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The influence of Operation Allied Force on

the development of the jus ad bellum

STEVEN HAINES

When the NATO air campaign against Serbia commenced on March it did so against a less than clear legal backdrop. The British government had long

anticipated that UN Security Council authorization for the operation wouldbe unlikely. It was assumed that Russia would veto any draft resolution put tothe Council and, while Chinas general approach had tended over time towardsabstention in votes on resolutions it could not support, the deployment of its vetoon such a significant issue could not be ruled out.This assessment of the poorchances of success in obtaining a UN mandate for intervention had promptedan early admission that such a use of force could well depart from the strict lawof the Charter. The government accepted that there was no general doctrineof humanitarian necessity in international law, but qualified this statement by

asserting that a limited use of force was justifiable in support of purposes laiddown by the Security Council but without the Councils express authorisationwhen that was the only means to avert an immediate and overwhelming humani-tarian catastrophe.This claim, articulated by Baroness Symons in November in a parliamentary answer to a question from Lord Kennet, represented the under-lying justification for Britains subsequent involvement in Operation Allied Force(OAF) four months later. To say that Londons position (and the positions of itsNATO partners) courted controversy would be something of an understatement.It divided legal opinion and generated a vigorous debate among international

lawyers, both during and after the NATO air campaign.

Operation Allied Force and international legal opinion

That debate was well reflected in the range of opinions expressed by four of Britainsmost distinguished international lawyersProfessors Ian Brownlie, ChristineChinkin, Christopher Greenwood and Vaughan Lowewho were requested toprovide input to the parliamentary inquiry conducted by the House of Commons

Indeed, China went on to become one of the most vocal opponents of NATOs action within the UNand supported the Russian draft resolution condemning NATOs action put to the Council on March. China, furthermore, had already exercised its veto power in February to prevent an extension of

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Foreign Affairs Committee during the winter of .In addition, a selec-tion of opinions was published by the American Society of International Law, withleading scholars Louis Henkin, Ruth Wedgewood, Jonathan Charney, RichardFalk, Thomas Franck and W. Michael Reisman equally divided on the merits ofNATOs action.To give a flavour of the range of views, threeor perhaps fourcommon positions are worth describing.

First there is the orthodox, and generally positivist, view that the use of forceis manifestly unlawful unless undertaken in a manner strictly consistent withChapter VII of the UN Charter. This allows for self-defence under article orempowers the Security Council to authorize diplomatic, economic or militarysanctions for enforcement purposes following an article determination that asituation reflects a threat to the peace, a breach of the peace or an act of aggres-sion. Under article , military sanctions may be authorized, following an article determination, if article economic and diplomatic sanctions have either failedor are deemed most likely to do so. Since OAF was neither a case of article self-defence nor an article enforcement action authorized by the Security Councilit was, strictly speaking, unlawful.

A second, and diametrically opposed, view asserts the legality of the opera-tion largely on the basis of a previously existing customary norm allowing forthe use of force in cases of humanitarian necessity. This reflects a natural lawtendency to privilege individual human rights over the sovereign rights of states,or at least place limits on the extent of the latter in favour of the former. Such aposition can be argued on two levels. The first suggests that there was a customary

right of humanitarian intervention prior to the coming into force of the UNCharter, one that the Charter did not negate (very much a minority view ). Thesecond is that, while the coming into force of the UN Charter may have negatedany pre-existing customary right of humanitarian intervention (if, indeed, therehad been such a right in ), further post-Charter evidence of state practicecombined with opinio jurishas resulted in the re-emergence or development ofsuch a right since.

Fourth Report of the House of Commons Foreign Affairs Committee, vols, June (hereafter Foreign AffairsCommittee Report). The written contributions of Professors Brownlie, Chinkin, Greenwood and Lowe are

also available in A. Boyle, Kosovo: House of Commons Foreign Affairs Committee th Report, June ,International and Comparative Law uarterly: , , pp. . While all four provided written evidence,Professors Lowe and Greenwood gave additional oral evidence to the Committee on Feb. .

See Editorial comments: NATOs Kosovo intervention,American Journal of International Law: , , pp..

Although a distinguished one, including as it did among its proponents Sir Hersch Lauterpacht. See IanBrownlie, International law and the use of force by states(Oxford: Clarendon Press, ), pp. .

Examples of relevant state practice that are invariably quoted in this context include the Indian interventionin East Pakistan (subsequently Bangladesh) in ; the Vietnamese intervention against the Pol Pot regime inCambodia/Kampuchea in ; and the Tanzanian intervention in Uganda that led to the ousting of PresidentIdi Amin in all notably non-western interventions with significant positive humanitarian consequences(although none was justified on those grounds). See Thomas M. Franck, Recourse to force: state action against threatsand armed attacks(Cambridge: Cambridge University Press, ), pp. . Franck goes on to mention also

the French ousting of Emperor Bokassa from the Central African Empire in and the ECOWAS interven-tion in Liberia between and (not authorized by the UN at the time of its initiation but subsequentlyauthorized by the Security Council in ). Arguably, this was especially significant in relation to arguments

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The influence of Operation Allied Force on the development of thejus ad bellum

A third view is positioned between these two opposing standpoints. In essence,so this argument goes, OAF provides further evidence of state practice combinedwith the claim on the part of NATO states that they were acting within the law.While this may well not fully satisfy the rigorous criteria for a customary rightof humanitarian intervention, it could certainly contribute to moving the lawin that direction. Three factors in particular are significant in this respect. First,there was unanimity within NATO, an especially strong regional grouping, threemembers of which are permanent members of the Security Council. Second, therewas the refusal of the Security Council to condemn NATOs action when it votedoverwhelminglyby twelve votes to threeagainst a draft resolution proposedby Russia on March . Finally, tacit ex post facto authorization was arguablyprovided by UN Security Council Resolution (UNSCR) , which coveredthe post-OAF administrative arrangements for Kosovo and included a substantialcontinuing role for NATO (the KFOR operation) alongside the UN Mission inKosovo (UNMIK). Arguably it is the case that while NATO acted unlawfully, bydoing so it was acting in a manner consistent with the way in which the law oughtto develop, especially in the light of the development of international human rightslaw since the Charter was negotiated over years before. It is an inevitable featureof emerging customary law that state practice has to depart from the existing lawin order to create the conditions for the eventual emergence of a new customarynorm. OAF needs to be considered from this perspective, as a legitimate departurefrom existing law as a means of effecting necessary change to it.

A slight variation on this is what might be described as the fourth position. This

stresses the illegality of NATOs action but contends that it represented an excep-tional departure from the established norm, justified on the basis of humanitariannecessity. Rather than using OAF as part of a growing body of evidence of statepractice contributing to a shift in the customary law, some believe that interven-tions of this nature and in such circumstances should, as a matter of principle,remain strictly unlawful, with a breach of the law being exceptionally condoned(as, it could be argued, OAF was by UNSCR ). The third and fourth positionsclearly support the frequently articulated contention that OAF, while strictlyunlawful, was nevertheless legitimate.

At the risk of grossly oversimplifying the detailed submissions each presentedto the Foreign Affairs Committee, Brownlies views corresponded with the firstposition above, Greenwood argued the second,and both Lowes and Chinkinssubmissions can be associated with the unlawful but legitimate assessment. Butit is stressed that these positions were by no means the only ones on offer. Theoverriding sense one gets from reading the wide selection of arguments publishedat the time and shortly after OAF is that while some individual international

This was, for example, the conclusion of the Kosovo Commission, chaired by Justice Richard Goldstone,

which submitted its report to UN Secretary General Kofi Annan in . See Independent InternationalCommission on Kosovo, The Kosovo report: conflict; international response; lessons learned (Oxford: Oxford Univer-sity Press, ).

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lawyers could be quite firm in their views, the legal community as a whole wasfaced with a genuine dilemma created by a situation in which strict legality wasconfounded by humanitarian necessity. Its collective response pointed to a degreeof uncertainty as to the law obtaining at the time.

Faced with a series of opinions from four distinguished international lawyers,each of whom disagreed with the others (and with an awareness of the intensityof the debate within the wider legal community), the Foreign Affairs Committee,not surprisingly, resisted the temptation to reach a clear and unambiguous conclu-sion as to the legality of NATOs intervention. Its report, published in June ,concluded that the NATO intervention ran counter to the specific terms of the UNCharter.This might have been seen as embarrassing to the British government,but the committees conclusions were some way short of a clear declaration thatOAF was unlawful. Indeed, the committee expressed some sympathy with ForeignSecretary Robin Cooks call for the establishment of new principles within theUN framework governing humanitarian intervention. In its recommendationsit suggested that less criticism would have been levelled at NATO if the memberstates had pursued a UN Security Council mandate, failed to obtain the necessaryvote in favour of an authorizing Chapter VII resolution, and then taken the issueto the General Assembly under the Uniting for Peace procedure.

Such a route would, of course, have been extremely risky. If a resolution hadbeen vetoed in the Security Council and then voted down in the General Assembly(in which it would have required a two-thirds majority to succeed), any subsequentNATO military intervention would have been even more legally controversial.

Canada seriously considered the Uniting for Peace option but rejected it for thisvery reason. If one were generally well disposed to the idea of intervention (asthis author was at the time) it would be difficult to criticize the political judge-ment within NATO that determined that it was better to proceed with militaryaction on the basis of an ambiguous legal position (but backed by a humani-tarian imperative) than openly to defy both the Security Council and the GeneralAssembly. The other option would, of course, have been to abandon the inter-vention altogether and remain on the right side of the positive law of the Charter.This was, however, not regarded by any NATO state as politically, strategically or

morally acceptable.There was a conviction in NATO capitals that unless action was taken a

humanitarian catastrophe would unfold, perhaps even exceeding those previouslywitnessed in the Balkans. This view was strongly felt following the massacresin Drenica, Gornje Obrinje and, especially, Racak. It was reinforced by reportsforwarded by the OSCE Kosovo Verification Mission about the deepening crisis inthe province, a crisis which had already resulted in the substantial displacement of

Foreign Affairs Committee Report, vol. , Summary of conclusions and recommendations, recommendations.

See Foreign Affairs Committee Report, vol. , p. . For a summary of the Uniting for Peace process to date, see Dominik Zaum, The Security Council, theGeneral Assembly and war: the Uniting for Peace resolution, in Vaughan Lowe, Adam Roberts, Jennifer

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around a third of a million Kosovar Albanians in the autumn of , long beforethe air campaign commenced.Here the author ought to admit an interest. In he was a military officer serving in the Policy Area of the Ministry of DefenceCentral Staff.In his assessment of the prevailing view in that particular part ofWhitehall at the time, it was the fear of humanitarian catastrophe and profoundconcern for the consequences of a mass exodus from Kosovo of its ethnic Albanianpopulation that drove the decision to intervene, rather than any political aims to dowith removing the government of Yugoslavia or maintaining NATOs credibility.He was also reasonably comfortable with the humanitarian justification deployedby the British government at that time.

That is not to say that he remained comfortable with the manner of the inter-vention. There was much that was controversial about NATOs military action.Despite, for example, the claims of NATOs Supreme Allied Commander, GeneralWesley Clark, that the air campaign was a great success,what it actually seemedto demonstrate was the profound inadequacy of air power in delivering a humani-tarian result. The campaign lasted much longer than expected and failed to preventethnic cleansing, which occurred both during and after the air campaign. Whilemost Kosovar Albanians were able to return to their homes subsequently, the samecannot be said of those Serbs who in turn fled once NATO ground forces enteredthe province following the -day air campaign.

The manner in which the operation was conducted is not, of course, strictlyspeaking, ajus ad bellumissue. We are here concerned with the law relating to thestrategic decision to employ force, not the operational and tactical decisions taken

once the strategic choice had been made. So what of the jus ad bellumissue itself?Did OAF serve to shift the law more in favour of humanitarian intervention thanit had been before? Would a similar intervention without a UN mandate be moreacceptable today than it was in ?

Providing an answer to this group of questions requires us to assess the impactof OAF on the sources of international law. But before we examine those sourcesto establish what the law may or may not say on the matter, it is worth brieflycommenting on what has been done within the UN itself in response to thechallenges posed by NATOs decision to act outside the Charter. The issue of

humanitarian intervention was an important influence on Secretary General KofiAnnans reform agenda. The pursuit of that agenda serves as an important backdropto any assessment of ways in which the law relating to military intervention mayhave shifted during the past decade.

Adam Roberts, NATOs humanitarian war over Kosovo, Survival: , , p. . Although it must be stressed that he was not directly involved in the decision-making about, planning for or

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The UN reform agenda

The experience of dealing with post-Cold War security issues in the Balkans,the Great Lakes region of Africa, the Middle East and Gulf, and elsewhere hasgenerated much comment on the UNs shortcomings. OAF concentrated atten-

tion on one problem in particular: the inability of the Security Council to act toprevent humanitarian catastrophe when action is opposed by even a minority of itspermanent members. Secretary General Annan was sufficiently concerned aboutthis issue to throw down a challenge at the Millennium General Assembly: Ifhumanitarian intervention is indeed an unacceptable assault on sovereignty, howshould we respond to a Rwanda, to a Srebrenicato gross and systematic viola-tions of human rights that offend every precept of our common humanity?Thechallenge was taken up by the Canadian Foreign Minister, Lloyd Axworthy, whoinitiated the International Commission on Intervention and State Sovereignty

(ICISS) to look into this very issue. Although it was not established by the UN,the ICISS can usefully be regarded as the starting point of the review process inrelation to possible reform of UN mechanisms for authorizing the use of force.

It is important to stress at the outset that the ICISS was formed in as adirect consequence of the legal controversy generated by OAF. It carried out mostof its review work during , presenting its report to Kofi Annan in Decemberthat year.

The commission made a number of recommendations, two of which areespecially significant in the context of this article. First, its clearly stated intention

was to make the UN system work and to reduce the possibility that states would infuture bypass the Security Council in cases of potential humanitarian catastrophe.It suggested that the possibility of veto action by the permanent members shouldbe reduced by obtaining agreement on their part not to deploy this sanction unlessvital national interests were engaged. If the veto was still deployed, the Unitingfor Peace route should be pursued. The second important recommendation wasencapsulated in the ICISS reports title: Responsibility to protect. The notion of aright of humanitarian intervention to be exercised by states was to be displacedby a responsibility to protect (correlative to the human rights of those deserving

protection) to be borne by states.

The report was unfortunate in its timing. While the issue of humanitarianintervention had been the big subject in the use of force debate in international

From Kofi Annans Millennium report of the Secretary-General of the United Nations, quoted in Gareth Evans, Theresponsibility to protect: ending mass atrocity crimes once and for all(Washington DC: Brookings Institution Press,), p. .

The author must again declare an interest, having attended a meeting in the Canadian Foreign Ministry inOttawa in December at which members of the commission outlined their approach to their work, andthen having participated in the commissions London round table in Canada House in February . InOttawa he outlined a case for a shift in emphasis from states rights to intervene to some degree of obligationon the part of states, correlative to the rights of individuals being threatened by atrocities. His Ottawa paper

was subsequently published as Steven Haines, Genocide, humanitarian intervention and international law, inM. Mason, ed., Hudson papers,vol. (London: Royal Navy Defence Studies and Oxford University HudsonTrust, ), pp. .

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law circles from the spring of onwards, on September it was ratherdramatically displaced by legal issues to do with combating international terrorism,including the development of law relating to self-defence. And, of course, just months later, the US-led invasion of Iraq without an express UN Security Councilauthorization pushed the issue of humanitarian intervention still further out ofthe limelight.

Against that backdrop, it is not surprising that Responsibility to protectappeared attimes to be gathering dust in New York. But appearances were slightly deceptive.The idea of a shift in emphasis from the right of states to intervene to individualsrights to some measure of protection remained sufficiently powerful to keep thereport in play. Annan, keen to take action to reform the UN and make it fit forthe twenty-first century, established the High-Level Panel on Threats, Challengesand Change in and gave it Responsibility to protectas a source document forconsideration. The panel reported to the Secretary General in with A moresecure world.Annan took this and used it in the production of his own report Inlarger freedom, published in March , which he forwarded to all member statesin the hope that it would provide the basis for a formal UN reform agenda at theworld summit later that year.

These three documents all contained recommendations relating to the autho-rization of the use of force for humanitarian purposes. The UN should remainthe body with authority to approve intervention, and when it provided this itwould be doing so more in recognition of states responsibilities to protect than inacknowledgement of their rights to intervene on humanitarian grounds as such.

Much has been said about responsibility to protect (or RP as it has come tobe known). Alex Bellamy has in this journal recently provided a detailed explana-tion of the significance of the RP principle for military intervention.Refer-ence to RP is now frequently made whenever any humanitarian issue is in thenews. The French Foreign Minister Bernard Kouchner, for example, somewhatcontroversially referred to RP in early in the context of natural disaster inBurma and the Burmese governments reluctance to allow humanitarian aid intothe country. It was invoked by Pope Benedict XVI on his visit to the UN in NewYork in April .It is also frequently referred to in the contexts of both Sudan

and Zimbabwe. Obviously, the principle has contemporary significance although,as Gareth Evans has pointed out most forcefully, references to RP are frequentlycouched in terms and applied to situations for which the original conception was

A more secure world: our shared responsibility. Report of the Secretary-Generals High-Level Panel on Threats, Challengesand Change, UN Doc. A// (New York: United Nations, ).

In larger freedom: towards security, development and human rights for all. Report of the Secretary-General, UN Doc.A// (New York: United Nations, ).

Alex J. Bellamy, RP and the problem of military intervention, International Affairs: , , pp. .There is little, if anything, to challenge in his treatment of the subject and there is nothing to be gained from

going over the same ground. That is not the purpose of this article, which is focusing very specifically onhow, if at all, international law relating to the use of force has changed as a consequence of Operational AlliedForce.

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not designed.Clearly it is an idea with legs. But has a notion that emerged as aconsequence of OAF contributed in any way to a shift in the law?

If the law relating to the use of force in general and humanitarian interventionin particular has changed at all since , that change will be manifest in some wayin the sources of law. These include treaties (or conventions), customary law, theopinions of legal specialists and the judgments arrived at by various internationaltribunals. Treaty law and customary law are fundamental sources; opinionsexpressed by specialists or included in judicial decisions are by and large an inter-pretation of what is contained in or derived from either treaty law or customarylaw, or are a commentary on the often symbiotic relationship between them. Akey question, given doubts as to the veracity of claims that a right of humani-tarian intervention existed in customary law in , is to do with whether ornot a new norm has crystallized since. But before attempting an answer to thatquestion we need first to consider relevant treaty law. Essentially, this is about theUN Charter.

Treaty law and the law of the Charter

There has been no new treaty dealing with the legal framework for the use offorce since OAF. It would have been rather surprising if there had been. Despitethe massive increase in the range and scope of treaties in the last century, thoseon the use of force are extremely rare. Indeed, the full range agreed duringthe course of the twentieth century consists of just three: the League of

Nations Covenant; the Pact of Paris (or KelloggBriand Pact); and the UN Charter. Effecting substantial change to the UN Charter is by no meanseasy or common. Formal changes in the past have been restricted to those thathave been rendered politically desirable by increases in the membership of theorganization. The most significant change of relevance to the use of force hasactually not been achieved by any formal amendment. In the earliest days of theUN, the provision in article () that required the concurrent vote of all fivepermanent members on all non-procedural votes (including, of course, thoseapproving resolutions under Chapter VII of the Charter) was dispensed with

and a practice established that allowed for a positive decision to be made withinthe Council despite the abstention of a permanent member in the voting.The Charter provisions relating to voting remain today as they were originallydrafted, but the law of the Charter as amended by practice ignores the need forthe affirmative vote.

Evanss book on the subject, Responsibility to protect, is essentially an attempt to define RP in ways that donot render it exclusively concerned with coercive humanitarian/military intervention or include under itspurview issues that are less serious than what he refers to as mass atrocity crimes; to establish that it is notabout the protection of human rights in the round (see Evans,Responsibility to protect, pp. ).

In article of the statute of the International Court of Justice, the sources of law also include general prin-ciples of law recognized by civilized nations, but these have not changed since and require no furtherconsideration here.

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As Responsibility to protect led to A more secure worldand on to In larger freedom,there was some hope among advocates of UN reform that a further shift in practicemight occur if the permanent members all agreed with the High-Level Panelsproposal that they should not vote down a draft resolution authorizing militarysanctions for humanitarian purposes related to genocide and large-scale humanrights abuses. This might be referred to as the Chechnya clause, given theway that it was expressed in the ICISSs report.Clearly, if an intervention wasbeing proposed that directly affected a permanent member, a (politically unlikely)decision to go ahead could have potentially catastrophic consequences. To avoidthis, the veto would be retained. So, in the case of a proposal advocating inter-national intervention in Chechnya, Russia could have legitimately issued a veto.However, in the case of Kosovo (always the backdrop to this particular theme ofreform), neither China nor Russia could have argued vital national interest and soboth would have been obliged to abstain in any Security Council vote on an autho-

rizing Chapter VII resolution. The ICISS referred to this approach as constructiveabstention. Whether one regards hopes of such change as reasonable or hopelesslynaive, the fact is that nothing of the sort came to pass. If it had, one can assume thatthe agreement of a more robust Chapter VII resolution on the situation in Darfur,for example, would have proved possible, with China complying with the newnorm by not standing ready to veto.

Despite general disappointment at the final outcome of the world summit,it did not fail entirely to effect some measure of change. The General Assemblyvoted unanimously on September on a resolution to endorse the summits

outcome document,

paragraphs of which dealt with the responsibility toprotect populations from genocide, war crimes, ethnic cleansing and crimes againsthumanity. While General Assembly resolutions are not legally binding, someprove particularly significant in relation to the development of international law;this might prove to be one such. Importantly, this act by the General Assembly wasfollowed up by the Security Council on April . Operative paragraph ofUNSCR , on the protection of civilians during armed conflict, reaffirmed theprovisions of paragraphs and of the World Summit Outcome Documentand made reference to RP.

Proponents of RP have been able to point to both resolutions as providingUN support for their cause. Of course, the actual significance of two or threeparagraphs in a large document (containing a total of paragraphs) beingendorsed by the Assembly can be overstressed. In the Councils case, it waslimiting itself to brief reference to RP in the context of a resolution on a veryspecific issuethe protection of civilians during armed conflict. Further, neitherAssembly nor Council said anything about the criteria for determining when theuse of force in the pursuit of humanitarian purposes would be justified.What

A more secure world, para. .

Responsibility to protect, para. .. UN General Assembly Resolution /, Sept. . Especially given the degree of dissent expressed by various states, both on the day of the vote and subsequently,

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has certainly not been forthcoming is a clear and unambiguous acknowledgementof the notion of RP, what it means and what its consequences are likely to be.

Since the General Assembly supported the world summit outcome document,a large number of states have pointed out that such support should not be readas an endorsement of RP as such, which many still see as a cloak for unilateralwestern interventionism. In interpreting RP in this way, however, opponents areforgetting one important factthat none of the RP-related documents (Respon-sibility to protect,A more secure world, In larger freedomor the world summit outcomedocument) have said anything other than that military intervention will require aSecurity Council mandate to confer legitimacy. Far from creating a new exceptionto the Charter ban on the use of force, they all place the ultimate use of force inthe gift of the Council acting under Chapter VII.

In relation to the law of the Charter, about the most that can be claimed, there-fore, is that whereas, prior to the world summit, the Security Council acted onthe basis of states collective rights to use force (rights effectively transferred to theSecurity Council by states on their ratification of, or accession to, the UN Charter),in future the Council may well increasingly be seen as acting in the light of theinternational communitys obligation to protect the rights of victims or potentialvictims of mass atrocity crimes. This might be construed as a paradigm shift in thejurisprudential underpinning of the Security Councils powers to authorize force.It must be admitted, however, that it may have no practical effect. Interventionsmay or may not be authorized by the Security Council in the future, regardless ofwhether it is acting in exercise of a collective right or in recognition of a collective

obligation.This is not, however, to suggest that such a shift is only of academic interest.

The actual extent of the shift in the jurisprudential underpinning of the employ-ment of force cannot yet be finally defined; it will be revealed over time, in thepractice of the Security Council and in the future development of customary law.If it becomes the case that states increasingly accept a legal responsibility to protect,it is at least conceivable that they will also develop a greater tendency to intervenewhen extreme humanitarian catastrophe either occurs or seems imminent, even ifthat greater tendency is only marginal.

Customary law

For the moment we must rely on an analysis of practice to date as part of ourassessment of the legal impact of OAF. It is important to recognize that customarylaw combines two elements: state practice and opinio juris. Only if states act becausethey believe themselves to be exercising a legal right or complying with a legalobligation are they demonstrating that practice is matched by the required opiniojuris.

Perhaps the most apposite comment one can make about state practice in relationto humanitarian intervention since is that there has been precious little of it.

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decade since has been to do with the so-called global war on terror and Iraq.Neither the invasion of Afghanistan nor the invasion of Iraq was motivated princi-pally by humanitarian concerns, despite claims since that there have been positivehumanitarian consequences. The invasion of Afghanistan was justified by referenceto self-defence and was almost unanimously supported by the UN membership.The invasion of Iraq, in contrast, was not specifically authorized by the UN but,even if one accepts the minority legal view advanced by Britain and the US thatUN Security Council resolutions did provide authority for the invasion, neitherthey nor the invasion itself were about the protection of people from mass atrocitycrimes.Claims that Iraq was RP in action are just plain wrong.

The only two examples of intervention for expressed humanitarian purposesinitiated since OAF have been those into East Timor and Cte dIvoire, in and respectively. Both were authorized by the Security Council. (Thereare, of course, continuing operations in the Balkans and in Africa that commencedprior to OAF, but these were all authorized by the Security Council.) There is,therefore, no evidence in state practice that can be deployed to support what somebelieved was an emerging norm allowing for unilateral humanitarian interventionat the time of OAF.

Further, there is ample evidence of negative progressthat is, situations inwhich humanitarian intervention might have been consistent with the sorts ofarguments deployed by NATO states to support their intervention in , butwhich have not, so far at least, provoked the same military response. The situationsin both Darfur and Zimbabwe would seem, prima facie, to fulfil just the conditions

necessary to render humanitarian intervention appropriate.In the case of Zimbabwe, no Chapter VII mandate for military intervention

has been authorized because, despite the appalling nature of the Mugabe regime(as displayed in the substantial crimes against humanity in Matabeleland between and , and the continuing destruction of the economy leading to masshuman distress and displacement), no state is prepared to propose interventionin response. Of course, if South Africa and the African Union (AU) did want tointervene it is certainly possible that a UN Security Council authorization wouldbe forthcoming.This would confirm the existing law of the Charter. Since there

has been no intervention or any apparent desire to intervene, the case of Zimbabwedoes nothing to advance the cause of humanitarian intervention in customary law,let alone that of a unilateral nature. If anything, it puts it back.

The case of Zimbabwe may be instructive, but no situation is as significant asthat which has evolved in the Darfur region of Sudan over the last five years.While the International Commission of Inquiry on Darfur was not able to

The relevant resolutions relied upon are (), () and (). A point made forcefully by Evans in Responsibility to protect, pp. . See also Ramesh Thakur, Responsibil-

ity to protect and the war on Saddam Hussein, in Ramesh Thakur and Waheguru Pal Singh Sidhu, eds, TheIraq crisis and world order: structural, institutional and normative challenges(Tokyo: United Nations University Press,), p. .

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conclude that genocide had been committed, it did state that this should not betaken in any way as detracting from the gravity of the crimes perpetrated in thatregion. International offences such as the crimes against humanity and war crimesthat have been committed in Darfur may be no less serious and heinous thangenocide.Genocide is a difficult crime to identify, given the central importanceof precise motive. For many, the deaths of almost a quarter of a million peopleand the displacement of approximately two million more represent genocide inall but name. Whatever we may choose to call it, the fact that the humanitariancatastrophe that has gripped that region for over five years has resulted in not asingle robust Chapter VII Security Council resolution is arguably an internationaldisgraceand more so in the light of the international breast-beating that wenton following events in Rwanda. No such resolution has been possible becauseChina would veto it in order to protect its interests in Sudanese oil.

Gareth Evans points to Darfur as an RP situation but is reluctant to supportthe view that military intervention would help the overall situation, given thebroader context within Sudan.Notwithstanding Evanss position, Darfur wouldseem to many to present precisely the circumstances that those justifying theNATO intervention over Kosovo believed ought to qualify for exceptionalism inrelation to the law of the Charter. Neither the AU nor the UN has been able signif-icantly to improve the situation with the military forces they have deployed. Onewonders whether or not either Britain or the US would have pushed for action ifthey had not been preoccupied with Iraq and Afghanistan. Have they convenientlyhidden behind the inability of the Security Council to deliver a robust Chapter VII

mandate, either because they are not in a position to intervene given other preoc-cupations, or because they simply do not wish to become embroiled in a messysituation not directly affecting their interests? However one answers this question,and whatever ones view about the potential benefits of military intervention, therelevant conclusion is that the situation in Darfur and the international reaction toit have done absolutely nothing to advance the cause of an emerging customarynorm to do with humanitarian intervention unauthorized by the UNand, justlike events in Zimbabwe, may well also have put it back.

If state practice appears somewhat uninspiring to proponents of a norm

supporting unilateral humanitarian intervention if the UN will not act, then theywill certainly get no succour from an examination of the extent of relevant opiniojuris. The Belgian international lawyer Olivier Corten has recently provided anexcellent analysis of just how little support states have given to the view that acustomary norm supports unauthorized humanitarian intervention. The practiceafter shows a clear and categorical refusal to allow a unilateral right ofmilitary intervention under international law The statement of positions wehave laid out are numerous, varied and concurring. We can only ask ourselves whythe quasi-totality of states are so reluctant to admit an idea which, at first sight,

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General(Geneva: Jan.

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seems generous enough.To extend this, Corten detects no generality of supportwithin the international community for the view that there is a legal obligation(or right) to intervene in extreme circumstances of humanitarian distress causedby mass atrocity crimes.Those who do believe there to be such an obligationor right tend to believe that it should only be exercised following UN SecurityCouncil authorization. There is emphatically no generality of belief such as wouldbe necessary to engender the degree of opinio jurisrequired to support a shift incustomary law in favour of the sort of unilateral action taken by NATO in .Further, even among the NATO states that intervened then there is less than fullconviction that such intervention is lawfulor likely to become so any time soonusing Kosovo as a precedent.Belgium, admittedly, argued strongly in favour ofthe lawfulness of unilateral humanitarian intervention at the International Courtof Justice (ICJ) in the legality of the use of force case brought by Yugoslavia againstten NATO states. But the ICJ refused provisional measures on the ground that itdid not have prima facie jurisdiction on the merits of the case. As a consequence,there was no judgment on the legality or otherwise of NATOs intervention.Nevertheless, the court did take the opportunity to express its profound concernabout the use of force by NATO in Yugoslavia. Interestingly, a number ofNATO members, including the US and Germany, have stressed the exceptional orsui generisnature of the Kosovo intervention.While the practice manifest in OAFseems supportive of the development of a new norm, the evidence of opinio juristomatch that practice, both at the time and since, is substantially less convincing.

Conclusions

What all of this leads to, inexorably, is the conclusion that unilateral humani-tarian intervention as exercised by NATO in OAF was strictly unlawful then andwould be so today. Claims at the time that the intervention was lawful as a resultof a customary norm already established were, on balance, somewhat wide ofthe mark. What seems to be the most appropriate conclusion is that the positivistinterpretation, most associated with Brownlie at the beginning of this article,was and remains correct, but that there may be an exceptional moral justification

for a breach of international law to mitigate the effects of potentially extremehumanitarian abuse, when the UN Security Council is unable to act because of the

Olivier Corten, Human rights and collective security: is there an emerging right of humanitarian interven-tion?, in Philip Alston and Euan MacDonald, eds, Human rights, intervention and the use of force(Oxford: OxfordUniversity Press, ), p. .

Indeed, as Adam Roberts has noted, there are some large and powerful states, such as China, India and Russia,that have expressed strong opposition. See his Law and the use of force after Iraq, Survival: , , p..

See the discussions in Christine Gray, International law and the use of force(Cambridge: Cambridge UniversityPress, ), pp. ; Michael Byers and Simon Chesterman, Changing the rules about rules? Humanitarian

intervention and the future of international law, in J. L. Holzgrefe and Robert Keohane, eds, Humanitarianintervention: ethical, legal and political dilemmas(Cambridge: Cambridge University Press, ), pp. .

ICJ Reports () , International legal materials, vol. , , at p. .

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Steven Haines

deployment or likely deployment of a veto. The corollary of this position is thata customary norm in favour of unilateral intervention did not exist at the time ofOAF. The expectation held by some that OAF would contribute to the emergenceof such a norm thereafter has so far not been realized.

The author has to admit to being a little disappointed by this conclusion. Havingbeen attracted to the argument for humanitarian intervention by NATO in ,having then had the privilege of making a contribution to the work of the ICISS,and having argued for intervention in extreme humanitarian circumstances evenwhen the UN Security Council was incapable of delivering an authorization, hehoped to be able to conclude that OAF had acted as a catalyst for some degree ofshift towards a new customary norm. After a fresh look at the issues, it would seemthat it did not. Nor is it likely to do so in the foreseeable future.

What is not in any doubt at all is that UN Security Council authorizationremains central to the legitimacy of humanitarian intervention. Nevertheless, anexceptional breach of the law being condoned in extreme circumstances remainsa possibility, albeit one not enthusiastically favoured by all. At the heart of thispossibility is the conflict between strict legal positivism on the one hand and acombination of common sense and morality on the other. As Franck has noted:Law is strengthened when it avoids absurdly rigid absolutesfor example, byrequiring passivity in the face of destruction of entire populationsbut only ifexceptions intended to prevent such reductio ad absurdumare clearly understood andapplied in a manner consonant with agreed notions of procedural and evidentiaryfairness.

So OAF does not appear to have changed the law in such a way as to renderunilateral humanitarian intervention a lawful exception to article () of theCharter. Nevertheless, it did have some effect. It led to one significant develop-ment that may come to mean more in the future than it does at present. Respon-sibility to protect emerged as a result of a process initiated to take account of thedilemma faced by NATO in . It must be right that intervention for humani-tarian effect should be predicated on the rights of the individuals who are vulner-able rather than on the sovereign rights of states to act as they wish within theinternational system. The sovereign right to intervene (albeit a collective and not

a unilateral right) should give way to a collective acceptance of a responsibility totake appropriate action to protect the vulnerable from mass atrocity crimes. It isthat for which OAF acted as a catalyst, and that which should come to be seen asits normative legacy.

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