Ex iniuria ius oritur: are we moving towards international legitimation of forcible humanitarian countermeasures in the world community?

Cassese comments on the article by Simma, also in this issue, on the legitimacy of the use of force by NATO in the Kosovo crisis. The author agrees with Simma that NATO’s action falls outside the scope of the United Nations Charter and, by that token, is illegal under international law. This breach is not a negligible one and it is not to be countenanced merely by referring to its exceptional character and by stating that it should not be seen as setting a precedent. The author explores the notion that NATO’s action may nevertheless be taken as evidence of an emerging doctrine in international law allowing the use of forcible countermeasures to impede a state from committing large-scale atrocities on its own territory, in circumstances where the Security Council is incapable of responding adequately to the crisis. The author argues that where a number of stringent conditions are met, a customary rule may emerge which would legitimize the use of force by a group of states in the absence of prior authorization by the Security Council. This is subject to various caveats, including the need to bear in mind the threat to global security which is inevitably involved in the use of force without such authorization. I fully subscribe to the cogent argument put forward by B. Simma that the threat of force, followed by the use of armed violence, by NATO countries against the Federal Republic of Yugoslavia (Serbia and Montenegro) (FRY) is contrary to the United Nations Charter. Those countries acted without any authorization of the Security 24 EJIL 10 (1999), 23–30 2 For an authoritative statement of existing law, see O. Schachter, International Law in Theory and Practice (1991), at 128 ‘[I]nternational law does not, and should not, legitimize the use of force across national lines except for self-defence (including collective self-defence) and enforcement measures ordered by the Security Council. Neither human rights, democracy or self-determination are acceptable legal grounds for waging war, nor for that matter, are traditional just war causes or righting wrongs. This conclusion is not only in accord with the U.N. Charter as it was originally understood; it is also in keeping with the interpretation adopted by the great majority of States at the present time. When governments have resorted to force, they have almost invariably relied on self-defence as their legal justification’. Along the same lines, and with specific reference to self-determination, I take the liberty of referring to my book, Self-Determination of Peoples – A Legal Reappraisal (1995), at 199–200. 3 Supra note 1, at 22. Council under Chapter VII of the Charter, nor could their action be justified as collective self-defence pursuant to Article 51 of the Charter. Hence, recourse to force has taken place outside, and indeed against, the Charter framework. My agreement with Simma ends, however, when he contends that ‘only a thin red line separates NATO’s action in Kosovo from international legality’ and then goes on to note that should the Alliance now set out to include breaches of the UN Charter as a regular part of its strategic programme for the future, this would have an immeasurably more destructive impact on the universal system of collective security embodied in the Charter. To resort to illegality as an explicit ultima ratio for reasons as convincing as those put forward in the Kosovo case is one thing. To turn such an exception into a general policy is quite another. In short, for Simma the illegality perpetrated by NATO countries is not so grave; and, at any rate, it must not set a precedent and should remain exceptional. I respectfully disagree. The breach of the United Nations Charter occurring in this instance cannot be termed minor. The action of NATO countries radically departs from the Charter system for collective security, which hinges on a rule (collective enforcement action authorized by the Security Council) and an exception (self-defence). There is no gainsaying that the Charter system has been transgressed, in that a group of states has deliberately resorted to armed action against a sovereign state without authorization to do so by the Security Council. It would not be appropriate to object that the United Nations Charter has already been violated on many occasions by states resorting to force in breach of Article 2 para. 4: on those occasions states have always tried to justify their action by relying upon (and abusing) Article 51. In the present instance, the member states of NATO have not put forward any legal justification based on the United Nations Charter: at most, they have emphasized that the Security Council had already defined the situation in Kosovo as a ‘threat to peace’. Even cursory consideration of the Charter system shows, however, that this argument does not constitute per se a legal ground for initiating an armed attack against a sovereign state. In the current framework of the international community, three sets of values underpin the overarching system of inter-state relations: peace, human rights and self-determination. However, any time that conflict or tension arises between two or more of these values, peace must always constitute the ultimate and prevailing factor. Forcible Humanitarian Countermeasures in the World Community? 25 Under the UN Charter system, as complemented by the international standards which have emerged in the last 50 years, respect for human rights and self-determination of peoples, however important and crucial it may be, is never allowed to put peace in jeopardy. One may like or dislike this state of affairs, but so it is under lex lata. Nor can one confine oneself to hoping that this dramatic departure from UN standards will remain an exception. Once a group of powerful states has realized that it can freely escape the strictures of the UN Charter and resort to force without any censure, except for that of public opinion, a Pandora’s box may be opened. What will restrain those states or other groups of states from behaving likewise when faced with a similar situation or, at any event, with a situation that in their opinion warrants resort to armed violence? Having made these points, I cannot but add, however, that any person deeply alert to and concerned with human rights must perforce see that important moral values militated for the NATO military action. Admittedly, strategic, geopolitical or ideological motivations may have also contributed to prompting NATO to threaten and then take military action against the FRY. From the angle of law, what primarily counts, however, are the official grounds adduced by NATO countries to justify their resort to force. Their main justification has been that the authorities of FRY had carried out massacres and other gross breaches of human rights as well as mass expulsions of thousands of their citizens belonging to a particular ethnic group, and that this humanitarian catastrophe would most likely destabilize neighbouring countries such as Albania, Bosnia and Herzegovina and the Former Yugoslav Republic of Macedonia, thus constituting a threat to the peace and stability of the region. Be that as it may, any person of common sense is justified in asking him or herself the following dramatic question: Faced with such an enormous human-made tragedy and given the inaction of the UN Security Council due to the refusal of Russia and China to countenance any significant involvement by the international community to stop the massacres and expulsions, should one sit idly by and watch thousands of human beings being slaughtered or brutally persecuted? Should one remain silent and inactive only because the existing body of international law proves incapable of remedying such a situation? Or, rather, should respect for the Rule of Law be sacrificed on the altar of human compassion? My answer is that from an ethical viewpoint resort to armed force was justified. Nevertheless, as a legal scholar I cannot avoid observing in the same breath that this moral action is contrary to current international law. I contend, however, that as legal scholars we must stretch our minds further and ask ourselves two questions. First, was the NATO armed intervention at least rooted in and partially justified by contemporary trends of the international community? Second, were some parameters set, in this particular instance of use of force, that might lead to a gradual legitimation of forcible humanitarian countermeasures by a group of states outside any authorization by the Security Council? Let me first of all consider what may be regarded as the basic premise or root of the NATO intervention in the present international community. 26 EJIL 10 (1999), 23–30 4 Today the prophetic proposition of Kant based on a ‘cosmopolitan or world law’ has come true. In his Eternal Peace (1795), he wrote that ‘the narrower or wider community of all nations on earth has in fact progressed so far that a violation of law and right in one place is felt in all others’. See I. Kant, Moral and Political Writings (C. J. Friedrich (ed.)) (1949), at 448. 5 SC Res. 940 (1994), adopted on 31 July 1994. First, it is a truism that today human rights are no longer of exclusive concern to the particular state where they may be infringed. Human rights are increasingly becoming the main concern of the world community as a whole. There is a widespread sense that they cannot and should not be trampled upon with impunity in any part of the world. Second, the concept is now commonly accepted that obligations to respect human rights are erga omnes and, correlatively, any state, individually or collectively, has the right to take steps (admittedly, short of force) to attain such respect. Third, the idea is emerging in the international community that large-scale and systematic atrocities may give rise to an aggravated form of state responsibility, to which other states or international organizations may be entitled