors contend that the intervention was in conformity with international law.63

2.1. Exploring Ways of Establishing the Notion of Humanitarian Intervention

There are at least three conceivable ways for NATO to promote the establishment of this institution: by codification, by practice and through an authorisation mandate from the UN Security Council to regional organisations.

2.1.1. Establishment by practice or by codification

A possibility is to codify a checklist of criteria in the form of an international treaty allowing for the conduct of humanitarian interventions. This option clearly enjoys much wider acceptance among advocates of this institution than its establishment by practice. Experts invariably coincide in the need for codification of this kind of interventions in order to avoid its risks and to promote its long-term acceptance.

First, a clear definition would be needed of which human rights violations and what extent they would have to reach before interventionist action is taken.

Numerous suggestions for a set of criteria to determine the legality of a humanitarian intervention have been presented so far. Proponents insist that adherence to very strict conditions is essential in order to reduce the inherent dangers of abuse. In principle, there seems to be agreement among specialists about some of these conditions:

a. The use of force should be resorted to only in situations of gross, persistent and systematic violations of human rights, such an imminent threat of loss of life manifested in mass killings, starvation or other activities.64

b. Intervention should be a "solution of last resort". Diplomatic means and unarmed coercion must have been exhausted, and the use of force must be the only way to avert a major humanitarian disaster. The Security Council must have proven non-operational.65

c. Interventions should preferably be carried out multilaterally. The rationale for this condition is the hope that building multilateral coalitions will filter out the worst forms of national self-interest. 66

d. Force should be used to a minimum to prevent an escalation of violence.

e. Intervention should not be aimed at a permanent transformation of pre-existing legal arrangements, e.g. the secession of a province.

f. Participating states should act in close co-ordination with the UN and, when possible, hand the matter back to the UN.

Some proponents consider these prerequisites preferential rather than absolute.67

An establishment by practice is also thinkable. NATO could also attempt to establish a practice of humanitarian intervention so that it becomes part of international customary law.68

2.1.2. General authorisation by the UN Security Council to regional organisations

In the same line defended by Bring, Ronzitti suggests that the Kosovo operation could open an option for regional organisations to intervene. His proposal is grounded on the fact that Article 53 of the UN Charter does not state that the Council should not authorise regional organisations to resort to force on a case-by-case basis:

"The Council might thus give a general authorisation and adopt a resolution setting the conditions and limits within which a regional organisation or a regional arrangement may take action. The regional body should act under the scrutiny of the of the Security Council, which could always decide to stop a regional action, since it has the ultimate responsibility for maintaining international peace and security. But this means that the five permanent members could exercise a negative veto power - the regional organisation receives a general authorisation which can be stopped by a UN resolution, i.e. which can be blocked by a permanent member."69

2.2. Remaining problems

The institutionalisation of humanitarian interventions presents serious problems, the core difficulty resting with the danger of abuse.

It needs to be made clear that selectivity will remain a need.70 Codification would not do away with the danger of abusing this right for political gains. Multilateralism cannot guarantee that interventions are not undertaken for the sake of national interests. Difficulties are also associated with the need of quantifying the number of people whose lives must be threatened or lost before the use of force is justifiable.
The option of an establishment by practice would be even more problematic. It does not have advocates. There are important dangers in replacing a formal system with a set of vague, half-formed principles that seem more the product of after-the-fact rationalisation than of pre-agreement.71

States may act where it is not necessary while they may be inactive where it is necessary. The historic record is not encouraging: there have been a large number of cases since 1945 where entire ethnic, religious or political groups where persecuted or even massacred by their own states without any third state coming to their assistance, like in Indonesia (1965), Nigeria (1968), Burundi (1972) and more recently Rwanda (1994). Cases of ‘humanitarian’ interventions actually aiming to accomplish other political goals abounded in the century previous to the adoption of the Charter.72

On the official side, guiding principles do not seem to be completely formed. The stance of British Prime Minister Blair, the main advocate of a general doctrine for humanitarian intervention among NATO leaders, proved somewhat inconsistent. Some statements seemed to indicate that action should be taken whenever a situation of humanitarian necessity was amenable of intervention: "You can’t intervene everywhere. There are places you can’t intervene at all. But I believe that it is right that when we have the capability to make a difference that we do."73

Other declarations suggested a more restrictive approach, taking into account a wider number of factors on which a decision to act should be made dependent:

"First, are we sure of our case?…Second, have we exhausted all diplomatic options?…Third, on the basis of a practical assessment of the situation, are there military operations we can prudently and sensibly undertake? Fourth, are we prepared for the long term?…Having made a commitment we cannot simply walk away once the fight is over; better to stay with moderate numbers of troops than return for repeated performances with large numbers. And finally, do we have national interests involved? The mass expulsion of ethnic Albanians from Kosovo, demanded the notice of the rest of the world. But it does make a difference that this is taking place in such a combustible part of Europe."74

Even if a consistent practice and criteria for action were established, there are reasons to think that states will reject adhering to any such doctrine:

States still have divergent views about the inviolability of state sovereignty, and some states will be reluctant to codify a norm that might justify an attack on them on a future occasion.75 Moreover, most states are uneasy about justifying in advance a type of operations which might further increase the prevalence of major powers.

There can be some reticence to create a doctrine which might oblige potentially intervening states to intervene in a situation where they would otherwise not be keen to do so and which might reduce their freedom of action or damage their credibility. In fact, it is not clear that NATO states are prepared to promote this institution. Rather, it seems that not even a majority of its members seem to have any intention of establishing and following such a doctrine. While almost all NATO states made some mention of humanitarian motivations in their policy stances on Kosovo, the doctrine of humanitarian intervention was not generally invoked as such. Both governments and the NATO Secretary-General preferred to use a terminology free of reference to any legal institution, such as "to prevent further humanitarian catastrophe".76
Most NATO governments emphasised the exceptional character of the intervention over Kosovo, making clear that it should not serve as a precedent for action without a Security Council authorisation.77 France in particular manifested misgivings about justifying the Kosovo operation with the right to humanitarian intervention.78

Furthermore, such a course would not take into account Germany’s specific legal obligations. Even after the July 1994 ruling by the Constitutional Court permitting participation in multinational peace operations under a case-by-case approval of the Parliament, Germany is still legally constrained with regard to the use of force.79

2.3. Difficulties in the qualification of Kosovo as a Humanitarian Intervention

Finally, legal problems stemming from the form of belligerence chosen by NATO can make it more difficult for the Alliance to sustain the humanitarian character of the intervention. At first sight, this seems to be a political or moral point, since this kind of intervention is not typified. But it could have legal consequences for the qualification of an operation as humanitarian-grounded in case this would ever be established.
It is not unanimously accepted that the operation in Kosovo would qualify as a humanitarian intervention. A number of scholars, among them defenders of the intervention, contend that the election of the means to carry out the operation makes its legality doubtful. They claim that only an operation solely and directly aimed at the rescue of the population in danger would qualify as a humanitarian-grounded intervention.80 The following points are held to discredit the humanitarian rationale of the Kosovo operation:

a) Failure to accomplish the humanitarian objective of the operation due to inadequate means

Both the chosen strategy and the means (air warfare aimed at bringing about the signing of an agreement) were inadequate to rescue the population in danger. Therefore, observers have pointed to the indefensibility of the humanitarian character of the intervention. Since unilateral intervention can only be justified - it at all - as the sole remaining means to avert systematic human rights violations, military force should aim directly at protecting the endangered population. The use of force is no longer justified when the intervention attempts to force the political leadership into agreeing at a political solution, as was the case in Kosovo.81

Moreover, the intervention not only failed to protect the endangered population in a first stage, but its immediate effect was to exacerbate the ethnic onslaught. As Rogers reported:

"Instead of making the Milosevic regime pull back, the air war had the opposite effect as the regime embarked on a race against time to expel ethnic Albanians and defeat the KLA before the air war intensified."82

This risk was arguably foreseeable at the time when the operation was launched. The use of ground troops might well have prevented a great deal of the ethnic cleansing.

b) Civilian casualties and targeting of civilian objectives

Moreover, the targeting of civilian objectives and civilian casualties caused by so-called ‘collateral damage’ make the humanitarian character of the operation doubtful.83

NATO’s action was clearly in conflict with Humanitarian Law when it destroyed a number of civilian objects of no military value, such as non-military related factories, oil refineries, power stations, water supplies or the Serbian Television building. This clearly constitutes a breach of the Geneva Conventions, which forbids the targeting of civilian objectives.84 In particular, the targeting of water systems collides with the specific protection of objects indispensable to the survival of the civilian population.85

Further, concerns were also raised about the use of cluster bombs, air-delivered weapons which fragment into a large number of bomblets.86 Since unexploded ordnance has the same effect as landmines, the degree of "collateral damage" it can cause might well surpass that permitted by Humanitarian Law.87

For the purpose of qualifying the operation, it is clear that the selection of a strategy which brings about civilian casualties runs counter to the humanitarian character of the operation. Both from a moral and legal point of view, it is highly questionable that humanitarian protection can be provided by infringing damage on non-participants - in the present case, the Yugoslav civilian population.88

The difficulty is that NATO is likely to stick to low-risk warfare in future, so that the mentioned inconsistencies will persist.


3. The Political Inconvenience of Promoting the Establishment of Humanitarian Interventions


3.1. Is caution in place?

Indeed, neither NATO nor the EU have indicated that they would only act with a UN Security Council mandate when they undertake peace operations in future. Although crisis management operations have become NATO's main operational function since 1992,89 the organisation did not include crisis management among its core security tasks until the Washington Summit of 1999 when it adopted the New Strategic Concept.90

At the beginning of the decade, NATO first announced the intention to engage outside the area of the member states in the form of supporting peace operations "under the authority of the UN Security Council or the responsibility of the Conference on Security and Co-operation in Europe".91

A close look at the text of the new Strategic Concept shows that, despite numerous references to the UN Security Council, peace operations are at no point linked to a UN Security Council authorisation. Paragraph 10 of the new Strategic Concept characterises NATO as "an Alliance of nations committed to the Washington Treaty and the United Nations Charter." Paragraph 15 of the new Strategic Concept reads:

"The United Nations Security Council has the primary responsibility for the maintenance of international peace and security and, as such, plays a crucial role in contributing to security and stability in the Euro-Atlantic area."

Finally, paragraph 31 of the new Strategic Concept repeats the formulation of the 1994 Brussels Ministerial Declaration:

"NATO will seek, in co-operation with other organisations,...should a crisis arise, to contribute to its effective management, consistent with international law, including through the possibility of conducting non-Article 5 crisis response operations."

These passages remain subject to interpretation. The formula "an Alliance of nations committed to...the UN Charter" can be interpreted as implying respect for its 'principles and purposes', but does not explicitly mention the UN Security Council’s monopoly of force. The recognition of the "primary responsibility of the UN Security Council for the maintenance of international peace and security" is not equal to the recognition of a "sole" responsibility. A Slovenian representative stated before the Security Council that this had "the primary, but not exclusive, responsibility for maintaining international peace and security".92 Finally, the offer to support operations under the authority of the UN Security Council does not exclude that crisis management operations will be conducted without a UN approval.93

The lack of a self-imposed obligation to act only with a mandate of the UN Security Council leaves open the possibility of unauthorised action.94

The issue becomes even more preoccupying when the European Union follows this example. In the Helsinki Declaration, the EU declares its intention to engage in crisis management without explicitly binding its actions to a Security Council mandate.95

What could be the consequences of NATO adopting a course that ignores the legal authority of the Security Council to allow for the use of force?

3.2. Consequences for NATO-Russia Relations

The intention to engage in crisis management, in particular when not accompanied by an explicit subordination to the UN Security Council, clearly collides with NATO's objective to develop an "enduring and equal partnership" with Russia. The most immediate effect of the bombing of Yugoslavia on relations with Russia96 was the suspension of co-operation activities in the NATO - Russia Permanent Joint Council for about one year.

Russia’s strong condemnation of the intervention is not just ‘one more objection’ to NATO’s policies such as, e.g. enlargement. The assumption of crisis management by the Alliance places new terms on the NATO-Russia relationship. While enlargement was perceived by Russia as intended to reduce its area of influence, the intervention in Kosovo was seen as a precedent which could justify a potential aggression directed against her own territory. Legitimising humanitarian interventions could ultimately affect Russia’s own integrity.97

Further, Russia resented being excluded from the management of the Balkans questions, one of the few international questions in which she had been active in the last years, adding to the gradual alienation of Russia from the European security framework.98

The circumvention of the UN Security Council comes to worsen a NATO-Russia relationship that is already feeble. NATO disregarded the Founding Act on Mutual Relations, Co-operation and Security between NATO and the Russian Federation signed in 1997, which explicitly reiterates mutual adherence to the UN Charter and the Helsinki Final Act with explicit reference to refraining from the threat or use of force and respect for sovereignty.99

Russia’s opposition and threats of countermeasures have often been dismissed by NATO leaders on the basis that this country could not afford to jeopardise its relations with the West, on whose economic support it ultimately depends.100 They rely on the fact that Russia’s chronic economic weakness and military paralysis make the risk of external aggression negligible.

On the other hand, serious incentives remain for NATO member states to substantiate its partnership with Russia.

In the first place, NATO states, and in particular its European members, have an interest in Russia’s long-term stability. There is still a risk that a feeling of exclusion could strengthen nationalist elements in the domestic arena and eventually trigger a backlash - or even a civil war. As long as Russia remains a nuclear power, the West will need her as a co-operative partner in such critical fields as arms control negotiations and non-proliferation efforts.

With NATO’s engagement in regional conflicts, the list of incentives for good relations will be expanded.

Russia’s co-operation can be extremely helpful for NATO. Occasions for contact with Russia will also arise more frequently and at an immediate level if the Alliance takes action in the Eastern part of the continent. The fact that Russia’s engagement in Kosovo was a critical factor in resolving the crisis illustrates how that country, even in its enfeebled state, continues to have considerable diplomatic and political influence in key parts of Eastern Europe.101 Ambassador Blackwill put the point in a nutshell stating that "there is not a problem on the (European) continent that is not made more manageable through Russian co-operation, and none that does not become more intractable if Moscow defines its interests in ways that oppose Western interests." 102
These considerations evidence the core dilemma: While engaging in crisis management without UN approval alienates Russia, Moscow’s diplomatic role is bound to be essential in resolving future contingencies in Europe.

3.3. Consequences for the relationship between NATO and the international community

Long term consequences should also be taken into account. Repeated Alliance actions without Security Council authorisation could severely worsen the relationship of NATO with the rest of the international community.

There is a danger that the relationship between NATO and UN in the field of peace operations moves from reinforcement to competition. However, the ongoing discreditation of the UN should not be reduced to a mere question of competition between two organisations, since they have a different nature. The UN remains the only organisation entitled to act of behalf of the international community. Despite its obvious flaws, the UN Security Council’s monopoly of juridical capacity to authorise the use of force ensures a more universal acceptance of its actions than an alliance of Western states. The sidelining of the UN effectively implies the exclusion of the international community from decision-making in the domain of collective security.

Further, the abandonment of the non-interventionist regime of the UN Charter presents a number of important risks.

International inhibitions about the use of force could be undermined, with the potential effect of escalating hostilities rather than resolving them. This could lead to a return to the balance of power system where war was regarded as a legitimate military means to political ends as predicted by Mearsheimer. 103

NATO countries should be aware of possible boomerang effects:

Any other state might follow their example and decide to act for the Security Council as a self-appointed guardian of the UN resolutions. This could eventually result in a growing reluctance by the Security Council to qualify a "situation as a threat to international peace and security", given that such description could be interpreted by NATO as an excuse for action.104

Finally, a perception of the Alliance as trying to impose its particular set of values could strengthen anti-Western sentiment in some parts of the world. The preoccupying nuclear proliferation in Third World countries could be ascribed to such perception. For Møller, the Alliance should adhere to international law precisely because it has the ability to violate it with virtual impunity.105

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