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THE COUNCIL ON CHRISTIAN APPROACHES TO DEFENCE AND
DISARMAMENT and THE CENTRE FOR DEFENCE STUDIES
'INTERVENTION AFTER KOSOVO - the legitimacy of future international interventions in the light of the Kosovo experience.'
Record of a Seminar held on April 27 2000, at King's College, London University
‘The principle of non-intervention has been described as an egg-box,
protecting the eggs, (the states), from interference.
But what happens when you have a rotten egg –
a state which grossly abuses the rights of its citizens?’*
Chair: Sir Arthur Hockaday (Ministry of Defence, ret’d)
Speakers: Professor Christopher Greenwood (Professor of International Law, LSE)
General Sir Hugh Beach (British Army; ret’d)
Dr Oliver Ramsbotham (Head of Bradford University Department of Peace Studies)
Ms Lyndall Sachs (Information Officer, UNHCR)
Summary - of talks and discussion p.3
Intervention: Key legal considerations - Prof. Greenwood
NATO in Kosovo – A Just War? - General Beach
Humanitarian Intervention and the International Community - Dr. Ramsbotham
Intervention – the Problem of Refugees Ms. Lyndall Sachs
INDEX (excluding the Summary)
Abuse of precedent pp.6,12
‘Altruistic’ motives, comments by George Robertson and Henry Kissinger p.9
Annan, Kofi pp.12,15ff
Authorisation by legitimate authority pp.6,8,17
Conceptual shifts and assessments pp.10ff,11f,17
Consistency of intervention pp.9,14
Criteria for intervention – passim; summaries pp.16f
Discrimination, targeting, collateral damage in armed conflict pp.4,19f
Examples of interventions pp.6f,12f
Hague and Geneva Conventions, Martens Clause pp.9,11
Helsinki Final Act p.17
Human Rights pp.6,15
‘Humanitarian’ intervention p.16
Islamic teaching re intervention p.13
Last resort pp.7,9,18f
‘Legitimate’ and ‘legal’ p.5ff
* This illustration was used by Dr Oliver Ramsbotham in his talk.
National interest pp.4,9
Natural law p.16
Non-intervention – examples pp.15-17
Obligation to intervene pp.3,6,16
Political motives pp.13f,18
Refugees/displaced persons pp.7,13ff,
‘Right to act’ & ‘liberty to act’ p.16
Right intention pp.9,17
Sanctions - diplomatic, economic, financial pp.4,19
Sources of international law p.12
Sovereign rights of states pp.6,11,17
UN – Opening affirmation of Charter, Articles 2/4,51,42: p.5f
UN Resolutions 1160, 1199,1203 pp.3,7f,12
UN Secretary General’s Kosovo report p.8f
UN – undermining of authority pp.7,17
UN voting in Security Council p.7f
THE COUNCIL ON CHRISTIAN APPROACHES TO DEFENCE AND
DISARMAMENT and THE CENTRE FOR DEFENCE STUDIES
"INTERVENTION AFTER KOSOVO - the legitimacy of future international interventions in the light of the Kosovo experience"
Summary of Seminar
Christopher Greenwood: 'Intervention - Key Legal Considerations' In an age which has seen increasing (though admittedly still inconsistent) support for the enforcement of human rights, where the objective is to prevent 'massive, systematic violations of human rights', the means adopted - even including the use of force without the authority of the UN - might be 'legitimate', even if not, strictly speaking, legal, because to resolve the situation and rescue the victims was morally imperative.
The situation in Kosovo had been designated a 'humanitarian catastrophe in the making' (SC 1199) and a 'threat to international peace and security' (1203). Despite the lack of a SC mandate, the intervention met three conditions: it sought to prevent a 'massive humanitarian emergency'; there was ‘a kind of authoritative determination' that the crisis was of international concern; and, thirdly, the intervention was of 'last resort'.
Early in the conflict the SC had rejected by 12 to 3 a resolution condemning the intervention. 'Non-condemnation is not the same as approval, but neither should it be cast aside.' The speaker believed the history of other interventions, and international reaction to them, pointed to the relevance of this observation.
Hugh Beach: 'NATO in Kosovo - A Just War?' HB supported the intervention as justified, though in an aside he questioned whether the conduct of the war had met the requirements of jus in bello. As to legitimate authority, '... must paralysis ensue if the SC, for what ever reason, cannot agree?' As to right intention, HB questioned whether intervention was possible for democracies in a TV age without there being a strong national, as well as humanitarian, interest. As to last resort, he was a strong believer in giving 'gentler methods' every chance.
Oliver Ramsbotham: "Humanitarian Intervention and the 'International Community'" OR traced in some detail the history of the gradual replacement of the system of sovereign states by the concept of an 'international community'. Principles of intervention were emerging from three sources: custom, the general principles of humanity, and the dictates of conscience, as reflected in the Hague and Geneva Conventions and the Statutes of the International Court of Justice. However, the present state of affairs was uneven. Three trends intersected: humanitarian intervention, state development, and the self-determination of peoples. Humanitarian intervention was only possible in a truly international community - a point he illustrated with a quotation from a Muslim scholar.
Lyndall Sachs: 'Intervention - The Problem of Refugees' The UNHCR was an operational agency required to 'put a band-aid plaster on a gaping arterial wound.' Staff had been aware from the start that a prime objective of the NATO states had been to secure the return of a million Albanian Kosovars to Serbia from Albania, Macedonia and Western Europe. 460,000 had already been displaced before the NATO assault, 100,000 of whom were in Western Europe. In the 11 weeks of the conflict nearly another million crossed local borders. Despite minus 20C temperatures, the vast majority survived the winter. When the fighting ceased, huge practical problems remained, and the donors had their own agendas, not always helpful to UNHCR.
Discussion highlighted the problem of consistency (why had there been no intervention in the Congo, not to mention Chechnya?), the ambiguities of the word 'right' (as in the phrase 'right to intervene'), the setting of precedents which could be abused, the roots of just war (and 'justified intervention') doctrine in the natural law tradition, the need for more emphatic diplomatic and other pressures to be brought to bear before force is used, the difficulties UNHCR had encountered in determining the aid priorities, and the extent to which the principles of discrimination and proportion had been observed during the conflict itself.
In view of the priority given by governments to 'national interest', and the need to be assured of a successful outcome (which NATO could not be assured of in Chechnya) was it proper to speak of humanitarian intervention at all? That a humanitarian outrage was being perpetrated was clearly necessary to an intervention; it appeared to be far from a sufficient cause by itself.
OR listed five requirements for humanitarian intervention to become accepted as a norm: universality - cross cultural acceptance; consistency of application; 'mutuality' (sensitivity to those on whose behalf you are intervening); complementarity (co-operation between military and civil authorities); and neutrality - as between the warring parties.
CG reminded us of the use by international law of the notion of 'right' as meaning 'liberty to act'. The fact that one had a right to intervene could not trump all other considerations, but by their ratification of many post-WW2 conventions and treaties the signatories 'had ... abandoned whatever sovereign rights they ... had to drive out, hound and burn their own citizens ...'. HB pointed to the geographical nearness of the crisis, the high degree of public support, and the availability of adequate forces as necessary factors in the NATO decision (which - he reminded us - was made unanimously).
CG distinguished between targeting decisions and the requirements for the avoidance of collateral damage. LS highlighted the extreme difficulties UNHCR faced in securing co-operation between donor countries in search of publicity to prove their humanitarian motives to their home constituencies.
The Chairman thanked all who had contributed to an extremely informative afternoon, and our hosts, the Council of King's College, for the use of their Council Room.
Record of talks
The Chairman said that the word 'legitimacy' was intended to point to the moral aspects - beyond what might be permitted by a strict understanding of the international law. Also - did we contemplate intervention on humanitarian grounds ever becoming an obligation?
Professor Christopher Greenwood – ‘Intervention: Key Legal Considerations’
Following on from the Chairman's introductory remarks, Professor Greenwood said he proposed to use the word 'legitimacy' precisely to 'go beyond mere legality to the moral issue'. He hoped to encourage his audience to concentrate on the objective sought in any given case of possible intervention. His contention was that where the ends sought are 'clearly vastly preferable' to a present situation, the means adopted, even including warfare, ought, in principle, to be regarded as 'legitimate', even were they not, according to the strict understanding of current international law, legal.
Some lawyers preferred to set the question of strict legality aside. They say the morality of a situation might indeed require states to act in ways that were technically illegal, but morally imperative, but because of the dangers of creating a precedent, it was preferable to admit that there are times when, for the greater good, the strict law has to be set aside.
The speaker disagreed with this view. To look for justification for intervention outside the well-known criteria was not necessarily to risk future abuse. Leaving states to ignore the law in the name of 'some higher moral principle' (which could be blatantly self-serving), was worse. Distinctions had to be made.
In his view the intervention in Kosovo had been legitimate. Despite the prohibition of the use of force across state borders in Article 2/4 of the UN Charter, developments since the end of WWII showed that a right of international humanitarian intervention is increasingly recognised.
Article 2/4 prohibits the use of force by states in their 'international relations, against the territorial integrity or political independence of another state, or in any other manner inconsistent with the purposes of the United Nations.'
It was true that the two exceptions to this prohibition - Article 51 (self defence) and Chapter 7 (especially Article 42, mandate of the Security Council) - could not be used to cover the Kosovo situation, which was a case of attacks by the armed forces of a state on its own people, within its own boundaries.
Nor could Security Council Resolutions 1199 and 1203, and the earlier Resolution 1160, be regarded as authorising intervention. However, taken together, these Resolutions did amount to authoritative judgements to the effect that:
a) the situation in Kosovo constituted a 'humanitarian catastrophe in the making' (1199 - adopted unanimously by the SC in September '98, and quoted frequently by British Ministers as justification of NATO’s action ); and
b) the situation in Kosovo was a 'threat to international peace and security' (1203).
However, even though events in Kosovo could not be adequately described as solely 'the internal affairs of Yugoslavia', the speaker conceded that the Security Council had not actually 'authorised' the NATO forces to intervene. But we have to ask why its authorisation had not been sought? The fact is that, had it been sought, authorisation would have been blocked by China and the Russian Federation - for reasons entirely unrelated to the situation in Kosovo.
Did the history of earlier interventions (or non-interventions) offer any useful guidance? Claims sometimes made prior to the 2nd WW to the effect that a general right to intervene existed (e.g. in the cases of the Balkans in the 19th c., and the Armenian massacres and the Holocaust in the 20th), were spurious. However, to maintain therefore that legitimacy would be denied to-day to intervention in such cases was clearly nonsense.
He wanted to argue that, because of its general and increasing recognition of human rights, international law would now allow that, in an extreme case, a state or group of states is entitled to use force across the boundaries of another state to prevent or limit 'massive, systematic violations, involving loss of life on a grand scale, or threats of the loss of life on such a scale'.
As to the abuse of such a formula, on the facts he did not believe such criteria could have been used to justify, for example, either the American interventions in Grenada or Panama, or the Soviet interventions in Hungary, Czechoslovakia or Afghanistan. Nor, as the facts were at present, would it justify intervention in Zimbabwe, or, for that matter, in Saudi Arabia.
The speaker pointed to the opening phrases of the UN Charter: 'We the peoples ... of the United Nations' (not 'we the states') 'reaffirm faith in fundamental human rights and the dignity and worth of the human person, and the equal rights of men and women and of nations large and small ...' This affirmation could not be set aside on the grounds that avoidance of conflict between states was thought to be more important in all circumstances than respect for the right to life of large numbers of people.
Secondly, examples from recent decades which might be thought relevant would include India's intervention in Bangladesh in 1971, Tanzania's in Uganda in '79 and Vietnam's in Cambodia also in '79. All three interventions had been 'hesitant' and only Tanzania's intervention in Uganda had been at all 'well received' by the international community.
In 1990 the group of (very impoverished) states intervening in Liberia had stated explicitly that 'preservation of life' had been the sole purpose of their intervention. In view of the costs involved, it could hardly be said that they were wrongly self-interested.
The Anglo-American intervention in northern Iraq in 1991 and the creation of the No-fly Zone in Southern Iraq the following year also illustrated the trend. (The UN had actually authorised intervention in Haiti, but this was somewhat diminished as a precedent as the authorisation was given only after the US had indicated it would go ahead on its own if the UN refused to act.)
Thus, in the view of the speaker, the Charter itself, taken together with these examples, admittedly of varying weight, pointed to the existence of an international right to intervene provided, it seemed, three conditions were met:
1. - The intervention is necessary to prevent a 'massive humanitarian emergency' and very extensive loss of life. In the speaker's view, this condition had been met in Kosovo. He did not believe that it was the NATO campaign which had caused the refugee crisis. By March 28 1999, i.e. before the NATO bombing, over 400,000 out of just under 2 million Kosovars were already refugees or internally displaced (UNHCR Briefing Paper, May 1999). It was the pre-bombing massacres which had led the Security Council to identify a 'massive humanitarian emergency in the making.' The Serbian response to the bombing was clearly pre-planned.
2. - 'Some kind of authoritative determination' had been made that an emergency exists which is of international concern. This was clearly the case regarding Kosovo, as it had been regarding Iraq in 1991.
3. - Thirdly, where a specific mandate of the Security Council was lacking, military intervention would have to be a matter of last resort (regrettably in the speaker's view. By waiting until the situation had deteriorated to the extent that intervention had become a 'last resort', more effective and less costly opportunities for intervention will have long since gone. Unfortunately, in the present state of the international system, this difficulty seemed unavoidable.)
Three objections to this line of argument might be:
1. The right to humanitarian intervention will be abused. But this argument is used against every emerging 'right' in international law. The lawyer's task is to distinguish between real and bogus cases. On the other side are the risks of prohibiting intervention in such situations as that of Idi Amin's Uganda.
2. The authority of the Security Council will be undermined. This argument comes strangely from those who paralysed the SC during the Cold War period. The Secretary General had said that the likelihood of UN intervention in East Timor in September 1999 had been strengthened rather than weakened by NATO's action in Kosovo. It had demonstrated that a veto in the SC could not be assumed to be the end of the matter.
3. It is said that intervention must be limited to dealing with the immediate emergency. It is true that interveners had found it very difficult to extricate themselves from 'long term developments'. But this is a counsel of perfection, which makes the best the enemy of the good. The fact that NATO was bound to be involved in Kosovo for many months if not years could not be taken as an argument against intervention in the first place.
In conclusion, the speaker pointed to the fact that, far from being silent during the crisis itself, the Security Council had actually voted down by 12 votes to 3 a Resolution proposed by the Russian Federation condemning the intervention. It was true that the 12 included some NATO countries, but amongst the 12 were also Brazil, Bahrain, Malaysia and some African countries. In other words, a clear majority of the members of the Council were not prepared to condemn the action. Non-condemnation is not the same as approval, but neither should it be cast aside.
This vote was one of a number of factors which led the speaker to conclude that the action was legitimate and, hence, that future interventions meeting similar criteria should be regarded similarly.
General Sir Hugh Beach - 'Nato in Kosovo - a Just War?'
Hugh Beach addressed three aspects of the requirements for a just war, or justified intervention, as he regarded NATO's intervention in Kosovo to be.
Legitimate Authority: it was clear that, nowadays, only an agreed international authority has the right to take armed action, and that the United Nations is the supreme source of legitimacy for action in support of international peace and security. But must paralysis ensue if the Security Council, for whatever reason, cannot agree?
1. NATO's action was consequent upon the unanimous agreement of nineteen democratic nations.
2. It was in direct response to Serbia's disregard of Resolution 1199, calling on all parties to cease hostilities.
3. As Professor Greenwood had said, the Russian and Chinese vetoes of the renewal of the Mandate of the UN Preventative Deployment Force in Macedonia were blatantly disregarding of the situation on the ground in Macedonia. He suggested that they would have voted similarly had NATO states sought SC backing regarding Kosovo.
Moreover, in the debate of 26 March on the Russian Resolution, two days after the bombing had begun, the Slovenian representative had made 'the robust point' that, in his view, the SC had the 'primary but not exclusive' responsibility for maintaining international peace and security. This phrase might well be regarded as an accurate interpretation of Article 24 of the Charter.
4. The SC, in Resolution 1224 of 10 June 1999, had conferred ex post facto recognition on NATO's actions. It had also endorsed the principles of the settlement and authorised NATO to establish an 'international security presence' in Kosovo.
The speaker regarded a fundamental point to be at issue: Is it right to put action by the international community on gross and flagrant abuse of human rights in hock to countries whose record throws grave doubt on their motives? In his view, '... endorsement by the SC is a sufficient but not always a necessary condition of legitimate intervention.'
The UN Secretary General's report on UN action in former Yugoslavia is revealing on this point:
'We (the UN) tried to create - or imagine - an environment in which the tenets of peacekeeping - agreement between the parties, deployment by consent and impartiality - could be upheld ... An arms embargo with humanitarian aid and the deployment of a peacekeeping force ... were poor substitutes for more decisive and forceful action. ... The cardinal lesson ... is that a deliberate and systematic attempt to terrorise, expel or murder an entire people must be met decisively with all necessary means and with the political will to carry the policy through to its logical conclusion. ... In Bosnia and Kosovo the international community tried to reach a negotiated settlement with an unscrupulous regime. In both instances it required the use of force to bring a halt to the planned and systematic killing and expulsion of civilians.'
Right intention: To what extent is national self-interest an unavoidably necessary ingredient in decisions to intervene? The speaker thought that inevitably, it was. If no national interest is at stake, how are politicians in TV-saturated democracies to justify sending young men and women to suffer and possibly die?
In Somalia, increasing losses had led to the humiliating withdrawal of the American force. Over Kosovo the credibility of NATO was at stake. To accuse the Americans of hegemonism in Kosovo seemed to him unfair. The US had become involved only after much hesitation, and after the Europeans 'had dithered for years'. Kosovo was certainly a threat to international peace and security. Had Milosevic's adventure succeeded, Macedonia or Albania would have been next, leading to a wider Balkan war.
The UK's then Secretary of State for Defence, George Robertson, has said that he regarded Britain's armed services as 'a force for good'. The speaker hoped they were, but in general 'vague altruistic motives' were not helpful. Such declarations raised false hopes. If Kosovo - why not the Sudan or Sri Lanka? He agreed with Joseph Nye: '... a foreign policy of armed multilateral intervention to right all such wrongs would be another source of enormous disorder.' We are likely to do most good where we have the biggest national stake in a successful outcome.
Last resort: The argument that more forceful action should have been taken earlier implied that gentler measures would always fail was a counsel of despair.
The speaker concluded that if our general purpose was to achieve the implementation of the original Hague process - to develop 'mechanisms that will allow for humanitarian intervention to protect the lives of people in danger' - we had to accept that effective intervention was required, and that such intervention will sometimes include war-fighting.
* Henry Kissinger in the International Herald Tribune, 16.12.92: 'Humanitarian intervention asserts that moral and human concerns are so much a part of American life that not only treasure but lives must be risked to vindicate them: in their absence American life would have lost some meaning.'
Oliver Ramsbotham – "Humanitarian Intervention and the ‘International Community’"
The central argument would be twofold:
- That the concept of individual states as members of an 'international community' was evolving;
- That the possibility of humanitarian intervention could well be the litmus test of progress towards that goal.
The term 'international community' lacks formal definition, though it is much used in the western tradition. Ken Booth's sceptical comment that 'The phrase 'international community' belongs to the platitudes of a society of states run by western governments and a variety of local strong men which bears a strong resemblance to a global protection racket' illustrates the difficulties. Were this to be literally the case in every case, the concept of humanitarian intervention would be impossible to sustain.
The key to understanding the current state of play lies in identifying the tensions between three trends: the evolution of the modern state; the development of the idea of humanitarian standards; and the emergence of intervention as a way of protecting the latter. In tackling these issues, a historical perspective is essential.
Alberico Gentili (late 16c.) had pointed out that with the emergence of the sovereign state had come inevitably the period of international anarchy. Lacking any effective superior authority (such as the Holy Roman Empire), there had been no effective alternative to resolving disputes by arms.
However, in his Reflections on 'Honourable Reasons' for Waging War, Gentili had included the possibility of waging war on behalf of subjects other than those of the sovereign: 'The subjects of others do not seem to me to be outside that kinship of nature and society formed by the whole world. And if you abolish that society you abolish the unity of the human race.'
Like Gentili, Grotius (17c.) had a place in his system for intervention. Despite the fact that he did not conceive of an intermediate state between peace and full-scale war, he thought that
'The fact must be recognised that kings ... have the right of demanding
punishments ... also on account of injuries which do not directly affect them, but excessively violate the law of nature or of nations, in regard to any persons whatsoever. Truly it is more honourable to avenge the wrongs of others rather than one's own.'
During the 18c, with the development of what some writers were already beginning to refer to as an international 'society of states', the doctrine of non-intervention emerges. On the basis of the writings of Christian Wolff and others, Hedley Bull and Adam Watson write of:
'... the international society of states, in which states have established by dialogue and consent common rules and institutions for the conduct of their relations, and recognise their common interest in maintaining those arrangements.'
In 1993, Caroline Thomas, the anti-interventionist writer, summarised the situation thus:
'What sovereignty really connotes in inter-State relations to-day is a claim to independence, which is theoretically tempered by the recognition of an equal claim to this by all states and of a duty and obligation not to intervene in the domestic affairs of other states.'
Milosevic clearly based his actions on the belief that this would prove to be the case in the rearrangements he wished to impose in former Yugoslavia.
During the period initiated by the American and French revolutions, the concept shifts from 'princely sovereignty' to 'the sovereignty of peoples'. This is the origin of the modern concept of rights to self-determination of peoples or nations.
Thus questions of humanitarian intervention, state development and self-determination intersect, and constitute part of the background to the problems encountered in Kosovo, Bosnia and Iraq. And as has been said already, having intervened, the international community now finds it very difficult to pull out.
Fernando Teson argued during the Cold War period that:
' ... because the fundamental argument for the existence of states is the protection and enforcement of the natural rights of the citizens, a government that engages in substantial violations of human rights betrays the very purpose for which it exists and so forfeits not only its domestic legitimacy but its international legitimacy as well.'
In the 19c there is talk of the emergence of a 'community of civilised nations'. Throughout the second half of the century, there was a controversy as to whether there was a 'right' to intervene in Ottoman possessions, it not being clear whether Turkey was to be included in or excluded from that community.
Gradually, what could be called principles of intervention begin to emerge from a number of sources of international law as identified in the Statutes of the International Court of Justice, the 'General Principles of Law Recognised by Civilised Nations', and the Martens clause of the Hague 1889 (later Geneva) Conventions. The last of these expresses the position as follows: '... in cases not covered by this Protocol etc. ... civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of the public conscience.'
In these words we have a record of the values which might be said to trump the principle of non-intervention.
However, the dilemmas remain: on the one hand, as Richard Lillich argued during the period of the Cold War:
'to require a state to sit back and watch the slaughter of innocent people in order to avoid blanket prohibitions (of) the use of force is to stress 'black letter law' at the expense of far more fundamental values'.
On the other hand, Ian Brownlie in a well known passage, warns that:
'humanitarian intervention ...would be an instrument wide-open to abuse. There's a great deal of useful circumstantial evidence both that the law does not recognise humanitarian intervention, and also that the prognosis for such action, as a genuine instrument for the benefit of mankind, is not good. Whatever special cases one can point to, a rule allowing this, as opposed to an appeal to the UN to act through the appropriate organs, is a general license to vigilantes and opportunists to hegemonial intervention.'
The root of the problem is the fact that the concept of the 'society of states' as an 'international community' is still evolving. In our present stage of development we have 'all things at once': an international anarchy of big states (the 'society of states', with non-intervention principles), alongside genuine elements of international community, drawing on universal humanitarian principles.
If the non-intervention rule is set aside in favour of intervention, the door is opened for unpredictable undermining of world order. On the other hand, there is the seemingly immoral and intolerable position that the international community, for the sake of the non-intervention tradition, has to appear impotent to combat massacre, genocide and torture.
To illustrate the long term development of intervention as a possible form of action, the speaker briefly reviewed all the recent cases of intervention which derived, in his view, from either or both of international law and UN decision making. The principle of non-intervention has been described as an egg box, which protects the individual eggs, the states, from interference. But what happens when you have a rotten egg – a government which grossly abuses the rights of its citizens, or is unable to protect them, or is unwilling to recognise the principle of the self-determination of peoples?
Kofi Annan has expressed regret that there had been no explicit endorsement of Kosovo (as Perez de Cuellar had similarly regretted after the 1991 intervention in Iraq). George Robertson has said that 'the UK was clear that the military action taken (in Kosovo) was justified in international law as an exceptional measure to avoid an over-whelming humanitarian catastrophe, and was the minimum necessary to do so.'
In 1991, Douglas Hurd said regarding Operation Southern Watch in Iraq, 'We operate under international law. Not every action taken by the UK, USA or France has to be underwritten by a specific UN resolution, provided we comply with international law. International law recognises extreme humanitarian need. So there are strong legal as well as humanitarian grounds for setting up the zone.'
The issue of humanitarian intervention links up with the problem of the long- term nature of unresolved internal political disputes. It is these, left to fester, which lead to situations to which intervention becomes the only adequate response. On the other hand, those intervening have to recognise that intervention is not a quick fix.
In conclusion, Dr. Ramsbotham said that the need for a genuinely universal support for intervention (together with the fact that the Kosovan intervention was on behalf of a mainly Muslim people) makes the reaction of Islam to Kosovo significant. While Islam does not include the modern state as one of its concepts, and regards the international community as insufficiently mature to authorise and carry out intervention policies, intervention itself is, in principle, sanctioned by the Koran:
The Malaysian Muslim scholar Chandra Musla has written as follows:
'For justified humanitarian intervention to be viable there will have to be fundamental changes to international politics and international authority structures. International politics should cease to be the domain of the powerful. As long as global political decisions are shaped primarily by the interests of a handful of global elites in powerful state, intervention will almost certainly reflect their dominant foreign policy preoccupations, and have little to do with justice for the powerless. For intervention to be viable, the institution given the task of intervening must reflect the interests of the human family as a whole. A genuinely democratic UN will bestow the right to say whether a situation warrants intervention or not upon the UN General Assembly, rather than the Security Council. In intervening, the GA should go beyond keeping the peace. To make intervention viable there should be a clear commitment to enforcing the peace. The UN force that we envisage would have the authority to take firm military action against the oppressor. Without these changes in international politics, and within the international system as a whole, it will not be possible to apply Islamic principles of humanitarian intervention.'
Lyndall Sachs - ‘Intervention, the Problem of Refugees’
Of the 25 million people for whose welfare the United Nations High Commission for Refugees has principal responsibility, an increasingly significant number are displaced within the boundaries of their home countries. The UNHCR is an operational agency 'putting a band-aid plaster on a gaping arterial wound'. Without the contributions of the donor governments, even the band-aid would be lacking.
The speaker had observed from audience reactions that some regarded the term 'humanitarian war', as a contradiction in terms.
UNHCR had been clear from the beginning that 'one of the key objectives of NATO' was the return of approximately one million Albanian Kosovars from Albania, Macedonia and Western Europe. Right up to the Rambouillet Conference, UNHCR had been reigned in from seeking funds for work amongst already displaced persons (internally and externally). Its instructions were to concentrate on the mass return which would follow the Conference.
The speaker agreed that it was incorrect to say that the NATO intervention was the main cause of the population movement out of Kosovo. Ever since opening its office in Kosovo in 1992, the UNHCR had encountered increasing difficulty in performing its basic mandate, protection work. By the end of March, 460,000 individuals were displaced - 200,000 in Kosovo, 100,000 in the neighbouring Republics, and 100,000 in Western Europe. It was the clashes between the Kosovo Liberation Army and the Yugoslav forces in1998 that had led to this displacement of over half the eventual total number. By the summer of 1998 the human rights abuses were spread across the whole region.
In view of these movements of population, it was not surprising that UNHCR's perception was that a strong self interest prevailed in Western Europe towards making Kosovo a safe place for Kosovar Albanians. UNHCR also perceived that there had been a 'failure to take stronger political action' earlier. As an a-political organisation, UNHCR recognised from the beginning of its involvement, and before NATO's armed intervention, that 'something very, very strong in terms of political action' would have to be done.
In the 11 weeks of the NATO action nearly a million refugees crossed the local borders - creating major protection problems. Macedonia closed its borders to refugees. Montenegro kept them open - and was almost overwhelmed, and much pressured by the Federal government. KLA recruitment in the camps was difficult to restrain. And there were thousands of separated families. All against a background of intense lobbying by all the governments involved, who saw in the UNHCR a scapegoat for failures in protection and relief which were actually of their own making.
Difficult though co-operation between the NATO forces deployed in the area and UNHCR in the building and running of camps was, once the military war ended, within about six weeks 'one of the quickest turn-arounds of refugees in the history of the UNHCR had taken place', as the majority of the one million refugees and internally displaced people returned to what was left of their homes - to the delight of the NATO governments, which saw their speedy return as justification of their by now highly controversial bombing campaign.
During the initial phase of the return - to an area smaller than Wales - donor contributions were paid promptly and voluntary organisations were present in great numbers. Despite minus 20C temperatures, the vast majority of Kosovo Albanians had survived the winter.
The speaker concluded with these reflections: When the fighting ceased, huge practical and political tasks remained, (including, ideally, the re-building of an entire province and the creation of a multi-ethnic state). As time went by donors had become less eager to be involved - or to keep their promises.
Secondly, the politicians had not thought through the practical implications of their actions. How was the return and future security of very large numbers of people to be assured?
Thirdly, much greater resources are needed to assist states and regions recover in the post-conflict phase.
Fourthly, consistency: 'humanitarian crises around the globe must be treated equally', in respect of both intervention and post-conflict assistance.
Rapporteur: Brian Duckworth
48 Park Road
West Sussex. RH15 8ET
RECORD OF THE DISCUSSION
The subjects appear under four headings:
3. Last resort
4. Discrimination and proportionality.
Contributors from the floor are not identified. The main speakers are HB - General Sir Hugh Beach; CG - Professor Christopher Greenwood; OR - Dr Oliver Ramsbotham; LS - Lyndall Sachs
During the discussion we were informed that in January this year (2000) the Foreign Office had begun a study on the long-term policy of HMG about humanitarian intervention.
Many of the topics discussed are referred to in the CCADD publication, Some Corner of a Foreign Field: Intervention and World Order Ed. Roger Williamson, 1998, Macmillan and St. Martin's Press ISBN 0-333-69200-4
1. Requirements and criteria
In reply to a number of contributions CG commented that two questions had to be answered: - what are the requirements for an operation to be legal? - what are the practical considerations which might lead a state or group of states in fact to intervene? He and HB adduced the following list of requirements:
Interveners must at least
a) see a realistic prospect of success and
b) be persuaded that the outcome will justify the price paid
- take into account the geography of the crisis - ('this is happening in our own backyard')
- have sufficient public support - (absence of a serious divide in
the home constituency. As a speaker from the floor had said, in a democratic country, "Caesar has to be defined inclusively of the whole population to a degree unthought of in New Testament and imperial times".)
e) avoid over-stretch of forces available.
What this amounted to was: 'Kosovo and East Timor - Yes; Chechnya - No'! But TV reporting could obviously work in the other direction – creating pressure for ‘something to be done’.
A number of questions referred to the long tradition of non-interference in the affairs of other states. As further evidence of the change in practice referred to by all the speakers, OR referred to Kofi Annan's statement of April 7 this year (2000) to the Geneva Human Rights Convention, and to his assertions (on other occasions) that 'tyrants should not be allowed to shelter behind sovereignty' and that it is 'the duty' of the UN to intervene in cases of gross abuse.
A speaker from the floor later commented that all the current requirements for humanitarian intervention seemed to be implicit in just war theory, the latter being itself rooted in natural law. In the main Christian tradition regarding international and civil tumult, all the extreme responses (war, revolution/over-throw) were regarded as permissible only when a 'better order' or outcome than that initially prevailing was predictable. Commenting on another contribution, CG said that (despite the opinions of Augustine, John of Salisbury, and no less than St.Thomas Aquinas) international law seemed never to have acknowledged a right to commit tyrannicide. The ensuing state of affairs was always considered likely to be worse than the original.
OR summarised the five requirements which he thought necessary for intervention on humanitarian grounds to become accepted as a norm:
- universality: the principles of intervention must be cross-
culturally acknowledged.b) consistency of applicationc) 'mutuality' - those in whose name you are intervening should
- have a say in whether the intervention should take place at
all, and, eventually, whether it had been ‘successful’. For HMG
to support a case for self-determination, 'it would have to be
evident that after the secession there would be better governance than before'.
- complementarity - meaning that military and non-military
agencies (such as the UNHCR) must co-operate.
- 'neutrality' - the intervening force should strive to be
neutral as between the warring forces.
CG reminded us of an apparent requirement for the recognition of statehood that would make any claim on the part of the Kosovar Albanians to secession difficult to concede. In 1991,it had been agreed that only entities which had had the status of Republics in the former Soviet Union could be candidates for statehood. If this precedent was applied to Yugoslavia, international recognition of Montenegro might be possible, though not of Kosovo, which had been denied republic status within the Federation of Yugoslavia
The problem of consistency troubled many contributors. The examples of non- intervention - central Africa being the most blatant – underlined HB’s point that other factors than the plight of even massive numbers of people were required to trigger intervention. The humanitarian factor may be a necessary cause - it is not sufficient by itself. The qualification of principle by real politic diminishes the likelihood of intervention almost to vanishing point. That being so, should we speak of 'humanitarian' intervention at all?
CG pointed to the fact that international law had always defined 'a right' ('the right to intervene’) as a 'liberty to act' rather than as a duty or a requirement. To possess a right to act in that sense does not trump all other considerations. Perhaps we should speak of states or groups of states having 'a liberty to intervene provided certain criteria (some of which might be highly self-interested) were present.'
In response to the lack of satisfactory legal authorisation for the intervention in Kosovo – from either the Security Council, or (in the case of the British component) the UK Parliament - would not an independent tribunal on intervention be desirable? CG referred to the caution of all the speakers about the degree to which a truly international ‘community’ might be said to exist at all - a necessity for such a tribunal to be established. But did not the combination of the legal and political authority of the Security Council make it the obvious candidate for this role - with the added advantage that it actually existed!
As to the history of the notion of an 'international community', he reminded us that the 1856 Pact of Paris had explicitly admitted Turkey to the community of nations - implying that it had previously been outside it. This distinction, however it is expressed, (an earlier formulation spoke of 'civilised' and 'uncivilised' states), is clearly no longer operative. All states are now assumed to be members of the 'community of nations'. This development puts a different slant on the discussion about justified wars and interventions. (For much of the 19c it was assumed that only 'uncivilised' states were vulnerable to ’intervention’, it being considered improper to intervene in the domestic affairs of so-called civilised states.)
How could the action in Kosovo be squared with the Helsinki Final Act on Security and Co-operation in Europe - which appeared explicitly to prohibit intervention in the internal affairs of another signatory state? CG repeated his contention that the principle was now established that such actual or impending disasters as in Kosovo could no longer be categorised as the ‘internal affairs’ of the state in question. By the ratification of so many post-WW2 conventions and treaties 'the signatories had ... abandoned whatever sovereign rights they might ever have had to drive out, hound and burn their own citizens....’
Although the claim to jurisdiction over a foreign national in a criminal case (e.g. Pinochet) had to be distinguished from a decision to take armed action in another country, CG's view was that the Pinochet case and Kosovo were both examples of the same underlying trend: neither states nor Heads of State 'had the right to massacre their own people.'
The fear that the NATO action had undermined the UN was misplaced. The impediments to the development of the UN derived mainly from the pre-1990 Cold War system. The UN system was now reviving, but it was a mistake to regard the UN as the only means of resolving such problems as Kosovo. Kofi Annan himself had said that we should avoid 'choosing between unilateral action (as in Kosovo) and collective inaction.... '. The challenge is to motivate the member states of the Security Council to achieve a political consensus.
Moral equivalence: In reply to a question suggesting that, 'because Hitler was a bad guy', it had been wrong for him to intervene, e.g. in Czechoslovakia, - 'but it's OK for us to intervene in Kosovo, because we are good guys...’, and referring to the requirement of the Rambouillet proposals to occupy Kosovo, (cf Hitler's occupation of Czechoslovakia), CG urged us to recognise the distinctions. The governments of Czechoslovakia in 1938 and of Serbia in 1999 'are not morally equivalent', and nor were the situations prevailing in each at the relevant times.
HB agreed that the Rambouillet document had appeared to make unreasonable requirements of Serbia. Three such had been omitted from the eventual cease-fire agreement:
- there were to be no 'free-running rights' for NATO over the whole of Serbia
- the UN (not NATO) was to be in charge of the occupation
- the R. requirement of an automatic independence referendum after three years
was dropped. (It was this requirement which appeared to have made it impossible for Serbia to sign the R. document. Its acceptance would have amounted to the break up of the state.)
However, HB's view was that even if those requirements had been omitted from Rambouillet, (and the Russians had been more willing to lean on Serbia), it was
unlikely that Serbia would have agreed to even the reasonable demands (to withdraw Serbian armed units from Kosovo, to allow the return of the refugees and to allow the entry of the international protecting force).
Referring to the difference between political and humanitarian motives for involvement, LS said that staff of UNHCR considered that the motivation of the donor states for the subsequent aid provision - of both personnel and materials - had been highly politicised. Publicity of such provision was useful in proving the humanitarian motivation behind the NATO action in general, and the participation of the relevant donor country in particular. Donor governments had made excessive claims for their own efficiency. Such had been the special interests of the donors that the UNHCR had found it difficult to distribute the available aid in conformity with the priorities of the needs on the ground.
3. Last resort A concern in western Foreign Offices was that any other than a 'last resort' approach to intervention could encourage civil tumult as a means of achieving self-determination.
In addition to the lack of 20/20 hindsight, a difficulty in taking pre-emptive action in Kosovo was the situation at the time in Bosnia. CG understood that a proposal to include Kosovo in the Dayton process would have been rejected by both the diplomats and the NGO's. It would certainly have greatly delayed the resolution of the Bosnian crisis.
Diplomatic pressure was clearly preferable to armed intervention. But two members of the panel doubted whether greater use of the Russian Federation would have made any difference. The attempts to seek conflict resolution by education and non-forceful peace-making methods were also important. One contributor had been involved in such efforts, one of several from 1990 onwards.
As to sanctions as an alternative to intervention, LS pointed out that the examples of Iraq (and currently Serbia itself) were not encouraging. To have any chance of success, sanctions had to hit the political, business and civil service elites by at least denying them visas, banning financial transfers and e-commerce and freezing overseas currency accounts.
A speaker from the floor referred to Montenegro as an example of a situation in which pre-emptive steps might prevent another Kosovo. Should not the Serbs be warned of the dire consequences of reckless action on their part? OR's view was that such a threat could only be made in prospect of a 'massive humanitarian disaster', and only if those making it were prepared to have their bluff called.
4. Discrimination and proportion
In his initial statement HB had said that, once intervention in Kosovo had been decided upon (correctly in his view), in bello considerations of discrimination and proportion had applied, and in his opinion had been breached in Kosovo.
OR reminded us that NATO spokesmen had insisted that the cases of collateral damage were much regretted. But once military action commenced, mistakes were inevitable. He welcomed Nato’s willingness to conduct full enquiries.
CG said that arguments about targeting decisions tended to become confused with those about collateral damage. The checklist for legitimate targets could be summarised as follows:
- people may be targeted if they are members of the enemy's armed forces, or if they are actively and directly contributing to the enemy's military operations;
- as to material objects, three questions had to be asked:
a) Does this object by its nature, location or possible use make an effective contribution to the enemy's military operations?
b) If the answer is yes, by destroying, damaging or capturing it, will a significant military advantage be gained?
If the reply to both these questions is yes,
c) Can the object be attacked without causing disproportionate civilian losses, (meaning casualties or substantial damage to civilians and civilian property)?
Given positive answers, there then remains a general duty on the combatants to exercise reasonable care in carrying out the attack, and to minimise civilian losses. But as OR had pointed out, targeting and delivery were not exact sciences. The bridge was a legitimate target. Probably so too, given its role in the propaganda output of the regime, was the TV station. The bombing of the tractor convoy and the Chinese Embassy were obviously gross mistakes, attributable in the latter case to ignorance of a change of use of the premises. Once Serbia's air defences had been mostly suppressed, NATO planes had flown at lower levels - 6,000' as against 30,000' and 15,000' - which made more accurate targeting possible. It could be argued that had NATO bombers flown lower and been shot down during the earlier phase, the regime would have scored highly in propaganda and allied personnel would have been lost. The decision to fly high (or not at all) was inevitable.